Disposed - Dismissed
Personal Injury - Other Personal Injury
Los Angeles, California
JON R. TAKASUGI
MARK A. YOUNG
COUNTY OF LOS ANGELES
DEPARTMENT OF CHILDREN AND FAMILY SERVICES
LEE ANGELA Y
MCNICHOLAS JOHN PATRICK III
PATE LINDA WALLACE ESQ.
VERDUCCI JAIME E.
1/18/2023: Appeal - Remittitur - Affirmed - APPEAL - REMITTITUR - AFFIRMED (B311569)
1/18/2023: Appeal - Remittitur - Affirmed - APPEAL - REMITTITUR - AFFIRMED (B307969)
9/7/2021: Appeal Document - APPEAL DOCUMENT RESPONDENT'S NOTICE RE: APPEAL RECORD DELIVERY. GOVERNMENT AGENCY-NO FEE FOR CLERK'S TRANSCRIPT ON APPEAL
8/24/2021: Appeal - Notice of Fees Due for Clerk's Transcript on Appeal
8/10/2021: Appeal - Notice Court Reporter to Prepare Appeal Transcript
5/3/2021: Appeal - Notice of Default Issued - APPEAL - NOTICE OF DEFAULT ISSUED "U"
4/15/2021: Appeal - Notice of Fees Due for Clerk's Transcript on Appeal - APPEAL - NOTICE OF FEES DUE FOR CLERK'S TRANSCRIPT ON APPEAL 9/28/20 B307969 AMENDED
4/6/2021: Appeal - Notice of Fees Due for Clerk's Transcript on Appeal - APPEAL - NOTICE OF FEES DUE FOR CLERK'S TRANSCRIPT ON APPEAL 9/28/20 B307969
3/23/2021: Appeal - Ntc Designating Record of Appeal APP-003/010/103 - APPEAL - NTC DESIGNATING RECORD OF APPEAL APP-003/010/103 "U"
3/23/2021: Appeal - Notice of Filing of Notice of Appeal - APPEAL - NOTICE OF FILING OF NOTICE OF APPEAL "U"
3/16/2021: Notice - NOTICE NOTICE OF ENTRY OF JUDGMENT
3/15/2021: Notice of Rejection - Post Judgment
3/12/2021: Appeal - Notice of Appeal/Cross Appeal Filed - APPEAL - NOTICE OF APPEAL/CROSS APPEAL FILED "U" APPEAL
2/18/2021: Appeal - Notice Court Reporter to Prepare Appeal Transcript - APPEAL - NOTICE COURT REPORTER TO PREPARE APPEAL TRANSCRIPT B307969 NOA 09/28/2020
2/18/2021: Judgment - JUDGMENT [PROPOSED] JUDGMENT IN FAVOR OF COUNTY OF LOS ANGELES DEFENDANTS
2/17/2021: Minute Order - MINUTE ORDER (HEARING ON MOTION FOR ATTORNEY FEES)
2/8/2021: Reply - REPLY DEFENDANTS COUNTY OF LOS ANGELES, SAMANTHA HURTADO, CAROLYN PYLES, SUSANA RODARTE, ANGELA LEE, JAMIE HEIN, AND ANGELA THOMAS REPLY TO OPPOSITION TO MOTION FOR ATTORNEYS FEES AND EXPERT
2/2/2021: Request for Judicial Notice
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DocketRequest for Refund of Reporter Appeal Transcript Deposit with affidavits attached; NA03/12/21; APPROVED 09/30/21;; Filed by: Clerk[+] Read More [-] Read Less
DocketAppeal Document Respondent's Notice Re: Appeal Record Delivery. Government Agency-No fee for Clerk's Transcript on Appeal; Filed by: Attorney[+] Read More [-] Read Less
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DocketMinute order entered: 2018-06-07 00:00:00[+] Read More [-] Read Less
DocketSpecial Status Start:Removed to Federal Court[+] Read More [-] Read Less
DocketCase Dispo/Manner:Removal to Federal Court 128 Days[+] Read More [-] Read Less
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Case Number: ****7511 Hearing Date: January 15, 2021 Dept: M
CASE NAME: Natasha Thompson, et al. v. County of Los Angeles, et al.
CASE NO.: ****7511
MOTION: Plaintiffs’ Motion Tax Costs
A prevailing party in litigation may recover costs, including but not limited to filing fees. (Code Civ. Proc., ;1033.5(a)(1).) “A prevailing party who claims costs must serve and file a memorandum of costs within 15 days after  the date of service of the notice of entry of judgment or dismissal by the clerk under Code of Civil Procedure section 664.5 or  the date of service of written notice of entry of judgment or dismissal, or  within 180 days after entry of judgment, whichever is first.” (CA Rules of Court, Rule 3.1700(a).) Under Code of Civil Procedure section 1033.5(c)(2), allowable costs are only recoverable if they are “reasonably necessary to the conduct of the litigation.” Even mandatory costs, when incurred unnecessarily, are subject to section 1033(c)(2). (Perko’s Enterprises, Inc. v. RRNS Enterprises (1992) 4 Cal.App.4th 238, 245.) Section 1033.5(c)(4) provides that “[i]tems not mentioned in this section and items assessed upon application may be allowed or denied in the court’s discretion.” (Code Civ. Proc., ;1033.5(c)(4).)
Under California Rules of Court Rule 3.1700, a party may file and serve a motion to tax costs listed in a memorandum of costs. (See CRC Rule 3.1700(b).) Under Rule 3.1700(b)(1), “Any notice of motion to strike or to tax costs must be served and filed 15 days after service of the cost memorandum. If the cost memorandum was served by mail, the period is extended as provided in Code of Civil Procedure section 1013. If the cost memorandum was served electronically, the period is extended as provided in Code of Civil Procedure section 1010.6(a)(4).” A verified memorandum of costs is prima facie evidence that the costs, expenses, and services therein listed were necessarily incurred. (Rappenecker v. Sea-Land Serv., Inc. (1979) 93 Cal.App.3d 256, 266.) A party seeking to tax costs must provide evidence to rebut this prima facie showing. (Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1266.) Mere statements unsupported by facts are insufficient to rebut the prima facie showing that costs were necessarily incurred. (Id.)
Plaintiffs seek for an order striking Defendant County of Los Angeles’ and the individual social workers’ Memorandum of Costs, or in the alternative, for an order taxing costs. The Court addresses the arguments in the order listed in Plaintiffs notice of motion and in the Memorandum of Costs.
Line 1 – Filing fees and Motion fees
Plaintiffs requests that the Court tax item 1 because the filing and motion fees in the amount of $1,646.45 were incurred in the federal action entitled Natasha Thompson, et al. v. County of Los Angeles, et al. 2:18-cv-03469-GW-RAO (“Federal Action”). In opposition, Defendants argue that these costs have not been awarded by the Federal Court. Defendants further argue that they found $504.25 in this category of fees that were not awarded by the District Court. In reply, Plaintiffs contend that Defendants’ are not entitled to all filing and motions fee that were not awarded by the District Court.
Since Plaintiffs challenge the costs, the burden is on Plaintiffs to show that the costs are improper. Here, Plaintiffs have not pointed to authority that Defendants cannot recover costs incurred in an action that started in state court, was removed to federal court, and later remanded to state court. Filing fees are expressly recoverable under Code of Civil Procedure section 1033.5(a)(1). Moreover, Plaintiffs have not shown that Defendants have already been awarded these challenged costs costs. Therefore, the motion to tax these costs is DENIED.
Line 4 – Deposition Costs and Line No. 5 - Service of Process Fees
Under Code of civil Procedure section 1033.5(a)(3)(A), the costs incurred in “[t]aking, video recording, and transcribing necessary depositions, including an original and one copy of those taken by the claimant and one copy of depositions taken by the party against whom costs are allowed” are recoverable. (Code Civ. Proc., ; 1033.5(a)(3)(A).). Defendants specify that they are seeking costs for videotaping depositions. (See Memo of Costs at p. 7.) Defendants identify a District Court local rule prohibiting an award of cost relating to video depositions unless ordered by the Court, and argues that they were not reimbursed for these costs by the federal court. These costs, however, are recoverable in state court. Moreover, Plaintiffs have not shown that these costs were not “reasonably necessary to the conduct of the litigation.” Since these costs are allowed by statute, the motion to tax costs in line 4 is DENIED.
As to service of process fees (line 5), Defendants conceded in their opposition that they are not entitled to these costs since they were awarded by the District Court. Therefore, the motion to tax costs is GRANTED as to line 5.
Line 8 – Witness Fees
Plaintiffs seek to tax item no. 8 because Defendants seeks expert witness fees in the sum of $37,315.00. The memorandum of costs explains that Defendants seek expert fees pursuant to Code of Civil Procedure section 998. Plaintiffs argue that these costs are not permissible under 1033.5(a)(8) because the Court did not order experts. In opposition, Defendants argue that they seek expert costs pursuant to Code of Civil Procedure section 998. Defendants further argue that they made an offer of judgment under Federal Rules of Civil Procedure Rule 68, which permits the recovery of these fees as if the offer was made under section 998.
Code of Civil Procedure ; 998 (c)(1) provides, “If an offer made by a defendant is not accepted and the plaintiff fails to obtain a more favorable judgment or award, the plaintiff shall not recover his or her postoffer costs and shall pay the defendant's costs from the time of the offer. In addition . . . the court . . . in its discretion, may require the plaintiff to pay a reasonable sum to cover postoffer costs of the services of expert witnesses, who are not regular employees of any party, actually incurred and reasonably necessary in either, or both, preparation for trial or arbitration, or during trial or arbitration, of the case by the defendant.” (Code Civ. Proc., ; 998(c)(1) [double emphasis added].) Rule 68(d) of the Federal Rules of Civil Procedure provides that “[i]f the judgment that the offeree finally obtains is not more favorable than the unaccepted offer, the offeree must pay the costs incurred after the offer was made.” (Fed. Rules Civ. Proc., Rule 68(d), 28 U.S.C.) “[A]n award of expert fees under section 998, subdivision (c) is always discretionary, unlike other costs to which a prevailing party is entitled as a matter of right. [citation omitted.]” (Chaaban v. Wet Seal, Inc. (2012) 203 Cal.App.4th 49, 54–55.)
Plaintiffs cite no authority for the proposition that Defendants need to make separate offers under state and federal law to recover these costs. Moreover, Plaintiffs waived the argument that Defendants cannot recover costs under Code of Civil Procedure section 998 by failing to raise it in the initial motion – the costs memorandum included the worksheets and Defendants marked that they were claiming expert fees pursuant to Code of Civil Procedure section 998 . Here, the Rule 68 offer was made and served on the Plaintiffs on September 11, 2018. (See Ex. A to Ikeda Decl.) The invoices provided by Defendants all show that they incurred expert fees after the Rule 68 offer (see generally Ex. K to Ikeda Decl.) and that Defendants ultimately prevailed on their summary judgment motions as well as on demurrer. The Court exercises its discretion and awards these costs, therefore, the motion to tax is denied as to Line 8.
Line 11 – Court Reporter Fees as Established by Statute
Plaintiffs argue that the costs identified in line 11 should be taxed because the Court did not order transcripts of court proceedings. Defendants argue that they misidentified these costs as court reporter fees and that the fees should have been included with the deposition costs. The provision authorizing deposition costs does not provide for cancellation costs. Therefore, the motion to tax costs as to line 11 is GRANTED.
Line 12 – Models, Enlargements, and Photocopies of Exhibits
Plaintiffs seek to tax the costs identified in item no. 12. Plaintiffs argue that Defendants seek costs for copies of exhibits in the sum of $1,768.91 which should be taxed because they were incurred for the motion for summary judgment in the Federal Action, and which were not reasonably necessary to litigation the instant matter. On page 4 of the memorandum of costs, Defendants claimed that they were seeking these costs for “exhibits for Motions for Summary Judgment and costs for discovery documents.” In opposition, Defendants concede that Line 12 should be reduced to $1,329.71 and that Defendants are seeking costs for copies of pleadings in the Federal Action submitted in support of the demurrer and the special motion to strike.
Plaintiffs have failed to show that these costs were not reasonably incurred. A verified cost memorandum is prima facie evidence that the costs were reasonably incurred. Therefore, the motion to tax costs is DENIED as to line 12, and costs are awarded in the reduced amount of $1,329.71.
Line 14 – Fees for Electronic Filing or Service
Plaintiffs seeks to strike line 14 because Defendants seek costs for records that were subpoenaed in the Federal Action. In opposition, Defendants argue that these costs are for electronic filing fees that were inadvertently omitted by Defendants in their motion to the District Court. In reply, Plaintiffs argue that Defendants have failed to meet their burden in justifying these costs. As previously stated, a verified cost memorandum is prima facie evidence that the costs were reasonably incurred. The costs appear proper on their face. Therefore, the motion to tax these costs is DENIED.
Line 16 – Other
Finally, Plaintiff argues that the costs claimed in item 16 should be taxed in its entirety. Plaintiffs seek to tax cost in the amount of $5,898.71. In opposition, Defendants argue that they now only seek $2,500.12. “Items not mentioned in this section and items assessed upon application may be allowed or denied in the court's discretion.” (Code Civ. Proc., ; 1033.5(c)(4).) The Court exercises its discretion and allows the amount to stand at $2,500.12.
Case Number: ****7511 Hearing Date: July 28, 2020 Dept: M
CASE NAME: Natasha Thompson, et al. v. County of Los Angeles, et al.
CASE NO.: ****7511
MOTIONS: County Defendants’ Demurrer with Motion to Strike
County Defendants’ Special motion to strike (Anti-SLAPP)
HEARING DATE: 7/28/2020
Plaintiffs filed a complaint on December 19, 2017 in Los Angeles County Superior Court. The complaint contained eight causes of action, including: (1) liability under Government Code ; 820.21; (2) liability under Government Code ; 820.21; (3) intentional infliction of emotional distress; (4) intentional infliction of emotional distress; (5) unlawful seizure pursuant to 42 U.S.C. ; 1983; (6) violation of civil rights pursuant to 42 U.S.C. ; 1983; (7) due process pursuant to 42 U.S.C. ; 1983; and (8) Monell related claims.
On April 26, 2018, The County of Los Angeles and Department of Children and Family Services (DCFS) filed a notice of removal of the entire action to federal district court. Thereafter, the parties litigated the claims in federal court.
Plaintiff filed a second amended complaint in federal court (hereinafter, the “Federal 2AC”) on July 3, 2018, alleged two state law claims and four federal law claims, specifically: (1) negligence per se; (2) intentional infliction of emotional distress; (3) unlawful seizure pursuant to the Fourth Amendment; (4) violation of familial privacy rights pursuant to the First and Fourteenth Amendments; (5) deprivation of due process under the Fourteenth Amendment; and (6) a municipal liability claim under Monell. On March 11, 2019, the federal court granted Defendants’ motions for summary judgment on the federal claims and declined to take supplemental jurisdiction on the state law claims. On March 19, 2019, the matter was remanded from federal court. (See 3/18/2019 Notice of Remand.)
On October 8, 2019, Plaintiffs Natasha Thompson, Delmas Griffin, and J.G. through his guardian ad litem, Natasha Thompson, filed a second amended complaint in state court (State 2AC) against Defendants County of Los Angeles, Sandi Brown, Samantha Hurtado, Carolyn Pyles, S. Rodarte, Angela Y. Lee, Jamie Hein, and Angelica Thomas containing two causes of action: (1) negligence per se and (2) intentional infliction of emotional distress. On December 12, 2019, the County Defendants filed a demurrer along with a motion to strike.
Plaintiffs allege on Thursday, August 31, 2016, “just before the long Labor Day weekend, 4-year-old non-verbal, special education student, developmentally delayed Minor Plaintiff J.G. was pulled by his legs by a fellow student from and fell on his butt at school and
J.G. sustained a left humeral fracture. On Monday, after Labor Day, 9/2/2016, the radiologist at Orthopedic Children’s Institute (“OCI”) in downtown Los Angeles, diagnosed J.G.’s fracture as ‘accidental.’ Thereafter, a yet to be identified caller to DCFS’s hotline purportedly made a report regarding J.G.’s injury. This report did not meet the DCFS definition of “physical abuse” required by either the DCFS “Hotline Assessment Tools” or the “SDM Assessment” definitions described above. Nor did this report from the yet to be identified caller say that either Natasha Thompson or Delores Griffin had personally harmed J.G., (a requirement of DCFS Policy 0050-502.10 (“Child Protection Hotline”). (See also, the SDM Policies and Procedures Manual, SDM 3.0.)” (See SAC ¶ 38.) “On or about 8/31/2016, the Thursday before the long Labor Day weekend, Plaintiff Delmas Griffin picked up J.G. from school at approximately 1:15 p.m. on a shortened school day that ended at approximately 1:30. p.m. J.G. did not cry, nor did he display symptoms of pain, however, Griffin noticed that J.G. had difficulty getting in the car seat and putting on his seatbelt.” (Id. ¶ 48.) “That evening Plaintiff Griffin gave J.G. a warm bath, children’s Tylenol, and applied a topical treatment to J.G.’s left shoulder. That same evening, J.G. did not pick up his Legos or play with the trains that he loved, as he usually did. His range of motion remained limited throughout the evening and continued for which there seemed to be no explanation. Plaintiffs Griffin and Thompson believed J.G. had suffered a sprain at school because he was fine when he went to school on Wednesday, 8/31/2016, but had problems getting into the car seat after school. Natasha Thompson, J.G.’s mother, called Palms Elementary School the next day, Thursday, 9/1/2016. Thompson asked Principal William Lamb if something happened to J.G. at school the day before- - on 8/31/2016. Mr. Lamb told her that he did not know because he was not on campus on 8/31/2016. On the same day, 9/1/2016, Thompson contacted J.G.’s pediatrician who advised her to take J.G. to Orthopedic Institute for Children (“OIC”) in downtown Los Angeles. Thompson called OIC that same day, Thursday 9/1/2016, and scheduled a 7:00 a.m. appointment for the next day, Friday, 9/2/2016. (School was in recess for the Labor Day weekend from 9/2- to 9/6/16.)” (Id. ¶ 49.)
“Principal Lamb, a mandated reporter, called L.A.P.D. and reported physical abuse of the then four-year-old J.G. by an unknown party in response to Griffin’s request for information how J.G. sustained his shoulder facture at school. At the time of this report, Principal Lamb was unaware that another student had pulled J.G. by the legs causing J.G. to fall from an apparatus three feet to the ground. This information was not reported to DCFS until after J.G. was forcibly removed from the custody of Griffin and Thompson.” (Id. ¶ 54.)
Plaintiffs allege that County Defendants Brown, Hurtado, Pyles, Lee, Hein, and Thomas violated mandatory statutory duties by failing to ensure that they had authority to remove J.G. for “physical abuse” and that physical abuse existed prior to, and during, the seizure and four-month separation of J.G. from his parents. Plaintiffs allege that since J.G.’s fracture was diagnosed accidental by his radiologist, Defendants did not have authority to seize J.G. and therefore, they violated mandatory statutory duties imposed by CDSS Manual, Regulation 31-135, among other statutory duties. (See SAC ¶¶ 135-141.) Plaintiffs allege that by failing to follow their statutory duties, Defendants caused harmed to Plaintiffs. Plaintiffs also allege that Defendants falsified evidence that resulted in the seizure of J.G. Finally Plaintiffs allege that suffered severe emotional distress as a result of Defendants’ conduct.
“Before filing a demurrer . . . the demurring party shall meet and confer in person or by telephone with the party who filed the pleading . . . for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Code Civ. Proc., ; 430.41.) To properly file a demurrer with the court, the party must also file a declaration noting that he or she “met and conferred with the party who filed the pleading subject to demurrer, and that the parties did not reach an agreement resolving the objections raised in the demurrer. [or] (B) That the party who filed the pleading subject to demurrer failed to respond to the meet and confer request of the demurring party or otherwise failed to meet and confer in good faith.” (Code Civ. Proc., ; 430.41(A) & (B).)
A demurrer for sufficiency tests whether the complaint alleges facts sufficient to constitute a cause of action. (Code Civ. Proc., ; 430.10; Young v. Gannon (2002) 97 Cal.App.4th 209, 220. The court “may consider all material facts pleaded in the complaint and those arising by reasonable implication therefrom; it may not consider contentions, deductions or conclusions of fact or law. (Young v. Gannon (2002) 97 Cal.App.4th 209, 220 (citing Moore v. Conliffe Montclair Parkowners Assn. v. City of Montclair The court treats all facts alleged in the complaint to be true. (Picton v. Anderson Union High School Dist. (1996) 50 Cal.App.4th 726, 732.)
When considering demurrers, courts “are required to construe the complaint liberally to determine whether a cause of action has been stated, given the assumed truth of the facts pleaded.” (Picton v. Anderson Union High School Dist. (1996) 50 Cal.App.4th 726, 733 (citing Rogoff v. Grabowski (1988) 200 Cal.App.3d 624, 628.)) “The burden is on the plaintiff to demonstrate the manner in which the complaint can be amended.” (Ross v. Creel Printing & Publishing Co. (2002) 100 Cal.App.4th 736, 748.)
Motions to strike are used to reach defects or objections to pleadings that are not challengeable by demurrer (i.e., words, phrases, prayer for damages, etc.). (See Code Civ. Proc., ;; 435, 436 & 437.) “The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.” (Code Civ. Proc., ; 437.) “The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. [or] (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” (Code Civ. Proc., ; 436.) A motion to strike must be filed within the time allowed to respond (e.g., 30 days after service of the complaint or cross-complaint) unless extended by court order.
Where there are grounds for a demurrer and a motion to strike, they must be filed together and noticed for hearing at the same time. (Code Civ. Proc., ; 435(b)(3) and CRC Rule 329.)
REQUEST FOR JUDICIAL NOTICE
Plaintiffs request judicial notice in support of their opposition to the demurrer. The request is GRANTED.
Meet and confer
The parties have satisfied the meet and confer requirements. (See Verducci Decl. ¶ 14.)
Whether issue preclusion bars this complaint
County Defendants argue that the complaint fails to state a cause of action for negligence per se and for intentional infliction of emotional distress due to issue preclusion. In support of their argument, Defendants lodged documents that were filed in the case while active in federal court. However, Defendants did not seek judicial notice of these documents. The Court, on its own motion, takes judicial notice of the court documents lodged as part of the court’s record. (See Reilly v. City and County of San Francisco (2006) 142 Cal.App.4th 480, 487 fn. 3 [Court taking judicial notice on own motion].) “A demurrer may be sustained if the inability to state a claim on which relief may be granted appears from facts that are judicially noticeable. [Citations omitted.]” (Gabriel v. Wells Fargo Bank, N.A. (2010) 188 Cal.App.4th 547, 556.) The Court further notes, “‘[O]nly where the order or judgment establishes a fact for purposes of ... res judicata or collateral estoppel, would the fact so determined be a proper subject of judicial notice.’ (Kilroy v. State (2004) 119 Cal.App.4th 140, 147, 14 Cal.Rptr.3d 109 ; see also Rodgers v. Sargent Controls & Aerospace (2006) 136 Cal.App.4th 82, 90, 38 Cal.Rptr.3d 528 [and cases cited therein].)” (Barri v. Workers' Comp. Appeals Bd. (2018) 28 Cal.App.5th 428, 437.)
Defendants argue that issue preclusion bars the instant action. Collateral estoppel prohibits the relitigation of an issue only if: (1) the issue is identical to an issue decided in a prior proceeding; (2) the issue was actually litigated; (3) the issue was necessarily decided; (4) the decision in the prior proceeding is final and on the merits; and (5) the party against whom collateral estoppel is asserted was a party to the prior proceeding or in privity with a party to the prior proceeding.” (Zevnik v. Superior Court (2008) 159 Cal.App.4th 76, 82 [citing Lucido v. Superior Court (1990) 51 Cal.3d 335, 341].) Courts will not apply collateral estoppel even if all of the elements are met “if considerations of policy or fairness outweigh the doctrine's purposes as applied in a particular case [citations omitted] or if the party to be estopped had no full and fair opportunity to litigate the issue in the prior proceeding. [Citations omitted.] (Ibid.)
Defendants argue that Plaintiffs’ State 2AC alleges the same facts as the Federal 2AC. Defendants further argue that the federal district court made specific findings of fact as to four key facts: “(1) DCFS is authorized to investigate a referral to the child abuse and neglect hotline and is entitled to take temporary custody of a child pursuant to the Welfare and Institutions Code with no prior medical diagnosis; (2) Plaintiffs' proffered evidence in support of the wrongful detention (the HUB medical evaluation report obtained the night of J.G.'s detention) is not exculpatory evidence, and is in fact prima facie evidence of abuse or neglect to J.G.; (3) the individual defendants did not engage in any perjury, falsification of evidence, or failure to produce exculpatory evidence as alleged; and (4) Plaintiffs did not establish a prima facie case of unlawful warrantless detention of J.G., or any other violation of their federal civil rights.” (See Demurer at 3:4-11.)
In opposition, Plaintiffs argue that issue preclusion does not apply because the federal district court declined to exercise jurisdiction over the state claims and remanded them to state court and, therefore, Plaintiffs’ state claims are not precluded even if based on the same operative facts. Plaintiffs cite Merry v. Coast Community College Dist. (1979) 97 Cal. App. 3d. 214, 229 in support of this position, but Merry is unavailing. The background of Merry is instructive. In Merry:
plaintiff filed a second action in federal district court (Merry II) naming as defendants the district, members of its board of trustees, and certain administrative officers and employees of the district. The action was captioned as one to “redress various grievances and violations of civil rights under color of law” and “for declaratory relief.” The complaint alleged substantially the same facts alleged in Merry I, and asserted claims under the Civil Rights Act, the Fifth and Fourteenth Amendments, and article I, section 8, clause 8 of the United States Constitution, and sought declaratory relief respecting plaintiff's rights to the profits, royalties and residuals realized by the district from the series.
(Merry, at 219.) Defendants moved for summary judgment and prevailed in federal court on the federal claims. (Id. at 220.) While Merry II was pending, plaintiff filed a third action in state court (Merry III) naming as defendants the district and certain of its administrative personnel and alleging substantially the same facts alleged in Merry II. (Id.) The third complaint sought rescission of the contract provision waiving royalties and residuals from the film series on grounds of fraud, undue influence and mistake of law, damages for infringement of common law copyright, an accounting and declaring relief. The district demurred to the second amended complaint filed in Merry III on two grounds: (1) The action was barred under the doctrine of res judicata by reason of the judgment in Merry II, and (2) failure to allege facts showing substantial compliance with the California Tort Claims Act. The trial court sustained the demurrer on res judicata grounds and entered an order dismissing the action with prejudice. [Footnote omitted.]
(Id.) On appeal, the court held that the plaintiff in Merry III was not barred from bringing forth state law claims “under the Gibbs criteria for the exercise of pendent jurisdiction it clearly appears that the Merry II court would have declined to adjudicate plaintiff's state claims, the[refore] Merry II judgment does not bar the present action.” (Id. at 225). The key distinction, however, is that Merry III involved claim preclusion and not issue preclusion. The Merry III defendants did not argue that the federal district court had made findings of fact that barred Plaintiff’s causes of action. Here, Defendants do not argue that the causes of action are barred due to res judicata (claim preclusion), they argue that the causes of action are barred due to issue preclusion.
As a second argument, Plaintiffs contend that the first and second causes of action do not rely on the findings of fact by the federal district court set forth in Defendants’ demurrer because the negligence per se and intentional infliction of emotional distress causes of action are not dependent upon those facts. Specifically, Plaintiffs argue that the district court did not make any factual findings as to whether Jamie Hein had a duty to contact Dr. Hageman pursuant to Division 31-125.222, which, Plaintiffs claim, is the central issue in the instant matter. (See Pl.’s RJN No. 1, Exhibit 1, MSJ, p. 17.) Plaintiffs argue that the state law claims rest on the “undisputed fact” that Defendants failed to make the inquires expressly required by the applicable regulations before commencing the removal proceedings.
With respect to Institution and Welfare Code ; 306, the federal district court found that the plain language of the statute did not require a medical diagnosis. (See MSJ opp. at 9.) The district court further found that “Plaintiffs have [not] demonstrated disputes of material fact about the ‘referral,’ the need for a ‘medical diagnosis,’ or that CIW ; 324.5 required DCFS to disclose the Cal-EMA Report (though possibly a DCFS policy did).” (Id. at 10.) Plaintiffs’ opposition argues that the claims before this Court are based on Defendants failure to follow internal policy. Since this issue was not decided by the federal court, Defendants have failed to show that issue preclusion applies as to this basis for imposing liability. Therefore, the causes of action are not barred by issue preclusion.
Whether Defendants are immune under state law/whether Plaintiffs have alleged that Defendants breached a mandatory duty for negligence per se
Defendants argue that they are entitled to immunity under Government Code ;; 815.2(b), 820.2, 820.21, 821.6, and 822.2 because the individual social workers were acting within the scope of their employment, and within the scope of the discretion vested in them. (See Demurrer at 10:10-11-28.) Section 822 provides, “A public employee acting in the scope of his employment is not liable for an injury caused by his misrepresentation, whether or not such misrepresentation be negligent or intentional, unless he is guilty of actual fraud, corruption or actual malice.” (Gov. Code, ; 822.2 [emphasis added].) “[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 [or her], whether or not such discretion be abused.” (Gov. Code, ; 820.2.) “Except as otherwise provided by statute, 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.” (Gov. Code, ; 815.2(b).) The County argues that it is entitled to the same immunities as it employees and in addition, they are entitled to immunity under Government Code ; 821.6. That section provides, “[a] public employee is not liable for injury caused by his instituting or prosecuting any judicial or administrative proceeding within the scope of his employment, even if he acts maliciously and without probable cause.” (Gov. Code, ; 821.6.)
Plaintiffs do not address the arguments made as to section 822, 820.2 or 815.2 in their opposition. Here, Plaintiffs allege that the individual defendants were acting within the scope of their employment. (See SAC ¶¶ 4 -10.) Plaintiffs also allege that various individual defendants falsified documents that resulted in the 4-month seizure of J.G. (See SAC ¶¶ 137-139.) Plaintiffs also allege that Defendants “knew their falsified evidence that J.G.’s fractures were caused by non-accidental trauma would cause and did cause J.G. to be seized and kept separated from his parents . . ..” (SAC ¶ 144.) Paragraph 36 of the State 2AC contains four alleged actions that Plaintiffs claim that Defendant social workers committed maliciously. Number three, the fabrication of child abuse allegations in 1500 petitions, appears to have no bearing on this particular case. Numbers one, two and four contain factual allegations that the federal district court already adjudicated. (See MSJ at 5 [J.G. pointed to father when asked “who gave him a boo boo” and so Brown concluded that J.G. was in danger], 9-10 [discussing that the alleged exculpatory evidence was not actually exculpatory], 22 [Plaintiffs did not create triable issue as to fabrication/perjury].) To the extent Plaintiffs attempt to hold Defendants liable for “falsifying physical abuse” the federal district court already found that Plaintiffs did not come forward with evidence of perjury or falsified evidence with respect to the initial seizure. (See MSJ at 21.) Therefore, as to malice, the alleged actions were adjudicated by the district court and Plaintiffs are precluded from relitigating them back in state court.
Defendants also argue that plaintiffs have not stated a claim because they have not alleged that Defendants violated a mandatory duty under Government Code section 815.6. “Where a public entity is under a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury, the public entity is liable for an injury of that kind proximately caused by its failure to discharge the duty unless the public entity establishes that it exercised reasonable diligence to discharge the duty.” (Gov. Code, ; 815.6.) “The term ‘enactment’ as used in Government Code section 815.6 means ‘a constitutional provision, statute, charter provision, ordinance or regulation.’ (Gov. Code, ; 810.6.) ‘This definition is intended to refer to all measures of a formal legislative or quasi-legislative nature.’ (Cal. Law Revision Com. com., 32 West's Ann. Gov. Code (1995 ed.) foll. ; 810.6, p. 155.) The term ‘regulation,’ as used in Government Code section 810.6 means ‘a rule, regulation, order or standard, having the force of law, adopted ... as a regulation by an agency of the state pursuant to the Administrative Procedure Act [Act].’ (Gov. Code, ; 811.6.)” (Wilson v. County of San Diego (2001) 91 Cal.App.4th 974, 982.)
Throughout the complaint, Plaintiffs allege that Defendants violated a mandatory duty from the California DSS Manual. (See e.g. SAC ¶¶ 130-136.) Defendants argue that the Manual’s guidelines cannot be used impose a mandatory duty. In opposition, Plaintiffs argue that Division 31 Regulation 125.222 and Regulation 31-135 are enactments that impose a mandatory duty, citing paragraphs 120, 129, 130, 13, 134-135 of the Manual. While Plaintiffs cite the Manual in their opposition, they do not provide a copy of the Manual. On its own motion, the Court takes judicial notice of the Manual accessible at https: www.cdss.ca.gov/ord/entres/getinfo/pdf/cws2.PDF. The Court notes that the Manual contains portions that identify when the handbook starts and stops, helpfully labelled “Handbook Starts Here” and “Handbook Ends Here.” In addition, the Manual states that it was effective on October 1, 2016 and the collateral contacts provision portion, which is relied upon by Plaintiffs, was only recently added (track changes are indicated on the side). The mandatory duty alleged by Plaintiffs, which is that Defendants did not “make necessary collateral contacts with each person having knowledge of the condition of each child that is the subject of an allegation” under 31-125.222, and 31-135, appear in the portion of the Manual after the statement “Handbook Ends Here.” (See Manual, pp. 60.2-61.1, 62.1 – 63, 63.2.) To the extent that Plaintiffs attempt to rely on the language of “collateral contacts,” Plaintiffs have not alleged that the language existed prior to October 1, 2016, or that it is contained within the handbook portion of the Manual.
In addition, the complaint does not allege that these “regulations” were passed pursuant to the Administrative Procedures Act. (See Gov. Code, ; 811.6; see also Wilson v. County of San Diego (2001) 91 Cal.App.4th 974, 982 [finding no mandatory duty as Plaintiff failed to allege and show that the “employee manual constitutes an administrative regulation within the meaning of the Act”.) As a result, Plaintiffs have failed to allege a breach of a mandatory duty.
This case was filed in 2017, and has had extensive discovery and motion practice – at least in federal court. The Court cannot see how Plaintiffs can amend the complaint to allege a breach of a required duty, and therefore, the demurrer to the negligence per se cause of action is sustained without leave to amend.
Intentional infliction of emotional distress
Defendants demur to the intentional infliction of emotional distress cause of action on the same grounds as the first cause of action. For the reasons set forth above, the Court finds that Plaintiffs have not alleged a mandatory duty, and therefore, demurrer is sustained without leave to amend.
Improper amendment as to the County of Los Angeles
The County argues that Plaintiffs acted improperly when they added the County of Los Angeles as a defendant because the Federal 2AC did not name the County as a defendant with respect to both causes of action. The County argues that the statute of limitations passed on January 5, 2019. Defendants further argue that they obtained a judgment on the merits.
As noted above, the original action was filed on December 19, 2017. The original complaint in this action, as well as the 1AC did not name the County of Los Angeles individually as a defendant for negligence per se or for intentional infliction of emotional distress. The Federal 2AC also did not name the County as an individual defendant. Plaintiffs argue that they are justified in adding the County of Los Angeles through their vicarious liability allegations. Plaintiffs further argue that they timely presented their claim to all Defendants and that Defendants rejected the claim on July 2017. (See SAC ¶11.) The Court of Appeal found that “[t]he six-month period within which to commence an action for damages for personal injuries against public employees begins to run once the six-month period for instituting an action against the employing public entity is triggered by rejection of a claim for damages against the employing public entity and unnamed public employees.” (Julian v. City of San Diego (1986) 183 Cal.App.3d 169, 171.) Like Julian, Plaintiffs received their rejection of a claim. Plaintiffs timely filed a suit against the individual employees but failed to file a suit against the County of Los Angeles on the two causes of action and as a result, the claims against the County of Los Angeles are untimely.
Therefore, the demurrer is sustained as to both causes of action without leave to amend with respect to the County of Los Angeles.
Motion to strike
Defendants argue that Plaintiffs did not obtain leave to amend the complaint. Defendants argue that Plaintiffs have improperly added the County of Los Angeles as a Defendant with respect to the two causes of action. The Court finds that the motion to strike is MOOT with respect to the County given the demurrer analysis above.
Defendants move to strike two items from the complaint. First, Defendants move to strike the label “second amended complaint” because there was already a second amended complaint in federal court. Defendants argue that this makes this pleading confusing. In opposition, Plaintiff argues that labeling this complaint as a second amended complaint is not improper because there is no “second amended complaint” in state court. To the extent there is any confusion, the Court believes that the parties and the Court can distinguish between the State 2AC’s label, and the Federal 2AC, which has been disposed of through summary adjudication. Therefore, the motion to strike is denied.
Defendants further argue that the damages sought in paragraph 4 of the prayer of relief are improper because the federal claims were dismissed and because Plaintiffs do not bring forth claims under the Unruh Civil Rights Act or the Americans with Disabilities Act. Since Plaintiffs bring forth common law claims and not claims under either of the mentioned statutes, Defendants’ motion to strike as to these items is granted.
County Defendants’ Special motion to strike (Anti-SLAPP)
A special motion to strike “may be filed within 60 days of the service of the complaint or, in the court's discretion, at any later time upon terms it deems proper. The motion shall be scheduled by the clerk of the court for a hearing not more than 30 days after the service of the motion unless the docket conditions of the court require a later hearing.” (Code Civ. Proc., ; 425.16(f).)
“A cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike” (Code Civ. Proc., ; 425.16(b)(1).) Section 425.16 defines an “act in furtherance of a person's right of petition or free speech under the United States or California Constitution in connection with a public issue” as
(1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law,
(2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law,
(3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest, or
(4) any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.
(Code Civ. Proc., ; 425.16(e)(1)-(4).)
Courts resolving an anti-SLAPP motion under Code of Civil Procedure section 425.16 must follow a two-step process. (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 733.) In the first step (“prong one”), the court determines whether the conduct underlying the plaintiff’s claim arises from the defendant’s constitutional rights of free speech or petition as defined by Civil Code section 425.16. (Baral v. Schnitt (2016) 1 Cal. 5th 376, 395.) This is a threshold issue. If the moving party fails to show that the conduct is constitutionally protected, then the court need not address the second prong. (Jarrow, supra 31 Cal.4th at 733.)
Under the second prong, the burden shifts to plaintiff to prove that he or she has a legally sufficient claim and to prove with admissible evidence a probability that the plaintiff will prevail. (E.g. Navellier v. Sletten (2002) 29 Cal.4th 82, 88.) To fulfill prong two, a plaintiff cannot rely on the allegations of the complaint, but must produce evidence that is admissible at trial. (HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204, 212.) If the plaintiff fails to do so, the motion to strike is granted and the prevailing defendant is entitled to recover his or her attorney fees and costs. (Argentieri v. Zuckerberg (2017) 8 Cal.App.5th 768, 780.)
“In making its determination, the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.” (Code Civ. Proc., ; 425.16(b)(2).)
Whether this motion is timely
Plaintiffs raise the issue of whether this Anti-SLAPP motion is timely. Plaintiffs argue that this motion is untimely because it was filed after the close of discovery. In reply, County Defendants argue that they were served in state court with the State 2AC for the first time in October 2019 and that Plaintiffs asserted their claims for negligence per se and intentional infliction of emotional distress for the first time against the County of Los Angeles in October 2019. They further argue that the Anti-SLAPP was filed within 60 days of service of these claims.
Defendants argue that they could not bring an Anti-SLAPP motion in federal court until the case was remanded. That is not the case. (See United States ex rel Newsham v. Lockheed Missiles & Space (9th Cir. 1999) 190 F.3d 963, 973 (upholding the application of California’s anti-SLAPP statue in federal courts, after determining that no conflict existed between the statute and the Federal Rules of Civil Procedure). The Ninth Circuit has continued to permit California’s anti-SLAPP statute to be applied in federal court for over twenty years, while continuing to debate the interplay between the use of a state’s substantive and procedural rules in federal court. (See e.g. Planned Parenthood Federation of America, Inc. v. Center for Medical Progress (9th Cir. 2018) 890 F.3d 828, amended (9th Cir. 2018) 897 F.3d 1224.
The County Defendants had an obligation to file their anti-SLAPP motion at the first available opportunity, which would have been in federal court. (See Newport Harbor Ventures LLC v. Morris Cerullo World Evangelism, (2018) 4 Cal. 5th 637. In Newport Harbor Ventures, the California Supreme Court held that an anti-SLAPP can be brought in response to an amended complaint only where the amended complaint adds new cause of action, or new allegations that make previously pleaded causes of action subject – for the first time – to an anti-SLAPP motion. (Id. at 645). Here, the Federal 2AC was filed on July 3, 2018. Plaintiffs asserted that the County was vicariously liable in the Federal 2AC in the first two causes of action for negligence and the intentional infliction of emotional distress. (Compare Fed. SAC ¶¶ 155, 161 with State SAC ¶¶ 145, 150.) Instead of filing an anti-SLAPP, on July 17, 2018, the County Defendants filed answers in federal court (See 3/18/2019 Remand order, at docket no. 48, pp. 8-9 of 20.), engaged in discovery, and succeeded on summary adjudication of the federal claims even though Defendants made arguments as to both federal and state law claims.
While the motion to strike the State 2AC filed in this court is technically timely as to the refiled 2AC, Defendants could have brought this motion earlier in federal court. Defendants admit that discovery was closed in federal court. The purpose of an anti-SLAPP motion is to provide “an efficient means of dispatching, early on in a lawsuit, a plaintiff's meritless claims, and thus encourages, to use the Legislature's words, “continued participation in matters of public significance.’ (; 425.16, subd. (a).)” (Paul for Council v. Hanyecz (2001) 85 Cal.App.4th 1356, 1364, disapproved by Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53 on other grounds].) The filing of an anti-SLAPP motion automatically stays discovery in a case to prevent parties from unnecessarily spending money on potentially frivolous litigation. Since Defendants could have filed this motion in federal court and instead opted to litigate the case on the merits in federal court, this motion is DENIED as untimely.