D.C. v. County of San Diego

— 1 — — 2 — — 3 — 4 UNITED STATES DISTRICT COURT 5 SOUTHERN DISTRICT OF CALIFORNIA — 6 — 7 D.C., J.C., and T.C., by and Case No.: 18-cv-0013-WQH-MSB through their guardian, — 8 — MELANIE CABELKA; and ORDER 9 MELANIE CABELKA, individually, — 10 — Plaintiffs, — 11 — v. — 12 — COUNTY OF SAN DIEGO; — 13 — SARAH WILSON; CARLOS 14 OMEDA; FATIMAH ABDULLAH; MARILYN — 15 — SPROAT, and DOES 1-100, — 16 — Defendants. — 17 — HAYES, Judge: — 18 — The matters before the Court are 1) the Motion to Dismiss the Second Amended — 19 — Complaint filed by Defendants Sarah Wilson, Carlos Olmeda,1 Fatimah Abdullah, and — 20 — Marilyn Sproat (ECF No. 75); 2) the Motion to Strike a Non-Party Minor’s Confidential — 21 — Information and Seal the Complaints filed by all Defendants (ECF No. 76); 3) the Motion — 22 — to Dismiss the Second Amended Complaint filed by Defendant County of San Diego (ECF — 23 — No. 77); 4) the Motion to Appoint a Neutral Guardian Ad Litem filed by Defendants (ECF — 24 — No. 74); and 5) the Ex Parte Motion to Appoint Melanie Cabelka as Guardian Ad Litem — 25 — filed by Plaintiffs (ECF No. 81). — 26 — — 27 — — 28 — 1 I. BACKGROUND 2 A. Procedural History 3 On February 28, 2019, Plaintiffs Melanie Cabelka and her minor children, D.C., 4 T.C., and J.C., filed a Second Amended Complaint against Defendants County of San 5 Diego (the “County”), Sarah Wilson, Carlos Olmeda, Fatima Abdullah, Marilyn Sproat, 6 and Does 1 through 100 (the “SAC”). (ECF No. 67). The SAC is the operative complaint 7 in this matter.2 Plaintiffs allege 1) first claim against Wilson, Olmeda, Abdullah, and Sproat 8 (collectively, the “Social Services Defendants”) for “Violation of Federal Civil Rights 9 Pursuant to United States Code, Title 42, § 1983” (id. at 28); 2) second claim against the 10 County for “Monell Related Claims 42 U.S.C. § 1983” (id. at 34) and negligence (id. at 11 38); and 3) state law claims against all Defendants for direct negligence (id. at 38), 12 negligent and/or intentional misrepresentation (id. at 41), and intentional infliction of 13 emotional distress (id. at 43). Plaintiffs seek general damages, special damages, punitive 14 damages, interest, attorneys’ fees, and costs. Id. at 44. 15 On May 29, 2019, Motions to Dismiss the SAC were filed by the Social Services 16 Defendants (ECF No. 75) and the County (ECF No. 77). On May 29, 2019, Defendants 17 collectively filed a Motion to Strike and Seal the Complaints (ECF No. 76) and a Motion 18 to Appoint a Guardian Ad Litem (ECF No. 74). On June 12, 2019, Plaintiffs filed an Ex 19 Parte Motion to Appoint a Guardian Ad Litem. (ECF No. 81). On the same day, 20 Defendants filed a Response to Plaintiffs’ Ex Parte Motion. (ECF No. 82). 21 On June 24, 2019, Plaintiffs filed Responses to Defendants’ Motion to Appoint a 22 Guardian Ad Litem (ECF No. 86) and Motion to Strike (ECF No. 87). On July 1, 2019, 23 Defendants filed Replies in support of their Motion to Appoint a Guardian Ad Litem (ECF 24 No. 88) and Motion to Strike. (ECF No. 89). On July 23, 2019, Plaintiffs filed a Response 25 to the Social Services Defendants’ Motion to Dismiss (ECF No. 92), a Response to the — 26 — — 27 — 2 The original, sealed, Complaint was filed on January 3, 2018. (ECF No. 1). The First Amended — 28 — 1 County’s Motion to Dismiss (ECF No. 93), and Requests for Judicial Notice in support of 2 both Responses (ECF Nos. 92-1, 93-1).3 3 On August 16, 2019, both the Social Services Defendants (ECF No. 96) and the 4 County (ECF No. 97) filed Replies in support of their respective Motions to Dismiss. 5 Defendants also collectively filed a Response to Plaintiffs’ Requests for Judicial Notice. 6 (ECF No. 98). On August 21, 2019, Defendants filed a Request for Judicial Notice in 7 support of their Motions to Dismiss (ECF No. 99).4 8 B. Factual Allegations in the SAC 9 Plaintiff Melanie Cabelka adopted her children, T.C., D.C., and J.C., prior to March 10 2015 after their successful foster or adoptive placements in Cabelka’s home. (ECF No. 67 11 ¶¶ 23, 27). T.C. was born in 2003 (id. ¶ 4), D.C. was born in 2004 (id. ¶ 5), and J.C. was 12 born in 2009 (id. ¶ 6). 13 Plaintiffs allege that prior to March 2015, D.G., who is not a party to this action, was 14 a dependent of the Court “in the foster system.” Id. ¶¶ 30, 118. Plaintiffs allege that 15 Defendants were “responsible for the evaluation, placement, supervision, and well-being” 16 of D.G. Id. at ¶ 118. D.G. allegedly had a history of “fecal smearing, expressed suicidal 17 thoughts, violent physical outbursts culminating in the destruction of property, and 18 sexually aggressive and deviant behaviors.” Id. ¶ 45. Plaintiffs allege D.G. had “been 19 exposed to sexual abuse” (id. ¶ 36) and “had been removed from his immediately prior 20 adoptive placement . . . because he had been sexually molesting another male child . . . .” — 21 — — 22 — 23 3 Plaintiffs’ request for judicial notice is granted as to the “WIC § 827 Order Granting Access to D.G.’s Records.” (ECF Nos. 92-1 at 3, Exhibit F; 93-1 at 2, Exhibit I); see U.S. ex rel Robinson Rancheria — 24 — Citizens Council v. Borneo, 971 F.2d 244 (9th Cir. 1992) (the Court “may take notice of proceedings in 25 other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue”). Judicial notice of the other requested documents is unnecessary for this Order. 26 Plaintiffs’ additional requests for judicial notice are denied. See Asvesta v. Petroustas, 580 F.3d 1000 , 1010 n. 12 (9th Cir. 2009) (denying request for judicial notice where judicial notice would be 27 “unnecessary”). 4 Judicial notice of the requested document is unnecessary for this Order. Defendants’ request for judicial — 28 — 1 Id. at 36. Plaintiffs allege Defendants had access to information about D.G.’s history of 2 medical, behavioral, and psychological problems, including “CWS/CMS records” (id. ¶¶ 3 37, 45, 50, 63) and “reports from both prior foster parents and D.G.’s school” (id. ¶ 35). 4 Cabelka accepted D.G. into her home as a foster child in March 2015. Id. ¶ 29. 5 Plaintiffs allege that before Cabelka accepted D.G. into her home, she asked Sproat, a 6 County placement worker, how many prior placements D.G. had been in and why the prior 7 placements failed. Id. ¶ 33. Sproat allegedly told Cabelka that “there was no issue with 8 [D.G.], it was not [his] fault . . . ” (id.) and that D.G. had “great behaviors.” (id. ¶ 30). 9 Plaintiffs allege Cabelka asked D.G.’s social worker’s supervisor, Abdullah: 10 . . . if she knew anything about the history of [D.G], and if there was anything [Cabelka] should know about [him] before she committed to [his] placement — 11 — in her home. Specifically, [Cabelka] asked Abdullah if she had any 12 information regarding why D.G.’s prior adoptive placement failed. Abdullah refrained from telling [Cabelka] the truth and instead stated that the prior — 13 — adoptive placements had not ‘failed.’ Abdullah reiterated — falsely, what a 14 great kid D.G. was, and how he had no problems other than those medical problems already disclosed by Sproat, i.e., spina bifida, which was well in — 15 — hand. — 16 — 17 Id. ¶ 38. Plaintiffs allege that all of the Defendants knew or should have known D.G.’s 18 history and “actively conceal[ed] D.G.’s past aberrant behaviors,” placing Cabelka and her 19 children at risk. Id. ¶¶ 120-122. Defendants allegedly “actively suppressed this information 20 from [Cabelka] and refrained from disclosing it out of concern that if they had disclosed 21 all of the relevant information to [Cabelka], she would refuse to allow D.G. into her home.” 22 Id. ¶ 31. 23 Plaintiffs allege that from March 2015 through July 2016, Cabelka observed, or was 24 informed by D.G.’s school about, various behavioral issues including poor hygiene (id. ¶ 25 43), fecal smearing (id. ¶¶ 45, 46), suicidal thoughts and anger issues (id. ¶ 46), severe 26 violent “outbursts” and “meltdowns” (id. ¶¶ 53, 66), and watching “homosexual child 27 pornography” (id. ¶¶ 57-61). Cabelka allegedly contacted Defendants numerous times to 28 report these incidents and inquire about D.G.’s history. Id. ¶¶ 43-66. Plaintiffs allege: 1 Despite DEFENDANTS’ knowledge of D.G’s propensities for sexual and physical violence and outbursts, and [Cabelka’s] persistent reporting and — 2 — pleas for help, DEFENDANTS, and each of them, failed to take any action to 3 remove this dangerous child, D.G., from [Cabelka’s] home, or even to warn [Cabelka] of his known dangerous propensities. — 4 — 5 Id. ¶ 67. 6 Plaintiffs allege that on August 8, 2016, D.G. “violently sodomize[d] D.C.” Id. ¶ 68. 7 Cabelka reported the incident to Wilson, D.G.’s social worker, and requested D.G. be 8 removed from her home, but Wilson did not remove D.G. Id. ¶ 75. Plaintiffs allege that 9 “[o]n October 20, 2016, D.G. sexually assaulted T.C.” Id. ¶ 76. Cabelka allegedly told 10 Wilson that Cabelka “was incapable of controlling the situation and was concerned about 11 her own safety and the safety of her children . . . .” Id. ¶ 87. Wilson “advised that Social 12 Services would take care of things and directed [Cabelka] to continue on with D.G. in the 13 home, and not to report his behaviors to the police.” Id. Plaintiffs allege that “[o]n January 14 21, 2017, D.G. sexually assaulted J.C.” Id. ¶ 90. “Even after creating the initial danger . . . 15 and even after learning of D.G.’s then current sexual behaviors and molestations, 16 Defendants failed to take any action to prevent further harm to the Cabelka family . . . .” 17 Id. ¶ 123. 18 II. MOTIONS TO DISMISS 19 Federal Rule of Civil Procedure 12(b)(6) permits dismissal for “failure to state a 20 claim upon which relief can be granted.” In order to state a claim for relief, a pleading 21 “must contain . . . a short and plain statement of the claim showing that the pleader is 22 entitled to relief.” Fed. R. Civ. P. 8(a)(2). Dismissal under Rule 12(b)(6) “is proper only 23 where there is no cognizable legal theory or an absence of sufficient facts alleged to support 24 a cognizable legal theory.” Shroyer v. New Cingular Wireless Servs., Inc., 622 F.3d 1035 , 25 1041 (9th Cir. 2010) (quotation omitted). 26 “To survive a motion to dismiss, a complaint must contain sufficient factual matter, 27 accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, — 28 — 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). 1 “A claim has facial plausibility when the plaintiff pleads factual content that allows the 2 court to draw the reasonable inference that the defendant is liable for the misconduct 3 alleged.” Id. (citation omitted). However, “a plaintiff’s obligation to provide the ‘grounds’ 4 of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic 5 recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555 6 (quoting Fed. R. Civ. P. 8(a)). A court is not “required to accept as true allegations that are 7 merely conclusory, unwarranted deductions of fact, or unreasonable inferences.” Sprewell 8 v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). 9 “In sum, for a complaint to survive a motion to dismiss, the non-conclusory factual 10 content, and reasonable inferences from that content, must be plausibly suggestive of a 11 claim entitling the plaintiff to relief.” Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th 12 Cir. 2009) (quotation omitted). If both parties advance plausible alternative explanations, 13 then the “plaintiff’s complaint survives a motion to dismiss under Rule 12(b)(6),” because 14 “[t]he standard at this stage of the litigation is not that plaintiff’s explanation must be true 15 or even probable.” Starr v. Baca, 652 F.3d 1202, 1216-17 (9th Cir. 2011) (“Plaintiff’s 16 complaint may be dismissed only when defendant’s plausible alternative explanation is so 17 convincing that plaintiff’s explanation is im plausible.”). 18 Plaintiffs’ first and second causes of action are brought under 42 U.S.C. § 1983 , 19 which provides a cause of action against any person who, under color of state law, deprives 20 any citizen of any rights, privileges, or immunities secured by the Constitution and laws of 21 the United States. Ketchum v. Alameda Cty., 811 F.2d 1243, 1245 (9th Cir. 1987); see 22 Wyatt v. Cole, 504 U.S. 158, 161 (1992) 23 Plaintiffs allege in the first cause of action that they are entitled to relief under § 24 1983 because the Social Services Defendants violated provisions of the Adoption 25 Assistance and Child Welfare Act of 1980, 42 U.S.C. §§ 620 et seq. (2019) (the “Adoption 26 Act”), and various state laws and regulations (ECF No. 67 ¶¶ 105-117). In the second cause — 27 — — 28 — 1 of action, Plaintiffs allege “Monell Related Claims 42 U.S.C. § 1983” against the County 2 for violations of the Adoption Act (ECF No. 67 ¶ 128) and “California law” (id. ¶ 134). 3 Plaintiffs contend in their Responses to Defendants’ Motions to Dismiss that the 4 SAC alleges § 1983 claims against Defendants based on “substantive due process rights” 5 under the Fourteenth Amendment of the United States Constitution. (ECF No. 92 at 15-17; 6 ECF No. 93 at 14). The Social Services Defendants contend the SAC does not allege a 7 substantive due process claim, and Plaintiffs “did not provide fair notice of the claim as 8 required by Federal Rule of Civil Procedure 8.” (ECF No. 96 at 2). 9 The SAC does not allege a due process or Fourteenth Amendment claim. Plaintiffs 10 have not given Defendants “fair notice of what the . . . claim is and the grounds upon which 11 it rests.” Twombly, 550 U.S. at 555 (quotation omitted). However, Plaintiffs request leave 12 to amend in the event the Court dismisses the claims in the SAC. Accordingly, the Court 13 grants Plaintiffs leave to amend the Complaint within 14 days of this Order. Should 14 Plaintiffs fail to file an amended complaint within 14 days, the Court will rule on 15 Defendants’ Motions to Dismiss the SAC. 16 III. MOTIONS TO APPOINT A GUARDIAN AD LITEM 17 Fit parents are presumed to act in the best interests of their children. Troxel v. 18 Granville, 530 U.S. 57, 68 (2000). “Generally, when a minor is represented by a parent 19 who is a party to the lawsuit and who has the same interests as the child there is no inherent 20 conflict of interest.” Burke v. Smith, 252 F.3d 1260, 1264 (11th Cir. 2001). 21 Cabelka is the mother of minors D.C., T.C., and J.C. and represents that “Ms. 22 Cabelka is fully competent and qualified to understand and protect D.C., J.C., and T.C.’s 23 rights and interests. Ms. Cabelka has no known interests adverse to those of her children.” 24 (ECF No. 81 ¶ 5). Defendants contend that Cabelka and her children have a potential 25 conflict of interest because one party may wish to settle while another wishes to pursue — 26 — — 27 — 5 Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 693 (1978), established parameters for when entities can — 28 — 1 litigation, or one party may wish to voluntarily dismiss a claim while the other wishes to 2 continue litigating. (ECF No. 74-1 at 4). Defendants request the Court appoint neutral 3 guardian ad litem to represent D.C., T.C., and J.C.’s interests instead of Cabelka. Id. at 6. 4 No conflict of interest between Cabelka and the minor Plaintiffs is apparent at this 5 time. Cabelka has the same interests in this case as her children. The Court will follow the 6 general presumption and allow the minors’ parent to represent their interests. Burke, 252 7 F.3d at 1264. 8 IV. MOTION TO STRIKE AND SEAL THE COMPLAINT 9 “Historically, courts have recognized a ‘general right to inspect and copy public 10 records and documents, including judicial records and documents.’” Kamakana v. City and 11 Cty. of Honolulu, 447 F.3d 1172 , 1178 (9th Cir. 2006) (quoting Nixon v. Warner 12 Communs., Inc., 435 U.S. 589 , 597 & n.7 (1978)). “A party seeking to seal a judicial record 13 then bears the burden of overcoming this strong presumption by meeting the compelling 14 reasons standard. That is, the party must articulate compelling reasons supported by 15 specific factual findings . . . that outweigh the general history of access and the public 16 policies favoring disclosure . . . .” Kamakana, 447 F.3d at 1178-79 (quotations omitted). 17 The presumed right to access to court proceedings and documents can be overcome “only 18 by an overriding right or interest ‘based on findings that closure is essential to preserve 19 higher values and is narrowly tailored to serve that interest.’” Oregonian Publ’g Co. v. U.S. 20 Dist. Ct., 920 F.2d 1462 , 1465 (9th Cir. 1990) (quoting Press-Enter. Co. v. Sup. Ct., 446 21 U.S. 501 , 510 (1985)). 22 “Under the compelling reasons standard, the district court must weight relevant 23 factors, base its decision on a compelling reason, and articulate the factual basis for its 24 ruling, without relying on hypothesis or conjecture.” Pintos v. Pac. Creditors Ass’n, 605 25 F.3d 665, 659 (9th Cir. 2010) (quotations omitted). “‘Relevant factors’ include the ‘public 26 interest in understanding the judicial process and whether disclosures of the material could 27 result in improper use of the material for scandalous or libelous purposes or infringement 28 upon trade secrets.’” Id. at 659 n. 6 (citing Hagestad v. Tragesser, 49 F.3d 1430, 1434 (9th 1 Cir. 1995)); see also Kamakana, 447 F.3d at 1179 (“In general, compelling reasons 2 sufficient to outweigh the public’s interest in disclosure and justify sealing court records 3 exist when such court files might have become a vehicle for improper purposes, such as 4 the use of records to gratify private spite, promote public scandal, circulate libelous 5 statements, or release trade secrets.” (quotations omitted)). 6 Defendants request the Court seal both the SAC and FAC.6 (ECF No. 76-1 at 5). 7 Defendants contend that compelling reasons to seal the complaints include that the SAC 8 “includes confidential information about a child’s medical and mental health, including 9 juvenile court involvement,” “media reports have repeated the allegations from the 10 complaints,” and the information contained in the complaints “could have a grave impact 11 on a minor’s future livelihood.” Id. at 5. Plaintiffs contend that the complaints do not 12 contain any confidential information, and the information in the complaints has been public 13 for months. (ECF No. 87 at 7, 9). 14 The Court finds Defendants’ Motion to Seal does not set forth a compelling reason 15 “supported by specific factual findings” that outweigh the general policy of publicly 16 disclosing documents filed with the Court. Kamakana, 447 F.3d at 1178-79. The 17 complaints do not contain any information sufficient to identify the minors such as social 18 security numbers, names, dates of birth, financial account numbers, or home addresses. 19 The Motion to seal the entirety of two complaints is overbroad and not “narrowly tailored” 20 to serve a compelling interest. 21 /// 22 /// 23 /// — 24 — — 25 — 6 Defendants also request the Court strike certain paragraphs of the SAC that contain “confidential 26 information contained in D.G.’s juvenile case file” (ECF No. 76-1 at 2), because “Plaintiffs have not yet received an order from the [juvenile] court releasing D.G’s records.” Id. at 4. Plaintiffs submitted an Order 27 from the juvenile court releasing D.G.’s records, which this Court took judicial notice of. (ECF No. 92-1, Ex. F; ECF No. 93-1, Ex. I). Accordingly, the Court denies Defendants’ request to strike portions of the — 28 — CONCLUSION 2 IT IS HEREBY ORDERED that Plaintiffs are given leave to amend their Complaint 3 || within 14 days of this Order. If Plaintiff have not filed an amended complaint within 14 4 || days, the Court will rule on Defendants Motions to Dismiss the SAC. 5 IT IS FURTHER ORDERED that Melanie Cabelka is appointed as the guardian ad 6 || litem for minors D.C., T.C., and J.C. Defendants’ Motion to Appoint a Neutral Guardian 7 || Ad Litem (ECF No. 74) is DENIED. Plaintiffs’ Ex Parte Motion to Appoint Melanie 8 || Cabelka as Guardian Ad Litem (ECF No. 81) is GRANTED. 9 Defendants’ Motion to Strike and Seal the Complaints (ECF No. 76) is DENIED. 10 || Dated: September 19, 2019 BME: ie Z. A a 1] Hon. William Q. Hayes 2 United States District Court — 13 — — 14 — — 15 — — 16 — — 17 — — 18 — — 19 — — 20 — — 21 — — 22 — — 23 — — 24 — — 25 — — 26 — — 27 — — 28 —