(1-2) Motions for Summary Judgment and /or SAI (County of Orange/County of San Bernardino)

Tentative Ruling: (1) Defendants, County of Orange, Birgitt Walpus, Minda Herman, Mark Lottman, Laura Henry, Ingrid Harita’s Motion for Summary Judgment/ SAI is GRANTED.

The 1st, 2nd, and 3rd COAs all allege the right to familial association guaranteed under the 14th Amendment is “clearly established”, such that a reasonable social worker in defendants’ situation would know it is unlawful to remove a child from the care, custody, and control of her parent without good cause. (See FAC¶¶90, 101, 111.) The deprivation of rights was due allegedly by Defendant Social Workers having Plaintiff’s daughter removed from Plaintiff’s custody.

Defendants’ primary argument is that there is no evidence Defendants ever removed the child from Plaintiff’s custody. Rather, defendants argue they repeatedly recommended to Juvenile Court that Plaintiff retain custody of the child and did not recommend that custody be removed from her. Defendant suggests that facts 25, 32, 38, 42, 44, 85, and 101 support this argument. In reviewing Plaintiff’s Separate Statement, it appears that for some of the individual defendants (Maria Segovia (UMF No. 25), Ms. Walpus (UMF No. 32), the fact that they at no time recommended to the Court that custody of E.P. be removed from Plaintiff is “undisputed.” However, for Defendants Herman (UMF 38, 42, 44), Henry (UMF 85) and Lottman (UMF 101)—Plaintiff disputes that fact.

Plaintiff’s language pertaining to the dispute varies in form, but the most detailed is No. 85 wherein she states, “Disputed. By Ms. Henry’s lack of supervision of Birgitt Walpus and knowledge of previous complaints about the way Walpus had handled the case, Henry’s actions contributed to the recommendation that custody of E.P. be removed from Mother/Plaintiff, Casey Nachtrieb. County Counsel, Janelle Price, represented to the Court in the hearing on 8/21/09 that she had spoken with Mr. Lottman and Ms. Henry was in the courtroom, and his position was that the minor be removed from Mother/Plaintiff, Casey Nachtrieb.”

Plaintiff indicates the evidence in support of this fact is the Declaration of Casey Nachtrieb (Pltf Exh. 30 ¶65); Declaration of Dan Nachtrieb (Pltf Exh. 5); 8-21-09 Hearing transcript 39:20-26 (Pltf Exh. 27).

In Reviewing the Transcript from 8-21-09 submitted by Plaintiff as exhibit 27, Ms. Price states, “I spoke to Mark Lottman, who is the supervisor for Minda Herman, who is not available today. I also have present in the courtroom Laura Henry, who was the supervise [sic] of Birgitt Walpus during her handling of the case. It is our position that Ellie should be removed from the mother’s care until such time as a disposition hearing can be completed. Mr. Lottman has agreed given the Court’s ruling and the information that has been unearthed in both of our investigations that father would not present a risk to have the child in his care…Mr. Lottman has given me the go ahead to ask the court to, if the court is to remove Ellie from Mother, which we believe would be appropriate, to place with father pending the dispositional hearing.”

What is unclear in reading Plaintiff’s evidence is whether or not those statements by Ms. Price came before or after the Judge’s finding that Plaintiff “knowingly caused the child the falsely report to others, on multiple occasions, that she had been sexually abused by her father…” (See Defendants’ Exh. L is a Minute Order from 8-21-2009.)

In reading through the 8-21-09 transcript submitted by Defendants as Exh. M, Judge Hatchimonji establishes that the Court took the matter under submission on 7-24-09 (Defendant’s Exh. M, 8-21-09 Transcript, p. 64: 7). After reviewing the evidence, the Court issued its ruling, finding that “Mother knowingly caused the child to falsely report to others on multiple occasions…” (Id, pg. 66:1-22). It was only after that ruling was given that Ms. Price gave her opinion regarding placement of the minor (the portion quoted above). This is an important point. If one was to look solely at Plaintiff’s transcript of the hearing, the context of the Court’s ruling is missing. However, in reading through the entire transcript, it is clear Ms. Price makes this recommendation only after the Court makes its finding regarding the Plaintiff. So, there really is no evidence, from the 8-21-09 hearing that any social worker recommended that the minor be taken from Plaintiff’s custody prior to the Court’s ruling.

The other evidence submitted by Plaintiff is equally insufficient.

The Declaration of Casey Nachtrieb (¶65) merely states: “By the Declaration of Mark Lottman filed in support of Defendant’s MSJ, we know that either Mr. Lottman or Ms. Price is making untruthful representations to the Court. Mr. Lottman in his Declaration states at point 10. ‘at no time did either Ms. Herman or I recommend to the Court that custody of E.P. be removed from Plaintiff Casey Nachtrieb.” This declaration is not evidence that Lottman ever recommended to the Court that the minor be removed prior to the Judge’s ruling.

As to the Declaration of Dan Nachtrieb, Plaintiff fails to cite to any portion of that Declaration that might be relevant to the issues of a social worker recommending that the minor be taken from Plaintiff’s custody, and it does not appear any portion of that declaration relates to UMF 85.

Examining all the evidence presented by Plaintiff on the issue of whether or not any social worker recommended the minor be taken from Plaintiff’s custody, the basis of her Violation of Constitutional Rights Claims, it is clear Plaintiff has no evidence to support her claims that the Social Worker Defendants violated her constitutional rights.

Accordingly, summary adjudication is granted as to Issues 1-9 pertaining to the individual Social Worker Defendants and causes of action 1-3 plead against them.

Issue 10 is moot.

Issue 11 is “The Orange County Department of Children Services is not a separate legal entity, and cannot be sued in its own name.” The facts in support of this “issue” are 108 and 109—which are undisputed. GRANT.

Issue 12 is “The County of Orange—and, to the extent it is determined to be a separate legal entity capable of being sued in its own name, the Orange County Department of Children and Family Services—cannot be held liable under the first cause of action for violation of civil rights (42 U.S.C. section 1983) because a public entity cannot be held liable for a civil rights violation allegedly committed by one of its employees on a theory of respondeat superior.”

Here, it appears Defendants are really trying to ascertain under what basis Plaintiff is asserting the 1st COA against it—under respondeat superior based on the social workers’ actions, or something else. In Monell v. Department of Social Services of City of New York (1977) 436 U.S. 658 (the case cited by Defendants), the Supreme Court of the United States held local governments could not be held liable under a theory of respondeat superior but rather could be held liable only when the constitutional deprivation arises from a governmental custom. To the extent the 1st COA is pled against Defendant County of Orange on a respondeat superior theory, it is barred.

Issue 13 is “The County of Orange—and, to the extent that it is determined to be a separate legal entity capable of being sued in its own name, the Orange County Department of Children and Family Services—cannot be held liable under the first and fourth causes of action because:

A. The civil rights claims of Plaintiff is barred by the final judgment of the Juvenile Court finding the allegations in the amended petition filed May 6, 2009 to be true and placing legal and physical custody of the minor E.P. with the father.
B. No employee of the County violated Plaintiff’s constitutional rights.
C. No policy, practice or custom was the cause in fact of any violation of any of the Plaintiff’s federal civil rights.
D. The training provided to Orange County Social Workers prior to the events at issue in this case does not reflect a deliberate indifference to the constitutional rights of the individuals with whom those social workers might come into contact.

A, which is not an “issue” is not well taken.

As to B.C and D once again, liability of a local agency for a civil rights violation requires proof that a policy, practice or custom of the local public agency was the cause in fact of the alleged constitutional deprivation. (Monell, supra, 436 U.S. at 694.) However, where there is no constitutional violation by the individual defendant Social Workers the County of Orange cannot be said to have violated the Plaintiff’s rights. (See Palmerin v. County of Riverside (9th Cir. 1986) 794 F. 2d 1409, 1414-1415 and Scott v. Henrich (9th Cir. 1994) 39 F. 3d 912.) Accordingly, summary adjudication is granted as to issue 13.

Issue 14 is “The individual Defendants and the County of Orange—and, to the extent that it is determined to be a separate legal entity capable of being sued in its own name, the Orange County Department of Children and Family Services—are entitled to judgment on the fifth cause of action for declaratory relief because that cause of action is duplicative of other causes of action in the complaint.”
Summary Adjudication as to the 14 issue is GRANTED. This COA is a repeat of the other COAs. It is redundant and superfluous. A claim for declaratory relief is not “proper” since the dispute has crystallized into causes of action under other theories asserted in other causes of action in the complaint. (Cardellini v. Casey (1986) 181 Cal.App.3d 389, 397-398.)

Issue 15 is “The individual Defendants are entitled to judgment in their favor on Plaintiff’s claim for punitive damages.” Summary adjudication is MOOT on this issue.

MP is to given notice.

(2) San Bernardino Defendants’ Motion for Summary Judgment is GRANTED.

In the FAC, plaintiff claims Defendants violated her 14th Amendment Right to familial association. Specifically Plaintiff alleges the use of false evidence and suppressed evidence by these social workers led to the removal of Plaintiff’s child from her custody, thereby violating her 14th Amendment right to familial association. (FAC¶¶90, 91, 92, 93, 119, 120). Plaintiff also pleads violation of due process, but the basis and gravamen of her entire FAC is the removal of the child from her custody in violation of her 14th Amendment Right to familial association.

After a review of all of Plaintiff’s allegations and evidence against two counties and two handfuls of social workers, two things are clear. First, irrespective of whether or not Defendant Escalera failed to interview Plaintiff, etc. when he took over the San Bernardino action, he was not responsible for E.P.s removal from Plaintiff’s custody. Even if he was responsible for the Petition being dismissed in San Bernardino, there is no evidence the dismissal resulted in E.P. being removed from Plaintiff’s custody.

Second, the decision to remove E.P. from Plaintiff’s custody was Judge Hatchimonji’s, based in large part on Plaintiff’s own lack of credibility at trial. It had nothing to do with anything involving the County of San Bernardino or its social workers. Judge Hatchimonji found that, “One of the key bases for this Court’s ruling is the testimony at trial of the mother, Casey Nachtrieb. This is one of those cases where the outcome of the case turns heavily on the demeanor of the witness while testifying, where the demeanor of the witness casts all other evidence in a different or clear light.

Ms. Nachtrieb was completely without credibility. Her responses to questions often parsed words and phrases, split semantical hairs and more when confronted with contradictory evidence. Beyond the incredible nature of her words was the incongruent and disproportional nature of her very affect and demeanor in relation to her testimony, the questions posed, and the nature of the proceeding.” (Emphasis added, RFJN, Exh. 1 pg. 69:15-25.) Judge Hatchimonji goes on and details specific instances where Plaintiff lacked credibility when questioned at trial. (RFJN, Exh. 1 pages 69-74.)

Judge Hatchimonji established that irrespective of the other evidence in the Juvenile Case, he relied most heavily on Plaintiff’s own testimony in rendering his decision to remove E.P. from Plaintiff’s custody. Again, nothing the County of San Bernardino and its employees did or did not do resulted in any violations of Plaintiff’s 14th Amendment Rights as she alleges.

Furthermore, Judge Hatchimonji specifically found that “With respect to the molestation allegations which gave rise to the San Bernardino County dependency case, no credible evidence was offered to cause this court to question the basis for the eventual dismissal of this case on March 21, 2008. To be sure mother has made many statements in many forums to many people calling into questions the dismissal of the San Bernardino case, but for reasons I will discuss I do not find these protestations to be credible or persuasive.” (RFJN, Exh.1 Pg. 67: 16-24.)

Although this Court believes res judicata and collateral estoppel are inappropriate in this instance, the Court is entitled to give that statement by Judge Hatchimonji significant deference.

All in all, nothing these Moving Defendants did or did not do either “shocks the conscience” nor rises to the level of 14th Amendment violation; and therefore, the motion for summary judgment is granted.

Again, as with motion 1, the 5th COA declaratory relief claim is superfluous and the claims are crystallized in other COAs.

RFJN granted. MP’s are to give notice.