FIELDS, J.
In this action, plaintiffs and appellants, Dwight R. (Dwight) and his two minor daughters, R.R.1 and R.R.2, sued defendants and respondents, County of San Bernardino (the County) and four social workers employed by the County Department of Children and Family Services (CFS): Traci Washington, Monique Lang-Townsend, Deanna Avey-Motikeit, and Sonja Flowers (the social worker defendants). Plaintiffs alleged federal civil rights claims against the social worker defendants, a Monell
The federal civil rights and state law tort claims are based on the social worker defendants' alleged judicial deception in juvenile court proceedings for the girls, which resulted in the girls' detention outside Dwight's custody. Based on reports of two mandated child abuse reporters, the social worker defendants alleged Dwight was sexually abusing R.R.1, but this allegation was later determined to be unfounded. In their Monell claim, plaintiffs allege the County had a custom and practice of allowing CFS social workers to falsify evidence in juvenile court proceedings, and this custom was the "moving force" or cause of the social worker defendants' federal civil rights violations. Plaintiffs also seek declaratory and injunctive relief prohibiting such County practices. At the time of the girls' detentions, in April and October 2009, Dwight and his former wife, Nichola R. (Nichola), were engaged in a contentious dispute in the family court concerning the girls' custody and visitation.
The trial court granted the County's motion for summary judgment, granted the social worker defendants' separate motion for summary judgment, and entered judgments in favor of all defendants. In this appeal, plaintiffs claim defendants failed to meet their initial burden of production, and plaintiffs raised triable issues in opposing the motions.
We conclude the motions were properly granted. Defendants met their initial burdens of production, and plaintiffs failed to raise triable issues of fact. Based on all the evidence adduced on the motions, no reasonable juror could conclude the social worker defendants engaged in judicial deception in the juvenile court proceedings. For this reason, plaintiffs' federal civil rights claims, state law claims, and Monell claim lack merit. The girls' state law claims also fail because they did not file a government claim before bringing suit on the state law claims.
Accordingly, we affirm the judgments.
Dwight and Nichola are the parents of R.R.1, born in 2004, and R.R.2, born in 2006. In September 2008, Nichola petitioned for a divorce from Dwight and in October 2008, Nichola obtained a domestic violence restraining order against Dwight. Around this time, Dwight moved in with his parents. Nichola was granted sole physical and legal custody of the girls, and Dwight was allowed three visits each week.
In November 2008, Dwight and Nichola attended a "custody mediation" session through the family court and agreed on a temporary visitation schedule: Dwight would have three visits each week, supervised by the paternal grandparents, but no overnight visits. At this time, Nichola expressed no concern that Dwight was sexually abusing the girls. In December 2008, the family court adopted the parents' agreed-upon visitation schedule.
On February 24, 2009, the parents attended a second mediation session through the family court. Nichola again made no sexual abuse allegations against Dwight. She also did not oppose overnight visits, but she would not agree to unsupervised visits. No agreement was reached, but the mediator recommended that the court allow Dwight unsupervised, overnight visits.
In February 2009, Nichola contacted Christy B., a licensed marriage and family therapist and mandated reporter of child abuse. (Pen. Code, § 11166.) Nichola told Christy B. she was in the process of "finalizing a Visitation Schedule" with her ex-husband, Dwight, and was worried about R.R.1 who was "starting to exhibit some behavioral issues, for instance, bed wetting." In March 2009, Nichola contacted Christy B. again, and said R.R.1 was "still exhibiting behavioral issues and was acting clingy and whining."
During a March 16, 2009, hearing, the family court adopted the mediator's recommendation based on the February 24 mediation session. The court granted Dwight unsupervised visits on Tuesdays and Thursdays, and "custody" of the girls on alternating weekends "in the home of the paternal grandparents." Nichola later testified she was "[d]isgusted" and "appalled" with the family court's revised visitation order. During the March 16 hearing, after the family court said it would accept the mediator's recommendation, Nichola "alleged for the first time" that Dwight had sexually abused the girls. That afternoon, Nichola went to "Child Protective Services" and spoke to Washington.
Four days later, on March 20, 2009, Nichola brought R.R.1 to Christy B. for R.R.1's "first therapy session." In a declaration signed on January 26, 2011, Christy B. explained she had asked R.R.1 to draw pictures of a tree, a house, herself and her favorite animal, and R.R.1 did so. Christy B averred: "Based on the pictures R.R.1 drew, as it pertained to her father's house and sleeping arrangements she shared with her father, and based upon my professional opinion, I had a reasonable suspicion that there may be sexual abuse."
Christy B. did not immediately convey her suspicion to Nichola because she "knew" Nichola had custody of R.R.1, and she believed R.R.1 would be staying with Nichola that upcoming weekend of Friday, March 20 to Sunday, March 22. On March 24, 2009, Christy B. completed a suspected child abuse report (Pen. Code, § 11166), and reported her suspicion to CFS. Christy B. denied "instruct[ing]" or "guid[ing]" R.R.1 "into making certain statements and drawings, to conjure up sexual abuse allegations against her father Dwight."
In her report to CFS, Christy B. wrote that, during the March 20 therapy session, R.R.1 drew pictures of beds in Dwight's house and said she and Dwight slept together "and didn't wear any pajamas." When Christy B. asked R.R.1 if she could draw a picture of herself and Dwight in bed together, R.R.1 drew a picture of Dwight with no clothes on, and included a part of Dwight she called "a long potty" with an attachment she called "his potty or germs." When asked what his "potty" or "germs" were, R.R.1 replied "it came from her daddy's long potty and when that happens she moves away from being by his side and moves up by the pillows."
After March 16, 2009, Dwight continued to have his parents monitor all of his visits with the girls despite the family court order allowing him unsupervised visits. Dwight did this "as a precaution because of Nichola's false sexual abuse accusations." Dwight set up "an elaborate video recording system" in his parents' home "to ensure that all aspects of all visits with R.R.1 and R.R.2 were video and audio recorded." Dwight's first visits with the girls after March 16 were on Tuesday, March 17, and Thursday, March 19. According to Dwight, these visits were "smooth and uneventful, without any problems," and the paternal grandparents were present throughout and supervised both visits.
The girls also spent the weekend of March 20 to 22 with Dwight at the paternal grandparents' home. This was the girls' first overnight visit with Dwight and the first time the girls had spent the night at the paternal grandparents' home. R.R.1 thus had "no frame of reference" for "any sleeping arrangements" in the paternal grandparents' home, as she "had never seen any of the bedrooms in that home." The paternal grandparents were present throughout the weekend visit, and video cameras were "place[d] all over the house." After the visit, Dwight learned that R.R.1 had seen Christy B. for a therapy session on Friday March 20.
On April 1, 2009, Nichola filed an ex parte application in the family court, seeking to suspend Dwight's visitation on the ground he had "engaged in grossly inappropriate sexual behavior" with R.R.1. Nichola, her mother, L.S., and Christy B. each filed declarations in support of the application. Nichola and the girls lived with L.S. L.S. was employed by the Los Angeles County Office of Education as a "professional paraeducator" specializing in "extremely disturbed children, including victims of child sexual abuse." Like Christy B., L.S. was a mandated reporter of child abuse and neglect. (Pen. Code, § 11666.) On March 22, 2009, while the girls were still visiting Dwight at the paternal grandparents' home, L.S. reported Dwight's suspected "sexual" and "emotional" abuse of the girls to CFS.
In their declarations filed in the family court, Nichola and L.S. each described how R.R.1 was exhibiting behavioral problems, including bed-wetting, during the week of March 16, and was "very withdrawn" and acting out sexually following the March 20-22 visit with Dwight. Among other things, R.R.1 tried to insert a colored marker into her vagina, saying she was "`playing the talking potty game'" and "was trying to make herself bigger `. . . [b]ecause Daddy is big, very big, like the zebra elephant at the zoo.'" In her declaration, Christy B. recommended suspending Dwight's visitation pending "a full Evidence Code Section 730 evaluation" of the parents and the girls. Christy B. averred that, during the March 20 therapy session, R.R.1 first drew a picture of a house, saying it was the house she lived in, and "`Daddy'" lived "`in another house in the mountains.'" When Christy B. asked R.R.1 whether she wanted to draw a picture of her "Daddy's" house, R.R.1 did so, and the drawing of that house had "beds with people in the beds." R.R.1 said her paternal grandfather slept with R.R.2, but R.R.1 "eventually" "put [R.R.2] in a bed by herself," put the grandparents in a bed by themselves, and put herself and her father in the same bed. R.R.1 then drew another bed, put her father alone in that bed, and put herself and R.R.2 in the same bed. R.R.1 also said "`Daddy sleeps with no clothes on.'"
At the April 3, 2009, hearing on Nichola's ex parte application, the family court ordered Dwight's visitation changed from unsupervised to supervised, and approved the paternal grandparents as supervisors. The court also appointed a child custody evaluator (Evid. Code, § 730), after the parents agreed to the appointment. The parents were ordered to return to the family court on April 7 to "update the court." Later on April 3, 2009, when the paternal grandparents went to pick up the girls for their April 3-5 weekend visit with Dwight, CFS representatives were present and refused to allow the girls to leave with the paternal grandparents. That weekend, Dwight was served with a juvenile court detention warrant for the girls.
As noted, on March 22 and 24, 2009, L.S. and Christy B. reported to CFS their suspicions that Dwight was sexually abusing the girls. On March 26, Washington was assigned to investigate the referrals. On March 30, Washington spoke by telephone with Christy B. Washington's notes from the conversation show, among other things, that R.R.1 "denied that anyone touches her," but that R.R.1 also made drawings of "beds with people in [them]" and drew an "oblong thing between legs" she called a "long potty."
On March 31, Washington met with Nichola, L.S., and the girls. Nichola told Washington she was having an "ongoing family law custody dispute" with Dwight. R.R.1 again denied that Dwight had touched her inappropriately or hurt her, said she has fun at Dwight's house, and said she slept alone there. Following the meeting, Washington "suggested that Nichola . . . immediately seek an ex parte hearing in Family Law Court to disclose this new information [alleged in the referrals] and to request changes in the visitation order [pending] further investigation of the allegations."
On April 3, Nichola again met with Washington and explained what had happened at the April 3 ex parte family court hearing, including that Dwight was allowed to continue visiting the girls. That day, Washington and Lang-Townsend attended a Daily Assessment Review Evaluation (D.A.R.E.) Committee Meeting for the girls. At the meeting, Washington presented all the information she had gathered during her investigation, and expressed concern that "there was no intervention by the [family] court to address any visitation issues given the concerns [about sexual abuse] that [Nichola] brought forward." The D.A.R.E. committee members instructed Washington and Lang-Townsend to continue the CFS investigation, and "to intervene with the family, to get a detention warrant[,] and proceed with filing a petition."
Following the April 3, 2009, D.A.R.E. meeting, Washington submitted a detention warrant affidavit, and the juvenile court issued the detention warrant at 4:30 p.m. on April 3. The detention warrant authorized CFS to detain the girls with Nichola and remove them from Dwight's custody. Washington did not speak with Dwight or the paternal grandparents before she wrote her affidavit or obtained the warrant.
In her detention warrant affidavit, Washington explained that CFS received sexual abuse referrals on March 22 and 24, explained the content of the referrals, and noted that the parents were "in the middle of a divorce with an open Family Law Case." Washington inaccurately averred that, at the April 3 family court hearing, the court did not change Dwight's visitation—though the court had, in fact, changed it from unsupervised to supervised—and that the girls were "scheduled to be released" to Dwight at 6:00 p.m. that evening "for an unsupervised overnight visit."
Plaintiffs claim Washington falsely reported in her affidavit that (1) Dwight previously had an "unsupervised" visit with R.R.1, (2) the family court did not modify Dwight's visitation, (3) Dwight was to have an unsupervised, overnight visit with the girls beginning at 6:00 p.m. on April 3, and (4) R.R.1 was "evasive" when asked about the sleeping arrangements at the paternal grandparents' house.
Plaintiffs also claim Washington suppressed 15 items of "known exculpatory evidence" in her affidavit, including: (1) R.R.1 said she slept alone at the paternal grandparents' home; (2) Christy B. instructed R.R.1 to draw a picture of Dwight and herself in bed, and prior to the instruction R.R.1 drew Dwight and her in separate beds; (3) Nichola did not (initially) claim Dwight sexually abused or touched R.R.1; (4) when R.R.1 saw Christy B. on March 20, 2009, R.R.1 had never been to the paternal grandparents' home and had never seen the bedrooms in the home; (5) identical abuse allegations had been presented to the family court; (6) Dwight lived with his parents, and his parents supervised all of his visits; (7) Washington had not interviewed Dwight; (8) Washington had not interviewed the paternal grandparents; (9) R.R.1's behavior, as described in the referrals and affidavit, was "within the normal realm of developmental stage for pre-school age child"; (10) R.R.1 denied that Dwight hurt her; (11) R.R.1 has fun at Dwight's house; (12) Nicola and Dwight were in the middle of a contentious custody dispute; (13) the sexual abuse allegations were first raised by Nicola in response to the court's March 16, 2009, ruling allowing Dwight unsupervised visitation; (14) "[n]o credibility determination" was made (by the family court) concerning Nicola's sexual abuse claims; and (15) Washington found R.R.1's denial of sexual abuse to be "rare and atypical" because an abused child will "usually say something about it."
On April 7, 2009, CFS filed a dependency petition for the girls, alleging "failure to protect" jurisdiction under Welfare and Institutions Code section 300, subdivision (b), based on both parents' history of domestic violence and Dwight's "extensive history of drug abuse." The petition also alleged "sexual abuse" jurisdiction under Welfare and Institutions Code section 300, subdivision (d), based on Dwight's sexual abuse of R.R.1. The petition stated, "[t]he child, [R.R.1], has been sexually abused by her father, Dwight," but provided no factual allegations to support this conclusion. Lang-Townsend signed the petition "under penalty of perjury" "for Traci Washing[ton]." CFS Director Avey-Motikeit's electronic signature also appears on the petition. Plaintiffs claim the "unqualified statements" of fact in the petition were false, and that Lang-Townsend suppressed "known exculpatory evidence" in the petition. (Pen. Code, §§ 118, 125.)
On April 7, 2009, Dwight and his parents attended a team decision meeting at CFS offices. Lang-Townsend was present; Washington was not. Lang-Townsend explained CFS's soon-to-be-filed jurisdictional allegations, and Dwight vehemently denied them. Dwight claimed Nichola "concocted" the allegations after the family court changed his visitation from supervised to unsupervised on May 16, 2009, and that the sexual abuse allegations had been presented to and addressed by the family court.
Dwight explained he had been drug-free since before October 2008, and he had tested "clean" in more than 55 consecutive drug tests through his voluntary participation in a drug court pilot program. He also explained he had been living with his parents since September 2008; his parents monitored all of his visits; and the "extensive video/audio recording system" he set up at his parents' home would show that nothing inappropriate happened during the March 20-22 visit. Lang-Townsend declined to review the audio and video recordings.
Washington drafted a detention report for the girls. On April 7, Lang-Townsend signed the detention report "for" Washington. CFS director Avey-Motikeit's electronic signature is also affixed to the report. The detention report explained the evidence supporting the sexual abuse allegations, as relayed to Washington by Nichola, L.S., and Christy B. Plaintiffs claim the detention report "reiterated prior false statements, and suppressed the known exculpatory evidence that was omitted from the Petition."
At the detention hearing on April 8, 2009, the juvenile court (Judge Marsha Slough) found a prima facie case had been established to detain the girls, and placed them in the temporary care of CFS. Dwight was allowed a once weekly, one-hour visit with the girls at CFS offices, "supervised [only] by personnel that is very familiar with allegations in this matter." Dwight was also ordered to drug test. On April 15, Dwight met Washington for the first time, and gave Washington the audio and video recordings of his March 20-22 visit.
On April 27, R.R.1 underwent a forensic interview at the Children's Assessment Center, and Washington observed the interview through a one-way mirror. The interviewer reported that R.R.1 "had a difficult time staying on task." R.R.1 denied "any hurting or hitting to any part of her body," "any touching or bothering to any part of her body," and also denied "touching anyone else's body or being asked to touch anyone else's body." R.R.1 said she had seen Dwight's "potty," referring to his genitals, when he was in the bathroom "go[ing] potty" and she was watching him from "outside." The interviewer concluded it was "unclear whether abuse occurred due to the lack of disclosure."
At an initial jurisdictional/dispositional hearing on April 29, the juvenile court acknowledged it was still awaiting the Children's Assessment Center's report, and that Dwight's audio and video recordings had been delivered to CFS for its "assessment." The court noted that "serious allegations" were being raised about Dwight, and the court was "troubled also about a potential stirring of the pot by [Nichola] and the potential emotional damage that could occur to the children if, in fact, after further investigation all this is found to be unfounded." The court said the case "smack[ed]" of a family law dispute, told Nichola she would be "in big trouble" if the allegations against Dwight turned out to be unfounded, and set a "further JD" hearing.
At the further jurisdictional/dispositional hearing on July 7, the court (Judge Marsha Slough) dismissed the sex abuse, drug abuse, and domestic violence allegations against Dwight. CFS determined that the sexual abuse allegations were "unfounded," meaning, according to Washington, that they "absolutely did not happen." CFS and the parents agreed, and the juvenile court found, that the court had jurisdiction over the girls pursuant to an amended "failure to protect" allegation that "family dysfunction" between the parents placed the girls "at risk of emotional harm and/or distress." (Welf. & Inst. Code, § 300, subd. (b).)
The juvenile court placed the girls with Nichola and ordered supervised visits for Dwight on Tuesdays, Thursdays, and alternating weekends—the same visitation schedule and terms the family court had ordered on April 3, 2009. The juvenile court also approved paternal grandparents as visitation monitors, and ordered the parents to participate in a case plan.
In August 2009, the dependency case was assigned to Flowers. Dwight had multiple conversations and meetings with Flowers, and advised her that he was still recording the girls' visits. On October 15, 2009, Flowers suspended Dwight's visits. On October 26, Flowers filed a nonappearance review packet, explaining why she suspended the visits and was recommending that the paternal grandparents and a paternal uncle no longer be allowed to supervise the visits. Lang-Townsend reviewed and approved the review packet.
In the review packet, Flowers explained that, during an October 14 therapy session, Christy B. asked R.R.1 how her visits were going. R.R.1 said that during her last overnight visit Dwight "walked in naked" after she put her pajamas on and got ready for bed. R.R.1 said she told Dwight to put some clothes on, and he did after telling R.R.1 "it was a secret and not to tell anyone." R.R.1 then asked Christy B., "`Do you want to record me?'" Christy B. asked R.R.1 whether anyone recorded her, and R.R.1 said, "`I don't get recorded with my clothes on.'"
Flowers called Dwight on October 15, shortly after the girls began their weekend visit with Dwight. Dwight and the paternal grandfather brought the girls to CFS offices, where R.R.1 told Flowers the same things she told Christy B. the day before. Later on October 15, the paternal grandfather sent Flowers a note, saying that what R.R.1 claimed happened was "a lie" and "`blatantly wrong.'" Dwight also denied R.R.1's allegation. Dwight claimed R.R.1 told him that "`mommy told me you sleep naked.'"
Flowers also reported that both Dwight and his therapist, Dr. Selim, admitted to Flowers that Dwight told Dr. Selim, during a therapy session, that Dwight had asked R.R.1 about "lying down with her naked." When Flowers spoke with Dr. Selim about the matter on October 21, Dr. Selim told Flowers that Dwight's question was "inappropriate," "impulsive," and "emotionally abusive" to R.R.1 Flowers was critical of Dr. Selim for not reporting Dwight's question to R.R.1, but Dr. Selim claimed Flowers misrepresented what Dr. Selim said in her review packet. Dr. Selim did not believe Dwight had been sexually inappropriate with the girls. Flowers was also concerned that Dwight had an "unhealthy focus" on Nichola and was becoming increasingly anxious and stressed because he believed Nichola was intent on sabotaging his visits and chance to reunify with the girls. Dwight claimed Flowers told him his concerns about Nichola's "false allegations" were "normal, and justified."
In the review packet, Flowers also criticized Dwight and the paternal grandparents for not seeking medical attention for R.R.1 after she suffered a bump on her head during a weekend visit on September 20. Dwight and the girls were playing a game which entailed the girls jumping from stairs into Dwight's arms. R.R.1 hit her head on the tile floor when Dwight missed catching her. Nichola complained to Flowers about the incident, and Flowers addressed the matter with Dwight. Dwight agreed not to play the jumping game anymore, but appeared to disagree with Flowers that, in an abundance of caution, he should have sought medical attention for R.R.1. The paternal grandfather also did not believe R.R.1 needed medical attention. For all of these reasons, Flowers recommended that the court limit Dwight's visits to two hours, twice weekly, supervised by CFS. Flowers recommended against allowing the paternal grandparents or a paternal uncle to supervise the visits, "as they did not notify [Flowers] of [Dwight]'s remarks or [R.R.1's] head injury."
Plaintiffs claim Flowers (1) unlawfully seized the girls from Dwight "without judicial authorization," (2) "falsely reported" that Dwight walked into R.R.1's bedroom naked and told R.R.1 to keep it a secret, (3) misrepresented what Dr. Selim told Flowers on October 21, and (4) suppressed "known exculpatory evidence," including that Nichola told R.R.1 that Dwight sleeps naked, that video recordings showed the incident did not occur, that Nichola was "perceived" as a person who "keeps making false allegations," and that Dwight offered to take a lie detector test to prove his innocence.
At a February 4, 2010, hearing, the juvenile court (Judge Marsha Slough) dismissed the dependency case pursuant to CFS's recommendation. Flowers and Lang-Townsend signed the February 4 addendum report recommending the dismissal. The court received into evidence a "bonding assessment" report by Dr. Kenneth Meyer, a psychologist. Dr. Meyer concluded Dwight had an appropriate, positive, and loving relationship with the girls, and recommended he be allowed "unsupervised visits without the interference of others such as grandparents," and that Dwight stop recording the visits. The juvenile court accepted the recommendation and issued an exit order granting Dwight unsupervised visits pursuant to the same schedule the family court ordered on May 16—Tuesdays, Thursdays, and alternating weekends.
In November 2009, Dwight filed a government claim against the County, CFS, and the social worker defendants, identifying only himself as the claimant. The claim does not identify either of the girls as claimants.
In December 2010, plaintiffs filed their operative second amended complaint, alleging three state law tort claims against all defendants except Avey-Motikeit for false imprisonment, IIED, and child abduction, federal civil rights claims against the social worker defendants for the girls' unlawful seizure and interference with each plaintiffs' right to familial association, and a Monell claim against the County. Plaintiffs acknowledge that their state law tort and federal civil rights claims are based on "identical conduct," namely, the social worker defendants' alleged acts of judicial deception in the juvenile court proceedings.
"The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties' pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute. [Citation.]" (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar).) Summary judgment is properly granted where there are no triable issues of material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).)
A defendant moving for summary judgment bears the initial burden of showing that the plaintiff's causes of action have no merit. (Aguilar, supra, 25 Cal.4th at pp. 849-851.) The defendant meets this initial burden by making a prima facie evidentiary showing either that (1) one or more elements of each cause of action cannot be established or (2) there is a complete defense to each cause of action. (Id. at p. 849; Code Civ. Proc., § 437c, subd. (o) (2).) If the defendant makes this showing, the burden shifts to the plaintiff to produce evidence of a triable issue of material fact concerning the element or defense. (Aguilar, supra, at pp. 849-850.) The defendant also bears an overall "burden of persuasion" that there is no triable issue of fact and the defendant is entitled to judgment as a matter of law. (Id. at p. 850 & fn. 11.)
We review an order granting summary judgment de novo, considering all of the evidence adduced on the motion (except properly excluded evidence) and the uncontradicted inferences the evidence reasonably supports. (Merrill v. Navegar, Inc. (2001) 26 Ca1.4th 465, 476.) We strictly construe the moving party's evidence, liberally construe the opposing party's evidence, and resolve all doubts concerning the propriety of granting the motion in favor of the opposing party. (Szadolci v. Hollywood Park Operating Co. (1993) 14 Cal.App.4th 16, 19.) We review the trial court's ruling, not its rationale. Thus, the trial court's reasons for granting summary judgment are not binding on us. (Kids' Universe v. In2Labs (2002) 95 Cal.App.4th 870, 878.)
In their third cause of action against the social worker defendants for federal civil rights violations (42 U.S.C. § 1983), plaintiffs alleged, in two counts, that the initial and subsequent seizures of the girls from Dwight's custody, through the juvenile court proceedings, violated the girls' Fourth Amendment right against unlawful seizure (count 1), and interfered with all three plaintiffs' Fourteenth Amendment due process right to familial association (count 2).
Both counts are based on the social worker defendants' alleged judicial deception in the juvenile court proceedings. In each count, plaintiffs alleged the social worker defendants acted without probable cause and committed perjury, fabricated evidence, and suppressed known exculpatory evidence (1) in securing the April 3, 2009 juvenile court detention warrant, (2) in obtaining the April 7 detention order, and (3) in detaining the girls, without a warrant, on October 15, 2009.
Under title 42 United States Code section 1983, when a public official acting under color of state law has violated an individual's clearly established federal constitutional right, the individual may sue the public official for damages. (Orin v. Barclay (9th Cir. 2001) 272 F.3d 1207, 1214.) The right to be free from governmental deception in judicial proceedings is a clearly established Fourteenth Amendment due process right, and it encompasses the right to be free from deception by social workers in child removal or detention proceedings. (Marshall v. County of San Diego (2015) 238 Cal.App.4th 1095, 1112-1113; Greene v. Camreta (9th Cir. 2009) 588 F.3d 1011, 1034-1035.) The Fourth Amendment right against unlawful seizure and the due process right to familial association—the rights allegedly infringed by the social worker defendants' judicial deception in the juvenile court proceedings—are also clearly established. (See, e.g., Wallis ex rel. Wallis v. Spencer (9th Cir. 1999) 202 F.3d 1126, 1137, fn. 8.)
Public officials are not entitled to absolute immunity from judicial deception claims. (Beltran v. Santa Clara County (9th Cir. 2008) 514 F.3d 906, 908-909.) But a public official is entitled to qualified immunity, if no reasonable juror could find the official engaged in deliberate or reckless dishonesty in the judicial proceedings. (Marshall v. County of San Diego, supra, 238 Cal.App.4th at pp. 1115-1118.) Qualified immunity "shield[s]" public officials "from undue interference with their duties and from potentially disabling threats of liability." (Harlow v. Fitzgerald (1982) 457 U.S. 800, 806.) The doctrine "`protects "all but the plainly incompetent or those who knowingly violate the law."'" (Carroll v. Carman (2014) 574 U.S. ___ [190 L.Ed 3d 311, 135 S.Ct. 348, 350].) "[Q]ualified immunity is `an immunity from suit rather than a mere defense to liability . . . [and] it is effectively lost if a case is erroneously permitted to go to trial.'" (Pearson v. Callahan (2009) 555 U.S. 223, 231.) The doctrine "applies regardless of whether the government official's error is `a mistake of law, a mistake of fact, or a mistake based on mixed questions of law and fact.'" (Ibid.)
To demonstrate a judicial deception claim, a plaintiff must (1) make a "substantial showing" that the defendant deliberately or recklessly made a false statement or omission of material fact in a judicial proceeding, and (2) establish that, but for the deception, the infringement of the constitutional right (here, the seizure of the girls from Dwight) would not have occurred. (Greene v. Camreta, supra, 588 F.3d at p. 1035; Marshall v. County of San Diego, supra, 238 Cal.App.4th at p. 1112; Franks v. Delaware (1978) 438 U.S. 154, 171-172.) Whether a false statement or omission of fact is material is a question of law for the reviewing court. (Greene v. Camreta, supra, at p. 1035; People Rubio (2004) 121 Cal.App.4th 927, 930-931 [a false statement under oath (perjury) is material if it "`could probably have influenced the outcome of the proceedings. . . .'"].)
The contents of the social worker defendants' juvenile court filings are not in dispute and are described in section II.A, ante. In support of their motion for summary judgment, the social worker defendants denied they acted with deliberate or reckless disregard for the truth or falsity of any of the statements they made in the juvenile court proceedings. This was sufficient to meet their initial burden of showing plaintiffs could not establish their judicial deception claim (or related claims of unlawful seizure and familial association interference), and that the social worker defendants were entitled to qualified immunity. The burden then shifted to plaintiffs to raise a triable issue of judicial deception. (Aguilar, supra, 25 Cal.4th at p. 850.)
Plaintiffs' judicial deception claim is based on three documents filed in the juvenile court: (1) Washington's April 3, 2009, detention warrant affidavit, which resulted in the juvenile court's April 3 detention warrant and CFS's seizure of the girls from Dwight; (2) the original dependency petition and detention report, filed on April 7, 2009, which resulted in the order detaining the girls in CFS custody; and (3) Flowers's October 2009 appearance review packet, in which Flowers explained why she detained the girls from Dwight, without a warrant, on October 15, 2009. We consider plaintiffs' claims concerning each document in turn.
Plaintiffs claim the April 3 detention warrant, signed by Washington and reviewed and approved by her supervisor, Lang-Townsend, included four false statements of fact and suppressed 15 items of known exculpatory evidence.
The first two alleged false statements are that: (1) the family court did not modify Dwight's visitation at the April 3 ex parte hearing, in which Nichola sought to suspend Dwight's visitation pending an investigation of sexual abuse allegations or suspicions against Dwight; and (2) Dwight was to have an unsupervised overnight visit with the girls, beginning at 6:00 p.m. on April 3. These statements were false.
At the April 3 ex parte hearing, the family court did, in fact, modify its March 16 order, which had granted Dwight unsupervised visits, by ordering that Dwight's visits would henceforth be supervised. The family court also approved the paternal grandparents as supervisors. But plaintiffs adduced no evidence that Washington knew these statements were false or acted with deliberate or reckless disregard for their truth or falsity, when she made these statements in her detention warrant affidavit. Thus, no reasonable juror could conclude Washington made these statements with deliberate or with reckless disregard for their truth.
Indeed, undisputed evidence shows Nichola misinformed Washington about what occurred at the April 3 family court hearing. It is undisputed that Nichola met with Washington during the afternoon of April 3, shortly after the family court hearing. Nichola testified she did not recall whether she told Washington that the family court had changed Dwight's visits from unsupervised to supervised on April 3. Nichola acknowledged that she disagreed with the family court's April 3 order; otherwise, she said she would not have met with Washington on the afternoon of April 3. Nichola admitted she may have been "a little frantic" when she met with Washington, and she may have "just said, `Oh, my God, he got a visitation'" without telling Washington that the family court had changed Dwight's visits from unsupervised to supervised. Nichola was asking the family court to suspend Dwight's visits on the ground he had "engaged in grossly inappropriate sexual behavior with [R.R.1]."
Washington's and Lang-Townsend's accounts of what Washington knew on April 3 are consistent with Nichola having misrepresented to Washington that Dwight was to have unsupervised visits from and after April 3. Lang-Townsend recalled that, at the April 3 D.A.R.E. committee meeting, Washington expressed concern that "there was no intervention by the Family Court to address any visitation issues given the concerns [about sexual abuse] that [Nichola] brought forward." On that basis, the D.A.R.E. committee members instructed Washington and Lang-Townsend to obtain a detention warrant and file a dependency petition. Earlier, on March 22 and 24, CFS received mandated reports from L.S. and Christy B. that they suspected Dwight was sexually abusing R.R.1. On March 30, after Washington was assigned to investigate the referrals, Washington met with Nichola, L.S., and the girls. At that meeting, Washington advised Nichola to seek an ex parte family court order suspending Dwight's visits pending an investigation of the sexual abuse allegations.
All of this evidence shows that Washington and Lang-Townsend honestly and reasonably believed, on the afternoon of April 3, (1) that Dwight still had family court-ordered, unsupervised visits, (2) that the girls were in danger of being sexually abused if they were released to Dwight at 6:00 p.m. on April 3, and (3) it was therefore necessary to seek a warrant from the juvenile court to detain the girls. Although we do not condone "forum shopping" on the part of any litigants, Washington and Lang-Townsend were charged with protecting the girls, and all of the evidence shows they honestly and reasonably believed it was necessary to seek the detention warrant.
Dwight points out that the CFS social workers have access to family court records, and argues Washington and Lang-Townsend acted with deliberate or reckless disregard for the truth in failing to ascertain for themselves—independently of Nichola—whether the family court had continued to allow Dwight unsupervised visits at the April 3 hearing. But plaintiffs have not shown that Washington or Lang-Townsend had access to the family court's April 3 ex parte order on the afternoon of April 3.
Nor have plaintiffs shown that Washington or Lang-Townsend acted with deliberate or reckless disregard for the truth in relying on Nichola's misrepresentation to Washington, on April 3, that Dwight still had unsupervised visits, and the girls were to be released to him at 6:00 p.m. on April 3 for an unsupervised, overnight visit. Based on what Washington and Lang-Townsend knew on the afternoon of April 3—that Dwight still had unsupervised visits—they were faced with an emergency and a dilemma that they reasonably resolved in favor of the girls' safety by seeking the detention warrant. If they waited until Monday, April 6, to ask the family court to reconsider its April 3 order, and suspend Dwight's visits, or modify the visits from what they thought were unsupervised to supervised, they could have been placing the girls in imminent danger of being sexually abused.
The other two alleged false statements in Washington's affidavit are: (1) Dwight previously had an "unsupervised" visit with R.R.1; and (2) R.R.1 was "evasive" when, on March 31, Washington asked R.R.1 about the sleeping arrangements at Dwight's parents' house. Neither of these statements was false or materially misleading. The affidavit stated that R.R.1 tried "to put a pen in her potty" after returning from "an unsupervised visit" with Dwight. It was true that Dwight had had an "unsupervised" visit with R.R.1 before April 3. On March 16, the family court adopted the mediator's recommendation and allowed Dwight unsupervised visits, including overnight visits. Dwight then visited the girls on March 17, 19 and 20-22. Although Dwight elected to have his parents monitor his March visits "as a precaution" against Nichola's sexual abuse allegations, which Nichola asserted for the first time on March 16, Dwight's March visits nonetheless were not court-ordered to be supervised.
Regarding the statement that R.R.1 was "evasive," the affidavit stated that, when Washington "attempted to ask [R.R.1] specific questions about the sleeping arrangements at [Dwight's] home," R.R.1 "evaded the question several times." Plaintiffs have adduced no evidence that this statement was false, and the record indicates it was true. On March 31, Washington met with Nichola, L.S., and the girls. Ostensibly, during that meeting, R.R.1 evaded Washington's questions about the sleeping arrangements at Dwight's house.
Plaintiffs next claim the affidavit suppressed 15 items of "known exculpatory evidence," including: (1) R.R.1 said she slept alone at the paternal grandparents' home; (2) Christy B. instructed R.R.1 to draw a picture of Dwight and herself in bed, and prior to the instruction R.R.1 drew Dwight and her in separate beds; (3) Nichola did not (initially) claim Dwight sexually abused or touched R.R.1; (4) when R.R.1 saw Christy B. on March 20, 2009, R.R.1 had never been to the paternal grandparents' home and had never seen the bedrooms in the home; (5) identical abuse allegations had been presented to the family court; (6) Dwight lived with his parents, and his parents supervised all of his visits; (7) Washington had not interviewed Dwight; (8) Washington had not interviewed the paternal grandparents; (9) R.R.1's behavior, as described in the referrals and affidavit, was "within the normal realm of developmental stage for pre-school age child"; (10) R.R.1 denied that Dwight hurt her; (11) R.R.1 has fun at Dwight's house; (12) Nichola and Dwight were in the middle of a contentious custody dispute; (13) the sexual abuse allegations were first raised by Nichola in response to the court's March 16, 2009, ruling allowing Dwight unsupervised visitation; (14) "[n]o credibility determination" was made (by the family court) concerning Nichola's sexual abuse claims; and (15) Washington found R.R.1's denial of sexual abuse to be "rare and atypical" because an abused child will "usually say something about it."
The omission of these 15 items of exculpatory evidence did not make the affidavit materially false or misleading, or lacking in probable cause, in light of the contents of the affidavit as a whole. The affidavit disclosed that Dwight and Nichola were "in the middle of a divorce with an open Family Law Case." The affidavit also explained that, on March 22 and 24, CFS received two referrals alleging Dwight had sexually abused R.R.1, and accurately summarized the contents of those referrals.
More specifically, the affidavit explained that R.R.1 tried to "put a pen in her potty" after "an unsupervised visit" with Dwight, and when questioned about this R.R.1 said she was trying to "make her `potty bigger and she had to make it talk.'" At the same time, R.R.1 tried to touch Nichola's private areas. The affidavit also summarized what R.R.1 told Christy B. about Dwight's "long potty" including that Dwight "left germs" and that R.R.1 drew a picture of Dwight naked with his "long potty." The affidavit also described the pictures R.R.1 drew about the sleeping arrangements at Dwight's house. The affidavit also disclosed that R.R.1 "did not disclose any sexual touching by her father or anyone else," when interviewed by Washington. The affidavit also stated that the girls were to have an unsupervised overnight visit with Dwight beginning at 6:00 p.m. on April 3. The affidavit thus showed probable cause to detain the girls from Dwight's custody, and was not materially misleading.
Plaintiffs argue that if the 15 items of exculpatory evidence had been included in the affidavit, then the affidavit would have been insufficient to show probable cause to detain the girls. (See Franks v. Delaware, supra, 438 U.S. at pp. 171-172.) We disagree. None of the 15 items of exculpatory evidence, if included in the affidavit, would have undermined the affidavit's probable cause showing.
Plaintiffs claim that Lang-Townsend, who signed the dependency petition and detention report "for" Washington, made "unqualified" and materially false statements and omissions in these documents. (Pen. Code, §§ 118, 125.) Plaintiffs claim "[w]hen the false statements are removed, there are no remaining factual statements to support the allegations against Dwight" and the omitted material "reinforce[d] the baselessness of the allegations."
This claim is curious given that the allegations of the petition were dismissed at the July 7 further jurisdictional/dispositional hearing, after CFS had completed its investigation and determined the sexual abuse allegations were "unfounded." To the extent plaintiffs argue that materially false or misleading statements in the petition and detention report resulted in the juvenile court's finding, at the April 8 detention hearing, that there was probable cause to detain the girls, we disagree.
The alleged false statements in the petition consist of the allegations that Dwight (1) sexually abused R.R.1, (2) had "a history of domestic violence which pos[ed] a risk of physical and emotional harm to R.R.1," and (3) had "an extensive history of drug abuse which limit[ed] his ability to provide adequate care and supervision to R.R.1 and R.R.2." At the time of the April 8 detention hearing, these allegations were not lacking in evidentiary support. Indeed, the detention report explained the evidence supporting the sexual abuse, domestic violence, and substance abuse allegations against Dwight.
The alleged "omitted material," or exculpatory evidence not included in the petition or the detention report, includes the following: (1) after her investigation, Washington determined that the "sexual abuse" and "emotional abuse" allegations were "inconclusive"; (2) there was no evidence that the girls had suffered any abuse; (3) Washington questioned the validity of the sexual abuse allegation; (4) Nichola never said Dwight sexually abused or touched R.R.1; (5) Nichola and Dwight were in the middle of a highly "contested and contentious" family law custody dispute over the girls; (6) "[i]dentical and similar" abuse allegations were previously presented to the family court; (7) Dwight successfully completed a drug court pilot program, had been drug free since before October 2008, and tested clean in 55 consecutive drug tests; (8) R.R.1 denied that Dwight touched her inappropriately or hurt her; (9) R.R.1 has fun at Dwight's house; (10) the girls did not fear Dwight; (11) there were no police reports documenting any domestic violence between Dwight and Nichola; (12) Dwight lived with his parents; (13) Dwight's parents monitored his visits; and (14) an extensive video/audio recording system had recorded all the visits, including the March 20-22 visit.
The detention report did, in fact, state that R.R.1 denied that anyone "touches her inappropriately." The other omitted material would not have undermined the juvenile court's finding that there was probable cause to detain the girls on April 8. The detention report outlined the allegations of the March 22 and 24 referrals. These referrals showed there was probable cause to detain the girls, even though the sexual abuse allegations turned out to be "unfounded" following further investigation.
Plaintiffs also claim Flowers made materially false statements and omitted known exculpatory evidence in her nonappearance review packet, filed on October 26, 2009, which Lang-Townsend reviewed and approved.
The contents of the review packet are described in detail in section II.A., ante and show Flowers had probable cause to detain the girls, without a warrant, on October 15. (Arce v. Childrens Hospital Los Angeles (2012) 211 Cal.App.4th 1455, 1473-1474 [warrantless seizure of child from parent requires reasonable cause to believe child is likely to experience serious bodily harm in the time required to obtain a warrant]; Welf. & Inst. Code, § 306, subd. (a)(2) [social worker authorized to take child into temporary custody, without a warrant, if the child is in immediate danger of sexual abuse].) The review packet stated that, during an October 14 therapy session, R.R.1 told Christy B. that Dwight "walked in naked" on R.R.1 during a recent visit, and that R.R.1 did not "get recorded" at Dwight's house with her clothes on. The review packet also stated, and Dwight did not dispute, that he had recently asked R.R.1 about "lying down naked" with her, despite the juvenile court's admonition not to discuss such matters with the girls.
The review packet also showed there were exigent circumstances to detain the girls without a warrant. The girls began their weekend visit with Dwight on Thursday, October 15. Flowers called Dwight on October 15, after the girls had begun their weekend visit with him, and Dwight and the paternal grandfather brought the girls into CFS offices, where R.R.1 told Flowers the same things she told Christy B. the day before. Thus, the girls were already in Dwight's custody by the time Flowers was able to investigate R.R.1's October 14 statement to Christy B., and by the time Flowers could have obtained a warrant. (Wallis ex rel. Wallis v. Spencer, supra, 202 F.3d at p. 1138 ["[officials] cannot seize children suspected of being abused or neglected unless reasonable avenues of investigation are first pursued. . . ."]; Arce v. Childrens Hospital Los Angeles, supra, 211 Cal.App.4th at pp. 1476-1477.) Nichola further explained in the review packet that the paternal grandparents and a paternal uncle could no longer be trusted to supervise the visits, because neither they nor Dwight sought medical attention for R.R.1 after she suffered a bump on her head during a weekend visit on September 20, and none of them reported R.R.1's recent statements or head injury to CFS. On this record, there was no time for Flowers to obtain a warrant to seize the girls.
Plaintiffs argue the review packet falsely reported that Dwight walked into R.R.1's room naked, misrepresented what Dwight's therapist, Dr. Selim, told Flowers on October 21 (that Dwight discussed "lying down naked" with R.R.1), and suppressed exculpatory evidence, including that Nichola told R.R.1 that Dwight sleeps naked, that video recordings showed the incident did not occur, that Nichola was "perceived" as a person who "keeps making false allegations," and that Dwight offered to take a lie detector test to prove his innocence. None of this evidence, had it been in the review packet, would have undermined the probable cause or exigency showings made in the review packet. On this record, no reasonable juror could conclude Flowers lacked probable cause or exigent circumstances to detain the girls without a warrant, or that Flowers made false statements or suppressed material exculpatory evidence in her review packet.
In their fourth cause of action, plaintiffs alleged the County had several unlawful customs, practices, and policies, including a policy of allowing or training CFS social workers to engage in judicial deception in juvenile court proceedings and to detain children without warrants or probable cause. The complaint alleged these policies were the "moving force" behind the social worker defendants' violations of plaintiffs' federal civil rights to be free of judicial deception, unlawful seizure, and to familial association.
Under the Monell doctrine, a municipality can be sued under title 42 United States Code section 1983 for "constitutional deprivations visited pursuant to a governmental `custom'" where the custom was the "moving force" behind the injury alleged. (Monell, supra, 436 U.S. at pp. 690-691; Chew v. Gates (9th Cir. 1994) 27 F.3d 1432, 1444.) But a municipality cannot be held liable under title 42 United States Code section 1983 "where no injury or constitutional violation has occurred." (Jackson v. City of Bremerton (9th Cir. 2001) 268 F.3d 646, 653; Tolsma v. King County (9th Cir. 2012) 489 Fed. Appx. 178, 179.) For the reasons discussed in section IV.A. ante, the social worker defendants are entitled to summary judgment on plaintiffs' title 42 United States Code section 1983 claims against them. Thus, no injury or constitutional violation has occurred, and the County cannot be held liable on plaintiffs' Monell claim.
The trial court ruled that the girls' state law claims against the County and Washington, Lang-Townsend, and Flowers for false imprisonment, IIED, and child abduction (the first, second, and fifth causes of action) were barred because Dwight's government claim, filed in November 2009, identified only Dwight as the claimant and did not identify the girls as claimants. The girls acknowledge that they were required to present a government claim as a condition to maintaining their state law claims (Gov. Code, §§ 911.2, 945.4),
Before a plaintiff may sue a public entity for personal injuries, the plaintiff must timely present a written claim for his or her damages in tort to the public entity. (§§ 911.2, 945.4; State of California v. Superior Court (2004) 32 Cal.4th 1234, 1239.) The claim must be presented no later than six months after the personal injury cause of action accrues. (§ 911.2.) The timely presentation of the claim is not merely a procedural requirement; it is an integral part of the plaintiff's cause of action and a condition precedent to the plaintiff's maintenance of the cause of action. (State of California v. Superior Court, supra, at p. 1240; Williams v. Horvath (1976) 16 Cal.3d 834, 842.)
The primary purpose of the claims presentation requirement is "`to provide the public entity sufficient information to enable it to adequately investigate claims and to settle them, if appropriate, without the expense of litigation.'" (Stockett v. Association of Cal. Water Agencies Joint Powers Ins. Authority (2004) 34 Cal.4th 441, 446; Elias v. San Bernardino County Flood Control Dist. (1977) 68 Cal.App.3d 70, 74.) Thus, "courts employ a test of substantial rather than strict compliance in evaluating whether a plaintiff has met the demands of the claims act. [Citations.] If the claim satisfies the purpose of the act without prejudice to the government, substantial compliance will be found. [Citations.]" (Elias v. San Bernardino County Flood Control Dist., supra, at p. 74.)
Plaintiffs argue Dwight's claim was sufficiently detailed to notify the County of both his and the girls' personal injury claims. We disagree.
As plaintiffs point out, a government claim may be presented and signed either by the claimant or by a person acting on behalf of the claimant. (§§ 910, 910.2.) But Dwight's claim identified only himself as the "claimant" and did not assert any claims on behalf of the girls. The claim states that Washington, Lang-Townsend, and Flowers "conspired to violate the Father's rights to his children and interfere in his relationship with his children." (Italics added.) The claim similarly states that "claimant" suffered damages for emotional distress, anxiety, "general damage to claimant's psyche," loss of reputation, and other damages. But the claim nowhere indicates the girls were claiming any damages.
To be sure, although the claim consistently uses the singular term "claimant," in its final paragraph it refers to "claimants." It states: "The amount of damages claimed by claimants, and each of them, are in excess of the limited jurisdiction courts of the State of California. . . ." (Italics added.) This language, however, was insufficient to apprise the County that the girls were asserting any claims or seeking any damages. Moreover, the claim expressly identifies only Dwight as the "claimant" and nowhere indicates that the girls are also claimants.
Lacy v. City of Monrovia (1974) 44 Cal.App.3d 152, 156 is inapposite. There, a government claim explained that police officers broke into the claimant's home and terrorized the claimant and his family. (Id. at pp. 153-154.) The claim referred to the claimant, a husband and father, and the "`members of [his] family'" as having suffered humiliation and embarrassment based on their unlawful detention and deprivation of liberty. The claim stated: "`We were all caused embarrassment and humiliation and were detained and deprived of our liberty. . . .'" (Id. at p. 154, italics added.) In addition, the claim separately stated the damages the claimant was claiming for himself and his wife, apart from the damages claimed for the couple's children. (Id. at pp. 155-156.) Thus, Lacy held the claimant had presented the claim on behalf of himself, his wife, and children. (Id. at pp. 155-157.) Based on the claim, the city "not only had notice of the occurrence giving rise to the claim but also had the names of all persons seeking damages and the amount of damages claimed." (Id. at p. 157.) Unlike the omnibus family claim in Lacy, Dwight's claim did not notify the County that Dwight was asserting claims on behalf of himself and the girls or that the girls were seeking damages based on the same conduct underlying his claims. Thus, Dwight's claim did not substantially comply with the purpose of the claims presentation statutes.
Dwight's claim is more like the son's survivor claims that were barred in Nelson v. County of Los Angeles (2003) 113 Cal.App.4th 783, 796-797. In Nelson, the decedent's mother filed a government tort claim identifying only herself as the claimant and alleging damages for the wrongful death of her son. (Id. at p. 796 & fn. 9.) The mother's claim did not suggest it was made on behalf of the son, or in any representative capacity, and only sought damages suffered by the mother. (Id. at pp. 796-797.) Nelson observed that "[w]here two or more persons suffer separate and distinct injuries from the same act or omission, each person must submit a claim, and one cannot rely on a claim presented by another. [Citations.]" (Id. at p. 796.) Similarly here, the girls cannot rely on Dwight's government claim to satisfy their claim presentation requirement.
We also reject plaintiffs' contention that the County waived its defense that Dwight's government claim was insufficient to cover the girls' claims. Plaintiffs argue the County waived this defense because it did not notify Dwight, within 20 days of the date he presented his claim, that his claim was insufficient to cover any claims on behalf of the girls. (§§ 910.8, 911.) Section 910.8 requires the public entity to notify the claimant, within 20 days, that the claim does not substantially comply with the content, signature, and form requirements of sections 910, 910.2, and 910.4. Dwight's claim substantially complied with these requirements. Among other things, Dwight was required to include, and did include, the name and post office address of the claimant. (§ 910, subd. (b).)
As Nelson explained, "[a] public entity's duty to notify a claimant that the claim form is `defective' necessarily presumes the defect is disclosed on the face of the form. (Gov. Code, § 910.8.)" (Nelson v. County of Los Angeles, supra, 113 Cal.App.4th at pp. 797-798.) Like the mother's claim in Nelson, Dwight's claim was not defective. (Id. at p. 797.) Rather, it was made only on behalf of Dwight, not the girls, but this was not a "defect" that appeared on the face of the claim. Thus, the County was not required to notify Dwight or the girls that Dwight's claim did not cover the girls' claims, under penalty of waiving the County's defense that the girls' claims were barred due to their failure to present a government claim.
Having concluded that the girls' state law claims are barred due to their failure to present a government claim (§§ 911.2, 945.4), we must determine whether Dwight's identical state law claims were properly adjudicated in favor of the social worker defendants and the County. We conclude that all defendants are statutorily immune from the state law claims.
In support of their state law claims, plaintiffs alleged the social worker defendants acted with malice in committing perjury, fabricating evidence, and suppressing known exculpatory evidence in the juvenile court proceedings. (§ 820.21.) Plaintiffs alleged these malicious acts and omissions resulted in the girls' initial detention from Dwight in March 2009, the filing of the petition alleging Dwight was sexually abusing R.R.1, and the warrantless removal of the girls from Dwight in October 2009. In sum, the social worker defendants' alleged malicious fabrication and suppression of material evidence is the sole conduct underlying plaintiffs' state law claims for false imprisonment, IIED, and child abduction.
In summarily adjudicating the state law claims in favor of defendants, the trial court determined that the social worker defendants were entitled to immunity from the state law claims pursuant to section 820.2. The trial court also ruled that the "malice" exception to public employee immunity (§ 820.21) did not apply because there was no evidence that any of the social worker defendants acted with malice in presenting or failing to present any evidence in the juvenile court. Lastly, the trial court ruled that the County was immune from the state law claims for the same reasons the social worker defendants were immune. (§ 815.2, subd. (b) ["a public entity is not liable for an injury resulting from an act or omission of an employee of the public entity where the employee is immune from liability."].)
Dwight argues, as he did in the trial court, that the record shows the social worker defendants acted with malice in committing perjury, fabricating evidence, and suppressing known exculpatory evidence in the juvenile court proceedings. (§ 820.21.) Thus, he claims the social worker defendants are not immune from the state law claims, and the County is vicariously liable for the social worker defendants' tortious conduct. (§ 815.2, subd. (b).) We disagree.
Section 820.2 provides that: "Except as otherwise provided by statute, a public 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 is abused." As its terms indicate, section 820.2 immunizes social workers and other public employees from liability for injuries resulting from their discretionary decisions, even if they abuse their discretion. (Christina C. v. County of Orange (2013) 220 Cal.App.4th 1371, 1381.) Another immunity provision, section 821.6, provides: "A public employee is not liable for injury caused by his [or her] instituting or prosecuting any judicial or administrative proceeding within the scope of his [or her] employment, even if he acts maliciously and without probable cause."
"Several appellate courts . . . have held that a social worker's decisions relating to . . . the investigation of child abuse, removal of a minor, and instigation of dependency proceedings, are discretionary decisions subject to immunity under section 820.2, and/or prosecutorial or quasi-prosecutorial decisions subject to immunity under section 821.6." (Jacqueline T. v. Alameda County Child Protective Services (2007) 155 Cal.App.4th 456, 466-468, citing, e.g., Alicia T. v. County of Los Angeles (1990) 222 Cal.App.3d 869, 881-883; Newton v. County of Napa (1990) 217 Cal.App.3d 1551, 1559-1562 & fn. 5; Jenkins v. County of Orange (1989) 212 Cal.App.3d 278, 282-284, 287.) As our Supreme Court more recently observed: "Courts of Appeal have held that preliminary determinations of the potential risk to the child and the necessity of intervention made by employees of child protective agencies based on their investigative findings . . . are subjective, `involve a formidable amount of discretion' and are entitled to immunity. [Citations.]" (B.H. v. County of San Bernardino (2015) 62 Cal.4th 168, 195.) Indeed, section 820.2 immunity "applies even to `lousy' decisions in which the [social] worker abuses his or her discretion, including decisions based on `woefully inadequate information.'" (Christina C. v. County of Orange, supra, 220 Cal.App.4th at p. 1381, quoting Ortega v. Sacramento County Dept. of Health & Human Services (2008) 161 Cal.App.4th 713, 725, 728, 732; accord, Gabrielle A. v. County of Orange (2017) 10 Cal.App.5th 1268, 1285.)
As Dwight points out, however, section 820.2 immunity does not extend to social workers who "commit perjury, fabricate evidence, fail to disclose known exculpatory evidence, or obtain testimony by duress," if these acts or omissions are committed with malice. (§ 820.21, subd. (a); Parkes v. County of San Diego (2004) 345 F.Supp.2d 1071, 1082.) Section 820.21 provides that: "Notwithstanding any other provision of the law, the civil immunity of juvenile court social workers, child protection workers, and other public employees authorized to initiate or conduct investigations or proceedings [in the juvenile courts] shall not extend to any of the following, if committed with malice: [¶] (1) Perjury. [¶] (2) Fabrication of evidence. [¶] (3) Failure to disclose known exculpatory evidence. [¶] (4) Obtaining testimony by duress, . . . fraud, . . . or undue influence. . . ." (§ 820.21. subd. (a), italics added.) "`[M]alice' means conduct that is intended by the person . . . to cause injury to the plaintiff or despicable conduct that is carried on . . . with a willful and conscious disregard of the rights or safety of others." (§ 820.21, subd. (b).)
Although section 821.6 immunity for prosecutorial or quasi-prosecutorial acts applies "even if [the public employee] acts maliciously and without probable cause" (§ 821.6; see Jacqueline T. v. Alameda County Child Protective Services, supra, 155 Cal.App.4th at p. 465), we question whether section 821.6 immunity is available when the acts in question are malicious acts of perjury, fabrication of evidence, failure to disclose known exculpatory evidence, or other malicious acts described in section 820.21. We will assume, for purposes of argument, that section 821.6 immunity does not apply in such instances.
In any event, as the trial court found, there is no evidence any of the social worker defendants committed perjury, fabricated evidence, or suppressed known exculpatory evidence in any of the juvenile court proceedings—or the social worker defendants acted maliciously. The social worker defendants made an initial prima facie showing that they were immune from the state law claims because they did not act with malice in presenting or excluding any evidence concerning Dwight's alleged sexual abuse of R.R.1. This was sufficient to shift the burden to plaintiffs to present evidence sufficient to raise a triable issue of fact that the social worker defendants engaged in any such acts with malice. But plaintiffs presented no such evidence.
The judgment is affirmed. Defendants shall recover their costs on appeal.
