O'Neel v. City of Folsom

[7] 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- [11] 12 FAUN O’NEEL, individually and as No. 2:21-cv-02403 WBS DB Guardian Ad Litem for her 13 children B.T., A.O., D.O., and A.T., 14 MEMORANDUM AND ORDER RE: Plaintiffs, COUNTY OF SACRAMENTO, SASHA 15 SMITH, AND KERYN STARKES’ v. MOTION FOR SUMMARY JUDGMENT [16] CITY OF FOLSOM, a public entity; 17 SPENSER HEICHLINGER, an individual; MELANIE CATANIO, an 18 individual; LOU WRIGHT, an individual; DOE CITY OF FOLSOM 19 DEFENDANTS, individuals; KERYN STARKS, an individual; SASHA 20 SMITH, an individual; COUNTY OF SACRAMENTO, a public entity; DOE 21 DCFAS DEFENDANTS, individuals; and DOES 1 through 10, 22 inclusive, 23 Defendants. [24] 25 ----oo0oo---- 26 Plaintiff Faun O’Neel, individually and as guardian ad 27 litem for her children B.T., A.O., D.O., and A.T, brought this § 28 1983 action alleging that defendants’ removal of her four 1 children violated, inter alia, their Fourteenth Amendment right 2 to familial association. (Second Am. Compl. (“SAC”) (Docket No. 3 49).) Donnie Cox was subsequently appointed guardian ad litem 4 for the four children on February 23, 2022. (Docket No. 9.) 5 Defendants County of Sacramento, Sasha Smith, and Keryn Starkes 6 now move for summary judgment. (Docket No. 80.) 7 I. Factual and Procedural Background 8 Plaintiff Faun O’Neel is the mother of child plaintiffs 9 A.T., D.O., A.O., and B.T. (See Docket No. 93 at 56.) Danny 10 O’Neel, not a party to this matter, is Faun O’Neel’s husband and 11 the children’s stepfather. (See id.) 12 On December 20, 2020, D.O. left out food that the 13 family’s dog got into and made a mess in the kitchen, and Faun 14 O’Neel disciplined D.O. (See Sealed Detention Report at 3-4.) 15 Following this incident, D.O. told his sister B.T. that his 16 mother choked him with both hands and carried him by the neck. 17 (See Defs.’ Statement of Undisputed Facts (“SUF”) (Docket No. 8018 1) ¶ 5.) B.T. then called 911 concerning D.O.’s choking 19 allegation. (Id. ¶ 6.)1 20 Folsom Police Department officers responded to the 911 21 call and interviewed the children. (See Docket No. 93 at 48-51.) 22 The officers left without removing the children from the home. 23 (See Pls.’ Statement of Material Facts (“SMF”) ¶ 11.) Two days 24 later, on December 22, 2020, Officer Melanie Catanio removed the [26] 1 Faun O’Neel maintained that she only grabbed D.O. by the back of the neck to get him to comply with her order to clean 27 up the food and did not choke him or pick him up by the neck. (See Docket No. 93 at 16.) D.O. later recanted the choking 28 allegation. (See SUF ¶ 80.) 1 four children from the home without a warrant, and thereafter 2 interviewed the two older children, B.T. and A.O., at the Folsom 3 Police Department. (SUF ¶ 11.) During her interview, A.O. made 4 additional allegations that the parents physically punished both 5 D.O. and herself, including smacking in the face and hitting with 6 a belt. (Id. ¶¶ 14-16.) Following the interviews, the children 7 were placed in the custody of the County of Sacramento Child 8 Protective Services Department (“CPS”). (See id. ¶ 18.) 9 Keryn Starkes and Sasha Smith are social workers 10 employed by CPS who were assigned to the O’Neel case. (See id. 11 ¶¶ 43-50.) Sasha Smith was Keryn Starkes’ supervisor. (See id. 12 ¶ 20; SMF ¶ 36.) 13 Pursuant to a safety plan agreed upon by Starkes, the 14 O’Neel parents, and maternal grandmother Fara Canutt on December 15 24, 2020, the children were placed into the custody of Canutt at 16 the family home, while the parents were to live in a different 17 location and were permitted to have supervised visitation. (See 18 SUF ¶¶ 21-23.) The safety plan also required that the parents 19 refrain from attempting to influence what the children said to 20 law enforcement. (See id. ¶ 23.) 21 On January 8, 2021, Starkes filed petitions to have the 22 children declared dependents of the Juvenile Court pursuant to 23 California Welfare & Institutions Code § 300. (See id. ¶ 47.) 24 That same day, Starkes also prepared and submitted a warrant 25 application2 for the removal of all four children pending a [26] 2 While separate applications were submitted for each 27 child, the substantive content of the applications was identical. (See SMF ¶ 26.) The court will therefore use the singular 28 “application.” 1 hearing on the § 300 petitions, pursuant to Welfare & 2 Institutions Code § 340(b)(2). (See id. ¶ 45.) The warrant 3 application was granted by a judge the same day. (Id.) The 4 children were then placed into CPS custody. (See Sealed 5 Detention Report at 2.) 6 A detention hearing was held on January 14, 2021. At 7 the hearing, a different judge determined that CPS had made a 8 prima facie case that the children satisfied the criteria of § 9 300 due to a risk of physical abuse. (SUF ¶¶ 70-72.) At a 10 dispositional hearing on February 1, 2021, that judge sustained 11 the § 300 petitions by a preponderance of the evidence and 12 adjudged the children as dependent children of the Juvenile 13 Court. (Id. ¶ 74.) The court ordered the mother and children to 14 reside in the same home as the parental grandparents until 15 further order of the Court. (Id.) The children’s dependency 16 status was terminated on July 22, 2021. (Id. ¶ 75.) 17 II. Legal Standard 18 Summary judgment is proper “if the movant shows that 19 there is no genuine dispute as to any material fact and the 20 movant is entitled to judgment as a matter of law.” Fed. R. Civ. 21 P. 56 (a). A party may move for summary judgment either for one 22 or more claims or defenses, or for portions thereof. Id. 23 The moving party typically bears the initial burden of 24 establishing the absence of a genuine issue of material fact and 25 may satisfy this burden by presenting evidence that negates an 26 essential element of the non-moving party’s case. See Celotex 27 Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). However, summary 28 judgment must be entered “against a [non-moving] party who fails 1 to make a showing sufficient to establish the existence of an 2 element essential to that party’s case, and on which that party 3 will bear the burden of proof at trial.” See id. Any inferences 4 drawn from the underlying facts must be viewed in the light most 5 favorable to the non-moving party. See Matsushita Elec. Indus. 6 Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). 7 III. Discussion 8 As relevant here, plaintiffs’ third claim, brought 9 against defendants Starkes and Smith, alleges judicial deception 10 in the warrant application in violation of plaintiffs’ 11 constitutional right to familial association. The seventh claim 12 alleges that Starkes and Smith are liable for false imprisonment 13 based on false representations made in the warrant application. 14 The sixth claim alleges that the County of Sacramento is liable 15 pursuant to Monell v. Department of Social Services of City of 16 New York, 436 U.S. 658 (1978).3 17 A. Judicial Deception 18 “The interest of parents in the care, custody, and 19 control of their children is perhaps the oldest of the 20 fundamental liberty interests recognized by the Supreme Court.” [21] 22 3 The first and second claims were brought against the other defendants (Catanio, Wright, and City of Folsom), who have 23 since settled. (See Docket No. 96.) Plaintiffs’ opposition brief indicates that they have 24 “elect[ed]” not to pursue the fourth and fifth claims, which allege judicial deception in other documents filed with the [25] Juvenile Court. (See Opp’n (Docket No. 88) at 7.) Plaintiffs further represent that they “will submit a dismissal of the [26] Fourth and Fifth Claims.” (Id.) Plaintiffs have not yet filed a 27 pleading voluntarily dismissing these claims. However, based on plaintiffs’ clear intention to abandon them, the court will 28 dismiss the fourth and fifth claims. 1 David v. Kaulukukui, 38 F.4th 792, 799 (9th Cir. 2022) (cleaned 2 up). “[A]s part of the right to familial association, parents 3 and children have a ‘right to be free from judicial deception’ in 4 child custody proceedings and removal orders.” Id. at 800 . 5 “To support a § 1983 claim of judicial deception, a 6 plaintiff must show that the defendant deliberately or recklessly 7 made false statements or omissions that were material to the 8 finding of probable cause.” Greene v. Camreta, 588 F.3d 1011 , 9 1034–35 (9th Cir. 2009), vacated in part on other grounds, 661 10 F.3d 1201 (9th Cir. 2011). 11 Under California law, “a warrant to remove a child 12 prior to a hearing cannot issue absent a showing of probable 13 cause to believe that ‘[t]here is a substantial danger to the 14 safety or to the physical or emotional health of the child’ and 15 ‘[t]here are no reasonable means to protect the child's safety or 16 physical health without removal.’” Scanlon v. County of Los 17 Angeles, 92 F.4th 781, 805 (9th Cir. 2024) (quoting Cal. Welf. & 18 Inst. Code § 340(b)(2)-(3)). 19 In the context of a judicial deception claim, “[a] 20 misrepresentation or omission is ‘material’ if a court ‘would 21 have declined to issue the order had [the defendant] been 22 truthful.’” David, 38 F.4th at 801 (quoting Greene, 588 F.3d at 23 1035) (alteration in original). “Whether a false statement was 24 ‘material’ to the finding of probable cause is a question of law 25 for the reviewing court.” Greene, 588 F.3d at 1035 ; see also 26 Chism v. Washington State, 661 F.3d 380, 389 (9th Cir. 2011) 27 (materiality is a “purely legal question”). But see Scanlon, 92 28 F.4th at 802 (treating materiality as issue to be determined by 1 “reasonable trier of fact,” but not addressing whether 2 materiality is a factual or legal question). 3 1. Smith 4 It is undisputed that Starkes was responsible for the 5 preparation of the warrant application. (See SUF ¶ 45.) Smith, 6 Starkes’ supervisor, did not sign the warrant application. (See 7 Docket No. 93 at 74.) As far as the court can discern, Smith’s 8 only involvement with the warrant application was her review of 9 it in her capacity as Starkes’ supervisor. (See Keryn Starkes 10 Dep. at 61:21-22, 135:20-136:14; Sasha Smith Dep. at 74:11-75:7.) 11 It appears that Smith did not review the underlying evidence or 12 documentation. (See SUF ¶ 56; Sasha Smith Dep. at 78:2-17.) 13 The parties have not identified any evidence in the 14 record that suggests Smith had reason to doubt the accuracy of 15 the representations made by Starkes’ warrant application. 16 Moreover, plaintiffs have not identified, and the court is 17 unaware of, any authority holding that a supervisor must review 18 the underlying evidence or documentation for a warrant 19 application prepared by her subordinate. “Omissions or 20 misstatements resulting from negligence or good faith mistakes 21 will not invalidate an affidavit which on its face establishes 22 probable cause,” and “a claim of judicial deception [may not] be 23 based on an officer’s erroneous assumptions about the evidence he 24 has received.” Ewing, 588 F.3d at 1224 ; see also Motley v. 25 Parks, 432 F.3d 1072, 1081 (9th Cir. 2005), overruled on other 26 grounds by United States v. King, 687 F.3d 1189 (9th Cir. 2012) 27 (“law enforcement officers are generally entitled to rely on 28 information obtained from fellow law enforcement officers”). 1 Smith’s reliance on Starkes’ representations thus cannot form the 2 basis for a judicial deception claim. See Ewing, 588 F.3d at 3 1224. Accordingly, the court will grant summary judgment on the 4 third claim in favor of defendant Smith. 5 2. Starkes 6 As stated above, defendant Starkes drafted the warrant 7 application. Plaintiffs advance several theories concerning 8 Starkes’ alleged judicial deception in the warrant application. 9 a. Failure to Review SAFE Interviews 10 It is undisputed that Starkes relied on the 11 representations of Officer Catanio and Dominique Smith concerning 12 the content of the SAFE interviews, rather than reviewing the 13 SAFE interview recordings or transcripts. Plaintiffs argue that 14 this constitutes reckless disregard for the truth. They take 15 issue with two representations or omissions that Starkes relied 16 upon: first, Catanio and Dominique Smith’s failure to inform her 17 of the fact that D.O. recanted the choking allegation during the 18 interview; and second, their representations that the children 19 had been coached prior to their interviews in violation of the 20 safety plan. 21 Catanio, who observed the interviews (see SUF ¶ 28), 22 sent an email received by Dominique Smith and Starkes (see id. ¶¶ 23 40, 42) conveying her conclusion that the children had 24 “clear[ly]” been coached on “what to say, and . . . what not to 25 say,” in violation of the safety plan, such that the “integrity 26 of the [SAFE] interviews was completely compromised” (Docket No. 27 93 at 66). One of Dominique Smith’s Case Management System 28 (“CMS”) entries also indicates generally that the safety plan was 1 not followed. (See Dominique Smith Dep. at 71:18-24.) Dominique 2 Smith’s CMS entries do not indicate that D.O. recanted the 3 choking allegation during his SAFE interview, nor does Catanio’s 4 email concerning the interviews. (See Dominique Smith Dep. at 5 68:23-70:4; Docket No. 93 at 66.) Starkes relied upon these 6 representations in drafting the warrant application. (See Docket 7 No. 93 at 73.) 8 It is true that Starkes knew about the SAFE interviews 9 prior to filing the warrant application and failed to review the 10 recordings or transcripts. (See SUF ¶ 26; SMF ¶ 20.) However, 11 the interviews were not requested by Starkes in the first place 12 (see SUF ¶¶ 24-26), and there is no indication that she felt 13 review of the interviews necessary to acquire adequate 14 information from the children. More importantly, there is 15 nothing in the record indicating that Starkes had reason to doubt 16 the accuracy of Officer Catanio and Dominique Smith’s 17 representations to her concerning the SAFE interviews. See 18 Motley, 432 F.3d at 1081 (“law enforcement officers are generally 19 entitled to rely on information obtained from fellow law 20 enforcement officers”); Kastis v. Alvarado, No. 1:18-cv-01325 DAD 21 BAM, 2019 WL 3037912 , at *10 (E.D. Cal. July 11, 2019) (“An 22 assertion is made with reckless disregard when ‘viewing all the 23 evidence, the affiant must have entertained serious doubts as to 24 the truth of his statements or had obvious reasons to doubt the 25 accuracy of the information he reported.’”) (quoting Wilson v. 26 Russo, 212 F.3d 781, 788 (3d Cir. 2000)). Her failure to review 27 additional information concerning the SAFE interviews thus 28 constitutes, at most, mere “negligence or good faith mistakes” 1 that do not sustain a judicial deception claim. See Ewing, 588 2 F.3d at 1224. 3 b. Failure to Investigate Further 4 Plaintiffs also argue that D.O.’s representation that 5 his mother picked him up and carried him around by the neck was 6 so unbelievable that it should have prompted Starkes to further 7 investigate the incident. D.O.’s description certainly strains 8 credulity, especially given that there were no marks on his neck 9 following the incident and he was twelve years old at the time. 10 (See SMF ¶¶ 2-3, 7, 12; Docket No. 93 at 69.) Plaintiffs contend 11 that Starkes should have therefore conducted further 12 investigation -- for example by (1) reviewing the audio 13 recordings of the children’s interviews with Folsom Police, (2) 14 reviewing the photos taken of D.O. that showed no visible marks 15 or bruising on his neck (in addition to evidence already before 16 her that indicated there were no marks), or (3) further 17 questioning Faun O’Neel (in addition to the interview Starkes had 18 already conducted) -- and that her failure to do so constitutes 19 reckless disregard for the truth. 20 This argument is unavailing, particularly because the 21 warrant application did include Faun O’Neel’s alternative 22 description of the December 20, 2020 incident, according to which 23 she only “grabb[ed] [D.O.] by the back of the neck,” but did not 24 choke him or pick him up by the neck. (See Docket No. 93 at 71.) 25 Further, there is no indication that the specific avenues of 26 investigation identified by plaintiffs were so plainly necessary 27 that failure to pursue them constitutes reckless disregard for 28 the truth. Cf. Butler v. Elle, 281 F.3d 1014, 1025 (9th Cir. 1 2002) (where warrant was issued for failure to maintain vehicle 2 title, officer’s failure to search title database under 3 defendant’s legal name and business name, which were known to 4 officer, could support claim for judicial deception). 5 It is possible that the investigation methods 6 identified by plaintiffs may constitute “best practices.” (See, 7 e.g., Sasha Smith Dep. at 79:9-16 (indicating that reviewing 8 photos referenced in a police report prior to writing a warrant 9 application is a practice social workers “should” follow).) But 10 a failure to abide by best practices does not rise to the level 11 of judicial deception. As with Starkes’ failure to review the 12 SAFE interviews, her failure to investigate the case in the 13 particular manner plaintiffs dictate constitutes, at most, mere 14 negligence that cannot support a judicial deception claim. See 15 Ewing, 588 F.3d at 1224 . 16 Additionally, it is not clear that further avenues of 17 investigation concerning the choking incident would have yielded 18 information that, if included, would have been material. As 19 discussed in greater detail below, the choking incident was not 20 the only ground for the warrant. Even if the choking allegation 21 was excluded, the court cannot say as a matter of law that the 22 warrant would not have been granted. 23 c. Omissions from Warrant Application 24 Finally, plaintiffs point to Starkes’ omission of 25 several pieces of information that were known to her, including 26 that (1) the safety plan allegedly did not require that the 27 parents have only one hour of supervised virtual visitation every 28 other day, and therefore the parents were not in violation of the 1 visitation provision by having frequent in-person visitation (see 2 Decl. of Faun O’Neel (Docket No. 88-1 at 94-100) ¶ 27; Decl. of 3 Fara Canutt (Docket No. 88-1 at 90-92) ¶ 4); (2) D.O. told 4 Starkes he felt safe at home and wanted to remain with his mother 5 (SMF ¶ 12); (3) D.O. gave varying descriptions of the part of the 6 incident in which his mother pushed his face either “into” or 7 “towards” the food spilled on the ground (see SMF ¶ 34; Docket 8 No. 93 at 14); (4) D.O. had no physical marks or bruises (see SMF 9 ¶ 2); and (5) the police did not remove the children when they 10 first responded to the home and interviewed the children on 11 December 20, 2020, but rather came back to remove the children 12 two days later (see SMF ¶ 11; SUF ¶ 11). 13 Even if these pieces of information may tend to be 14 exculpatory, they are overshadowed by the specific allegations of 15 physical abuse against multiple children in the home, which are 16 far more salient to the finding of probable cause. According to 17 the warrant application, D.O. and A.O. “reported history of being 18 physically abused by the mother and the father, which included 19 being choked, spanked with a belt, and slapped in the face”; B.T. 20 “reported being concerned that her mother would hurt her siblings 21 again when she gets angry,” particularly D.O. and A.O., who “get 22 more severe punishments . . . including getting hit and pushed”; 23 and A.O. “stated that when her mother gets overly mad, she gets 24 smacked, pushed and spanked with a belt” and that “her last 25 spanking by her father was last September or October 2020” (mere 26 months before the December 2020 incident), which left her with 27 “marks and bruises on her legs and her arms.” (See Docket No. 93 28 at 70-72; SUF ¶ 52.) 1 Accordingly, the court concludes that the alleged 2 omissions were immaterial. Even if the facts pointed to by 3 plaintiffs had been included, the judge most likely would still 4 have granted the warrant based on these allegations, which were 5 not “made misleading by the omission” of the facts relied upon by 6 plaintiffs such that the warrant application “considered as a 7 whole, [was] materially misleading.” See Scanlon, 92 F.4th at 8 799. 9 This conclusion is bolstered by the outcome of the 10 detention hearing, where the plaintiffs were each represented by 11 counsel and a different judge concluded CPS had made a prima 12 facie case that the children met the criteria of Welfare & 13 Institutions Code § 300. The judge there had before him a fuller 14 factual and procedural record, along with D.O.’s statement that 15 he felt safe at home and wanted to remain at home, and CPS’s 16 representation that the only violation of the safety plan was the 17 family’s alleged coaching of the children prior to interviews. 18 (See SUF ¶¶ 58-69.) In ruling, the judge stated: “I find that 19 removal of all the children is appropriate, based on allegations 20 of physical abuse. One to [D.O.], but also a report of 21 allegations that there is physical abuse to [A.O.] that occurred 22 prior to this. The allegations seem to suggest this is not an 23 isolated incident that just happened to [D.O.], but this is 24 something that’s been ongoing in the family, at least to two 25 children.” (Id. ¶ 70.) 26 As plaintiffs point out, the legal standard applied at 27 the warrant application stage is different than the standard 28 under § 300. In particular, the warrant required that, in 1 addition to making a showing of abuse or neglect under § 300, 2 there were “no reasonable means to protect the child’s safety or 3 physical health without removal” pending hearing on the § 300 4 petitions. See Scanlon, 92 F.4th at 805 (quoting Cal. Welf. & 5 Inst. Code § 340(b)(2)-(3)). While the judge’s conclusion at the 6 detention hearing that CPS has made a prima facie showing under § 7 300 is not equivalent to a finding of probable cause, the outcome 8 of that hearing does make clear that the allegations of a history 9 of excessive corporal punishment against multiple children would 10 have been important at any stage of the case. 11 Based on the foregoing, the court concludes that there 12 is no genuine dispute of material fact tending to show that 13 Starkes committed judicial deception in the warrant application. 14 Accordingly, the court will grant summary judgment on the third 15 claim in favor of defendant Starkes. 16 B. Qualified Immunity 17 Even if any or all of the allegedly false statements in 18 the warrant application or the alleged omissions from that 19 application were found to constitute judicial deception, 20 defendants would still be entitled to qualified immunity on 21 plaintiffs’ Fourteenth Amendment claim unless plaintiffs could 22 establish that defendants acted in violation of clearly 23 established law, such that any reasonable officer in the 24 officers’ position would understand that their conduct violated 25 plaintiffs’ constitutional rights. See Pearson v. Callahan, 555 26 U.S. 223 , 232 (2009) (“Qualified immunity is applicable unless 27 the official’s conduct violated a clearly established 28 constitutional right.”); Saucier v. Katz, 533 U.S. 194 , 202 1 (2001) (“The relevant, dispositive inquiry in determining whether 2 a right is clearly established is whether it would be clear to a 3 reasonable officer that his conduct was unlawful in the situation 4 he confronted.”) 5 It may be clearly established that an officer may not 6 make statements in a juvenile dependency petition that he knew to 7 be false or would have known to be false if he had not recklessly 8 disregarded the truth. See Greene, 588 F.3d at 1035 ; David, 38 9 F.4th at 800 (stating that “the right to be free from judicial 10 deception in matters of child custody in beyond debate.”). 11 However, the Supreme Court has cautioned us not to define the law 12 at such a high level of generality in defining what is clearly 13 established. See City of Escondido, Cal. v. Emmonds, 586 U.S. 14 38, 42 (2019). In order for the making of such false statements 15 to constitute a Fourteenth Amendment violation the statements 16 must have been material. In other words, it is not enough that a 17 defendant may have made one or more false statements or omitted 18 one or more facts from a petition. The statement or omission may 19 support a judicial deception claim only if the allegedly deceived 20 court would have declined to issue the order had the statements 21 not been made or the omitted facts been included. See David, 38 22 F.4th at 801. 23 Accordingly, in determining qualified immunity the more 24 appropriate inquiry is whether the officer made false statements 25 which he knew to be materially false or would have known to be 26 materially false if he had not recklessly disregarded the truth. 27 And with regard to the alleged omissions the appropriate inquiry 28 is correspondingly whether the officer intentionally or with 1 reckless disregard for the truth omitted material facts. 2 In the context of a judicial deception claim, 3 materiality is a question which must be determined by the 4 reviewing court in each instance on a case-by-case basis. See 5 Chism, 661 F.3d at 389 . Here, this court has determined that 6 none of the alleged misrepresentations or omissions, considered 7 individually or collectively, were material because they did not 8 influence the Juvenile Court Judge in his decision. But suppose 9 this court had held otherwise and determined that one or more of 10 the alleged misrepresentations were made with knowledge they were 11 false and were material. Would that conclusion have been clear 12 to any officer in the position of Starkes? The court concludes 13 it would not, and that a reasonable officer in Starke’s position 14 could well have believed that the Juvenile Court Judge would 15 still have issued the detention order even if the allegedly false 16 statements were omitted and the omitted facts were included in 17 the petition. 18 It must not be forgotten that juvenile dependency 19 petitions and the applications for protective custody warrants 20 are typically drafted under exigent circumstances and often 21 considered and granted by a judge the same day they are 22 submitted. CPS officials cannot be expected to include every 23 fact that may or may not be potentially exculpatory in a 24 protective custody warrant application. They are not required to 25 provide a comprehensive recitation of every detail of the 26 investigation up to that point. The warrant application need 27 only include sufficient information to ensure that the facts 28 presented are not “so wrenched from [their] context that the 1 judicial officer will not comprehend how [they] fit[] into the 2 larger puzzle.” See Scanlon, 92 F.4th at 799 . Officials need 3 only provide an adequately complete representation of the “total 4 story” so as to not be “materially misleading.” See id. 5 (emphasis added). 6 Plaintiffs have been unable to point to any case, 7 either at the Supreme Court or circuit level, which would have 8 placed Starkes on notice that she could not rely upon the 9 information provided to her by other social workers or law 10 enforcement officers in drafting her application to the court. 11 Much to the contrary, prevailing caselaw suggests they may do so. 12 See Motley, 432 F.3d at 1081 . Nor have plaintiffs been able to 13 identify any caselaw to even suggest to Starkes that she had a 14 constitutional obligation to conduct a further investigation 15 under the circumstances. See Ewing, 588 F.3d at 1224 . 16 As the Supreme Court has taught us, qualified immunity 17 protects “all but the plainly incompetent or those who knowingly 18 violate the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986). 19 There is nothing in the record to permit an inference that 20 defendants here were either plainly incompetent or knowingly 21 violated the law. Accordingly, even if the court were to 22 conclude that defendants’ conduct violated the Fourteenth 23 Amendment, at the very least they would be entitled to qualified 24 immunity. 25 C. False Imprisonment 26 Plaintiffs allege that Starkes and Smith committed 27 false imprisonment through their misrepresentations in the 28 warrant application. Defendants do not address the elements of a 1 false imprisonment claim, but rather argue that the social 2 workers’ communications with the Juvenile Court are privileged 3 under California Civil Code § 47. 4 Section 47 “establishes a privilege that bars liability 5 in tort for the making of certain statements. Pursuant to 6 section 47(b), the privilege bars a civil action for damages for 7 communications made ‘[i]n any (1) legislative proceeding, (2) 8 judicial proceeding, (3) in any other official proceeding 9 authorized by law, or (4) in the initiation or course of any 10 other proceeding authorized by law and reviewable pursuant to 11 [statutes governing writs of mandate].’” Hagberg v. California 12 Fed. Bank, 32 Cal. 4th 350, 360 (2004) (quoting Cal. Civ. Code § 13 47(b)) (alterations in original). 14 Plaintiffs argue that defendants are not immune from 15 tort claims pursuant to section 47 if they satisfy the conditions 16 of California Government Code § 820.21(a), which provides: 17 “Notwithstanding any other provision of the law, the civil 18 immunity of juvenile court social workers, child protection 19 workers, and other public employees authorized to initiate or 20 conduct investigations or proceedings . . . shall not extend to” 21 (1) “perjury,” (2) “fabrication of evidence,” (3) “failure to 22 disclose known exculpatory evidence,” and (4) “obtaining 23 testimony by duress,” when any of these acts are “committed with 24 malice.” “Malice” is defined as “conduct that is intended by the 25 person . . . to cause injury to the plaintiff,” or “despicable 26 conduct that is carried on . . . with a willful and conscious 27 disregard of the rights or safety of others.” Id. at § 28 820.21(b). 1 Plaintiffs are correct in that “[t]he language of 2 section 820.21 includes ‘notwithstanding any other provision of 3 law’ which makes it clear that section 47 cannot be interpreted 4 without consideration of section 820.21.” See Parkes v. County 5 of San Diego, 345 F. Supp. 2d 1071 , 1085–86 (S.D. Cal. 2004). 6 Plaintiffs contend that if they have established a 7 genuine issue of material fact as to judicial deception, they 8 have also done so with respect to the exception to immunity under 9 section 820.21. However, as discussed above, the court concludes 10 that the record presents no genuine dispute of material fact 11 tending to show that Smith or Starkes engaged in judicial 12 deception based on any false representations or omissions. There 13 is thus likewise no dispute of fact as to whether they fabricated 14 evidence or failed to disclose exculpatory evidence with malice. 15 Section 820.21 therefore does not apply to Smith and 16 Starkes, and they are immune from the false imprisonment claim 17 pursuant to the section 47 litigation privilege. Cf. id. at 1086 18 (because “there is a genuine issue of material fact as to whether 19 [defendants] failed to disclose to the court exculpatory evidence 20 with malice . . . [defendants] are not entitled to summary 21 judgment based on the section 47(b) litigation privilege”). 22 Accordingly, the court will grant summary judgment in defendants’ 23 favor on the seventh claim. 24 D. Municipal Liability 25 “To sustain their Monell claim, [plaintiffs] must show 26 that the action that caused their constitutional injury was part 27 of an ‘official municipal policy of some nature.’” Scanlon, 92 28 F.4th at 811 (quoting Monell, 436 U.S. at 691 )). The existence 1 of such a “policy” may be shown in several ways, including by (1) 2 “prov[ing] the existence of a widespread practice that, although 3 not authorized by written law or express municipal policy, is so 4 permanent and well settled as to constitute a custom or usage 5 with the force of law,” City of St. Louis v. Praprotnik, 485 U.S. 6 112, 127 (1988) (plurality opinion) (citation and internal 7 quotation marks omitted), or (2) demonstrating that the 8 municipality failed to adequately train employees so as to avoid 9 the constitutional violations that occurred, see City of Canton, 10 Ohio v. Harris, 489 U.S. 378, 388 (1989). 11 Plaintiffs allege that the County of Sacramento is 12 liable based on (1) a “take one, take all” policy whereby CPS 13 automatically removes all children from a home even if “only one 14 [child] is the subject of allegations which might justify 15 removal” (SAC ¶¶ 159-60); (2) inadequate training or supervision 16 of social workers with respect to the constitutional rights that 17 must respected in the course of removal proceedings (id. ¶¶ 15318 55); and (3) a longstanding practice of improperly removing 19 children without probable cause by engaging in judicial deception 20 (id. ¶¶ 158, 167). 21 The parties have not identified any evidence in the 22 record concerning the “take one, take all” policy. To the 23 court’s knowledge, the only evidence concerning the training of 24 County social workers indicates that social workers are trained 25 to be honest in their dealings with the juvenile courts and 26 respect families’ constitutional rights. (See Dominique Smith 27 Dep. at 37:06-12; Starkes Dep. at 40:08-41:11; Docket No. 88-1 at 28 104-11.) 1 In support of their allegation of a longstanding 2 practice of judicial deception, plaintiffs cite three cases 3 brought against the County of Sacramento wherein social workers 4 were alleged to have engaged in judicial deception. However, 5 these cases do not constitute evidence the court can rely upon. 6 Two of them settled prior to summary judgment. (See Henao v. 7 County of Sacramento, 2:22-cv-00352 MCE KJN, Docket Nos. 24-29; 8 Welch v. County of Sacramento, 2:07-cv-00794 GEB EFB, Docket Nos. 9 14-35.) Olvera v. County of Sacramento, 2:10-cv-550 WBS KJM, 10 made it to summary judgment, but the court only determined that 11 there was a dispute of material fact as to whether the social 12 workers engaged in judicial deception, see 932 F. Supp. 2d 1123 , 13 1165 (E.D. Cal. 2013) (Shubb, J.), and the case settled before 14 trial (see Olvera Docket Nos. 208-221). 15 Plaintiffs also provide declarations from Joseph Henao 16 and Jonathan Welch (see Docket No. 88-1 at 11-15, 124-27), the 17 plaintiffs in the Henao and Welch matters cited above. 18 Plaintiffs stated in their opposition that these witnesses were 19 “disclosed in Rule 26 statements,” but do not provide 20 documentation to support that assertion. (See Opp’n at 29.) In 21 reply, defendants provided a copy of plaintiffs’ Rule 26 initial 22 disclosures, which do not disclose Mr. Henao and Mr. Welch. (See 23 Docket No. 103-3 at 13-22.) 24 “If a party fails to provide information or identify a 25 witness as required by Rule 26(a) or (e), the party is not 26 allowed to use that information or witness to supply evidence on 27 a motion, at a hearing, or at a trial, unless the failure was 28 substantially justified or is harmless.” Fed. R. Civ. Proc. nnn en nnn enn nnn nn nn nnn nn nnn ne on nn OO 1 37 (c) (1). As plaintiffs have shown neither that the witnesses 2 | were properly disclosed nor that any failure to disclose was 3 justified or harmless, the court cannot consider the declarations 4 of Mr. Henao and Mr. Welch. See Merch. v. Corizon Health, Inc., [5] 993 F.3d 733, 740 (9th Cir. 2021) (“Rule 37(c) (1) is an 6 ‘automatic’ sanction that prohibits the use of improperly 7 | disclosed evidence,” which litigants can “escape .. . only if 8 they prove that the discovery violations were substantially 9 justified or harmless”) (quoting Yeti by Molly, Ltd. v. Deckers 10 Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir. 2001)).4 11 Because there is no evidence before the court to 12 support any of plaintiffs’ Monell theories, the court will grant 13 summary judgment in favor of defendant County of Sacramento on 14 the sixth claim. 15 IT IS THEREFORE ORDERED that defendants’ motion for 16 summary judgment be, and the same hereby is, GRANTED in favor of 17 | defendants on the third claim for judicial deception, sixth claim 18 under Monell, and seventh claim for false imprisonment. 19 IT IS FURTHER ORDERED that, based on plaintiffs’ 20 abandonment of the claims, the fourth and fifth claims alleging 21 judicial deception in other court filings are hereby DISMISSED. 22 || Dated: April 18, 2024 dete ak. fAd.ke 23 WILLIAM B. SHUBB UNITED STATES DISTRICT JUDGE [25] 26 PO 4 At oral argument, plaintiffs’ counsel stated that he 27 failed to disclose the declarants in accordance with Rule 26 and conceded that it would be improper for the court to consider 28 | their declarations.