Kemper v.
Filed 4/22/13 Kemper v. County of San Diego CA4/1
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
JOHNNEISHA KEMPER,
Plaintiff and Appellant,
v.
COUNTY OF SAN DIEGO et al.,
Defendants and Respondents.
D059637
(Super. Ct. No. 37-2010-00094707-
CU-CR-CTL)
APPEAL from
a judgment of the Superior Court
of
County, Luis R. Vargas, Judge.
Affirmed in part, and reversed in part.
Johnneisha
Kemper brought a federal civil rights
action against San Diego County
(County) and the City of San Diego
(City), and several of their employees, alleging defendants violated her
in actions leading to the termination of her parental rights to her
daughter. (42 U.S.C. § 1983 (§ 1983).) The trial court sustained defendants'
demurrers without leave to amend.
We conclude
the court properly sustained the demurrer on Kemper's claims against the County
and its named employees. These claims
are barred because they constitute an improper collateral attack on the prior
judgment. However, we conclude the court
erred in sustaining the demurrer on Kemper's claims against the City and its
named employees. These claims are not
barred because they were not litigated in the earlier juvenile dependency
proceedings.
FACTUAL
AND PROCEDURAL BACKGROUND
A. Summary
of Kemper's Factual Allegations
Because we
are reviewing a demurrer, we must assume the truth of the operative complaint's
properly pleaded factual allegations and the facts implied from those
allegations. (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074,
1081.)
In May
2008, 16-year-old Kemper gave birth to a daughter. When the baby was about 11 days old, on May 24, 2008, several San
Diego police officers (defendant police officers
the baby from Kemper's care without a warrant.
At the time, the defendant police officers had "no reasonable or
articulable evidence to suggest the infant child was in immediate danger of
sustaining severe bodily injury, or that the infant had been abandoned by
[Kemper]." "[T]he infant was
in good health" and was not in "need [of] any medical
care." There was no evidence
suggesting "the child was in immediate danger of physical or sexual abuse,
nor was there any indication that the physical environment posed any threat to
the infant's health or safety."
Additionally,
when they removed the child, the defendant police officers "were fully
aware of where, and to whom, the infant belonged." It would have been "apparent to any
reasonable officer that [Kemper] was the infant's mother and that she had an
immediate right to custody and control of the infant. There was no reasonable or articulable
evidence to suggest that any other person was entitled to custody of the child
. . . , [or that] the infant had been abducted." Additionally, "there was no reasonable
or articulable evidence to suggest tha[t] any crime whatsoever had been
committed, or that there was any other legal justification for the removal of
[Kemper's] child from her care."
Four days
later, on May 28, several County social workers (social worker defendants
juvenile dependency petition under Welfare and Institutions Code
300, subdivision (g), alleging the infant had been abandoned by the mother and
that the mother's whereabouts were unknown and reasonable efforts to locate her
had been unsuccessful. The petition was
signed under penalty of perjury by the social worker defendants.
According
to Kemper, the social worker defendants' allegations set forth in the
dependency petition were untrue in that when they signed and filed the
petition, the social worker defendants had been in contact with Kemper multiple
times and knew her cellular phone number and had successfully contacted her at
this number. Additionally, the social
worker defendants knew where Kemper went to school. The social worker defendants "were fully
aware of where, and to whom, [Kemper's] infant belonged; and, they knew where
and how to get a hold of [Kemper]; and they knew that [Kemper] had absolutely
no intention of abandoning her infant child." Kemper claimed the social worker defendants'
alleged misrepresentations regarding her whereabouts "caused the continued
and unjustified detention of [her] newborn child."
Thereafter,
the social worker defendants filed multiple reports, including detention and
jurisdictional/disposition reports, allegedly "with the intention that
said reports be accepted into evidence and that the contents of those filings
be treated as true, when in fact the contents of those reports were
false." In each of these reports,
the social worker defendants "knowingly made material misstatements of
fact, suppressed exculpatory information from the court, fabricated evidence
and disclosed it to the court as if it were true, inserted half-truths and
omitted critical information that showed many of the purported failures or
deficiencies by [Kemper] were in fact the fault of the Social Worker
Defendants."
Kemper
alleged that: "Ultimately, due in
substantial part to the lies and half-truths and other omissions by Social
Worker Defendants [Kemper's] parental rights were terminated and she
permanently lost custody of her infant child."
B. Summary
of Court of Appeal Opinion
Although
neither party requested the trial court to consider our prior appellate
decision upholding the termination of Kemper's parental rights (
the unpublished opinion on our own motion because it is relevant and material
to the collateral estoppel and res judicata issues raised by the parties. (See Cal. Rules of Court, rule 8.1115(b);
Evid. Code, §§ 452, subd. (d), 459, subd. (a).)
The
following relevant background facts were set forth in our prior opinion. (N.F.,
that Kemper's infant child was at substantial risk of harm because she was left
without any support, and after conducting a search, the social workers did not
know her parents' whereabouts. At the
detention hearing, the trial court made a prima facie finding on the petition,
detained the child in out-of-home care, and ordered the social services agency
to "continue searching for the parents." (Ibid.) About one month later, on June 18, the court
found the section 300, subdivision (g) jurisdictional allegations to be true,
assumed jurisdiction over Kemper's child, removed her from parental custody,
placed her in foster care, and ordered reunification services. (N.F.,
supra.) Although she had notice,
Kemper did not timely appear at this hearing, but about one month later counsel
was appointed for her. (
At the six-month hearing, the court terminated reunification services
and set a selection and implementation hearing.
(Ibid.; see § 366.26.) Kemper filed a notice of intent to file a
writ petition challenging this order (see Cal. Rules of Court, rules 8.450, 8.452),
but after Kemper's counsel reviewed the record, counsel determined there were
no viable issues for review. (
filed section 388 modification petitions seeking to dismiss the dependency
petition based on Kemper's alleged improved circumstances and based on the
court's alleged prior error in not appointing a guardian ad litem. (Ibid.) The juvenile court agreed to consider the
motions, but ultimately declined to modify its prior orders. (Ibid.)
The juvenile court found that although a
guardian ad litem should have been appointed and this "error was not
harmless, . . . the requested modification was not in [the
child's] best interests because [Kemper] could not safely parent [her
child]." (Ibid.) The court thereafter
entered a final judgment terminating Kemper's rights. (Ibid.)
On appeal,
Kemper challenged the court's denial of her modification petitions. (N.F.,
supra, D055922.) We affirmed, concluding that although an
"[a]ppointment of a guardian ad litem may have made a difference in the
outcome of the jurisdiction and disposition hearings," the juvenile court
"acted well within its discretion by denying [Kemper's] request to dismiss
the dependency petition and return the case to 'square one,' or alternatively,
to place [the child] with her." (
We also rejected Kemper's argument that reversal was required because
her counsel was ineffective by failing to challenge the section 300,
subdivision (g) jurisdictional findings in the dependency proceedings and in a
writ petition to the Court of Appeal. We
specifically found the outcome would not have been different if counsel had
raised these issues. We explained:
"Regardless of counsel's alleged failings . . . , the Agency was justified
in filing a dependency petition, and the court reasonably assumed jurisdiction
of [Kemper's child]. [Kemper] left [her]
newborn . . . without provision for support, and chose her
relationship with father over her relationship with her child. . . . [Kemper's] ongoing irresponsible behavior and
lack of motivation to participate in services or establish a relationship [with
her child] prevented reunification. Once
her situation stabilized and she began to access services, [Kemper] was never
able to show she could properly parent [her child]. The remedy [Kemper] seeks—dismissing the
petition or placing [her child] with her under a voluntary services contract—is
not a viable option. [¶] Despite the fact that this case got off track
initially when [Kemper] had no representation, it was ultimately [Kemper's]
inability or unwillingness to reunify with [her child] that caused her to lose
her parental rights. [Kemper's child] is
now two years old and has never lived with [Kemper]. She is thriving in the home of maternal
relatives who want to adopt her. [The
child] deserves to have her custody status promptly resolved and her placement
made permanent and secure." (
C. Legal
Claims Alleged in Kemper's Complaint
Based on
the factual allegations of her complaint (which did not include many of the
facts set forth in N.F.), Kemper
alleged a section 1983 federal civil rights claim against the police officer
defendants, the social worker defendants, and the public entity
defendants.
As to the
police officer defendants, Kemper alleged they "were acting under color of
state law when they acted and/or conspired to remove Plaintiff's infant
daughter from her care without notice, proper reason, authority, or probable
cause, and with deliberate indifference to the rights of Plaintiff." She alleged that this conduct violated her
constitutional due process rights and her right to familial association under
the Fourteenth Amendment.
As to the
social worker defendants, Kemper alleged they were acting under color of state
law "when they filed papers with the Juvenile Dependency Court where such
papers were either signed under penalty of perjury and contained knowingly
false statements, and/or where such papers were known to be relied on by the
dependency court as evidence in the underlying action, and contained knowingly
false statements." Kemper alleged
the social worker defendants committed these acts "with deliberate
indifference" to her rights, and this wrongful conduct violated her
constitutional right to familial association and her due process right
"not to be subjected to false allegations by the government."
As to both
sets of individual defendants, Kemper alleged her rights "were so clearly
established that a reasonable agent faced with similar circumstances would have
known that their conduct was violative of Plaintiff's rights." Kemper sought compensatory damages (including
for "physical and/or mental anxiety and anguish"), punitive damages,
and attorney fees.
As to the
County and City entity defendants, Kemper alleged these entities maintained
policies that caused the constitutional violations, including policies of: (1) detaining/removing children from their
parents without adequate notice or an opportunity to be heard and beyond the
necessary scope; (2) allowing the filing of reports with false and fabricated
evidence; (3) acting with deliberate indifference in failing to provide proper
employee training; and (4) allowing the removal and detention of a child
without a warrant even if there are no exigent circumstances. Kemper alleged the defendant entities knew or
should have known the policies would cause injury to Kemper, and the policies
"were the moving force behind
the constitutional violations alleged."
D.
Defendants' Demurrers
Each of the
defendants demurred, arguing that California's collateral estoppel and res
judicata doctrines barred Kemper from pursuing her section 1983 claims, and
alternatively that the claims were barred by the United States Supreme Court
decision in Heck v. Humphrey (1994)
512 U.S. 477 (Heck).)
worker defendants were immune from civil liability arising from their
participation in the juvenile dependency process. Additionally, the County argued the claim against
it was barred because a prerequisite to its liability is a viable section 1983
claim against a County employee.
After
conducting a hearing, the court sustained each defendant's demurrer without
leave to amend. With respect to the
social worker and police officer defendants, the court found Kemper's claims
were barred by California's collateral estoppel doctrine and by the United
States Supreme Court's ruling in Heck,
supra, 512 U.S. 477. With respect to
the public entity defendants, the court found Kemper failed to state a cause of
action because this claim is dependent on a showing of individual liability
under section 1983.
Kemper
appeals.
DISCUSSION
I. Generally
Applicable Legal Principles
sufficiency of a plaintiff's complaint by raising questions of law. [Citation.]
When the trial court sustains a demurrer, we review the complaint de
novo to determine whether it contains sufficient facts to state a cause of
action. [Citation.] We accept as true all properly pleaded
material factual allegations of the complaint and other relevant matters that
are properly the subject of judicial notice, and we liberally construe all
factual allegations of the complaint with a view to substantial justice between
the parties. [Citation.]" (Beets
v. County of Los Angeles (2011) 200 Cal.App.4th 916, 922-923 (
We
affirm the judgment if any ground offered in support of the demurrer
was well taken. (Walgreen Co. v. City
and County of San Francisco (2010) 185 Cal.App.4th 424, 433.) We review the court's ruling and not its
rationale. (Ibid.) In evaluating whether
the plaintiff adequately stated a section 1983 claim, "dismissal is proper
only where 'it appears beyond doubt that the plaintiff can prove no set of
facts in support of the claims that would entitle [the plaintiff] to
relief.' [Citations.]" (Arce
v. Childrens Hospital Los Angeles
(2012) 211 Cal.App.4th 1455, 1471 (Arce).)
"Section
1983 creates a private right of action against individuals who, acting under
color of state law, violate federal constitutional or
v. Abbey (9th Cir. 2001) 263 F.3d 1070, 1074 (Devereaux); see Arce, supra,
211 Cal.App.4th at p. 1473.) Section
1983 does not create substantive rights; it provides remedies for violations of
rights found elsewhere in the federal Constitution. (Manta
Management Corp. v. City of San Bernardino (2008) 43 Cal.4th 400, 406;
188 Cal.App.3d 1267, 1287.)
A municipal
entity (such as the County or City) can be held liable under section 1983
"where . . . the action that is alleged to be
unconstitutional implements or executes a policy statement, ordinance,
regulation, or decision officially adopted by that body's officers." (Monell
v. New York City Dept. of Social Services (1978) 436 U.S. 658, 690;
Bernardino, supra, 43 Cal.4th at p. 406.) A finding of the individual
employee's section 1983 liability is a necessary predicate to the government
entity's liability. (
U.S. 796, 799; see Hinton v. City of
Elwood (10th Cir. 1993) 997 F.2d 774, 782 ["A municipality may not be
held liable where there was no underlying constitutional violation by any of
its officers"].)
Under these
principles, we examine Kemper's section 1983 claim against each set of
defendants.
II. Kemper's
Claim Against Social Worker Defendants
A. Overview
Kemper's
section 1983 claim against the social worker defendants is based on her
allegations that the social workers filed court documents falsely stating that
Kemper had abandoned her baby and they did not know Kemper's whereabouts. Kemper alleged the social worker defendants
in fact had actual knowledge that she had not abandoned her baby and they knew
where she was and how to contact her.
She alleged the juvenile court relied on these misrepresentations to reach
its jurisdictional and dispositional findings, and that "due in
substantial part to the lies and half-truths and other omissions by Social
Worker Defendants[,] Plaintiff's parental rights were [ultimately] terminated
and she permanently lost custody of her infant child." Although these allegations challenge the
propriety of the parental termination disposition, Kemper maintains that she is
not seeking to overturn the dependency orders or judgment. She states that she instead is seeking only
money damages to compensate her for her physical and emotional injuries arising
from the social workers' alleged wrongful actions, including the distress
resulting from the loss of her child.
A social
worker may be held liable under section 1983 based on proof he or she
deliberately made false statements in petitions filed with the juvenile
dependency courts. (See
Services (9th Cir. 2010) 627 F.3d 1101, 1108, 1110-1111 (
"Deliberately fabricating evidence in civil child abuse proceedings
violates the Due Process clause of the Fourteenth Amendment . . . ." (Costanich,
supra, at p. 1108; see Beltran v.
Santa Clara County (9th Cir. 2008) 514 F.3d 906, 908 [social workers
"are not entitled to absolute immunity from claims that they fabricated
evidence during an investigation or made false statements in a dependency
petition"].) This is particularly
true when the conduct infringes on the parent-child relationship. (See Stanley
v. Illinois (1972) 405 U.S. 645, 651.)
However,
the issue before us is not whether Kemper's allegations satisfy her burden to
plead the elements of a section 1983 claim.
The social worker defendants demurred to the complaint on the grounds
that even assuming Kemper's claims
potentially state a constitutional violation, they are barred because the
lawsuit constitutes an improper collateral attack on the prior judgment and/or
the social workers are immune from the claims.
As explained below, collateral estoppel principles preclude Kemper from
recovering on her section 1983 claim against the social worker defendants
because the claim is predicated on the same factual claims that were litigated
and decided adversely to her in the prior juvenile dependency proceedings. Based on this conclusion we do not reach the
social worker defendants' alternate contentions that the judgment may be
affirmed under the related Heck rule
(Heck, supra, 512 U.S. 477) and/or
that the social worker defendants are entitled to qualified immunity under the
alleged facts.
B. Collateral
Estoppel
Res
judicata and collateral estoppel doctrines apply to section 1983 actions. (Allen
v. McCurry (1980) 449 U.S. 90, 94.)
State law governs the application of these doctrines in determining the
viability of a federal civil rights claim.
(Ayers v. City of Richmond (9th
Cir. 1990) 895 F.2d 1267, 1270; see Marrese
v. American Academy of Orthopaedic Surgeons (1985) 470 U.S. 373, 380.)
Under
California law, the res judicata doctrine has two conceptual aspects. The first, known as claim preclusion,
"prevents relitigation of the same
cause of action in a second suit between the same parties or parties in privity
with them." (Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 896, italics
added.) The social worker defendants did
not rely on this theory in moving for the demurrer. Instead, they relied on the second ground for
res judicata, commonly referred to as collateral
estoppel or issue preclusion, which precludes the parties from
relitigating an issue even if the prior and current causes of action are
different. (Ibid., Vandenberg v. Superior
Court (1999) 21 Cal.4th 815, 828.)
Under
California law, the collateral estoppel doctrine bars relitigation of an issue
decided in a previous proceeding when three elements are established: "(1) the issue necessarily decided in
the previous suit is identical to the issue sought to be relitigated; (2) there
was a final judgment on the merits of the previous suit; and (3) the party
against whom the plea is asserted was a party, or in privity with a party, to
the previous suit." (Producers Dairy Delivery Co. v. Sentry Ins.
Co. (1986) 41 Cal.3d 903, 910; see Lucido
v. Superior Court (1990) 51 Cal.3d 335, 341; In re Joshua J. (1995) 39 Cal.App.4th 984, 993.) The doctrine "is grounded on the premise
that 'once an issue has been resolved in a prior proceeding, there is no
further factfinding function to be performed.' " (Murray
v. Alaska Airlines, Inc. (2010) 50 Cal.4th 860, 864.)
Each of
these elements was satisfied in this case.
First,
there was a final judgment on the merits in the matter terminating Kemper's
parental rights. As this court has
found, the determination of an issue by final judgment in a juvenile dependency
proceeding is conclusive upon the parties or their privies in a subsequent
suit. (In re Joshua J., supra,
39 Cal.App.4th at p. 993.) Kemper argues
that a dependency court judgment cannot be considered final for purposes of
collateral estoppel because juvenile court orders are generally subject to
modification. (See § 388;
Cal.App.4th 872.) However, a juvenile
court generally has no authority to continue to modify its orders
terminated. Except for certain
exceptions not applicable here, once a court has entered a final judgment
terminating parental rights and the judgment is affirmed on appeal, a juvenile
court has no jurisdiction to modify this determination with respect to the
parent. (§ 366.26, subd. (i)(1).)
Second,
Kemper was a party in the dependency proceeding. Although the focus of a dependency proceeding
is on the child, a parent served with a notice of the proceeding has the status
of a party in the juvenile dependency proceeding. (In re
I.A. (2011) 201 Cal.App.4th 1484, 1491.)
"[T]he court exercises personal
jurisdiction over the parents once proper notice has been given" and
has the authority to enter binding orders adjudicating the parents' rights to,
and relationship with, the child. (
A parent's status as a party permits the parent to assert and protect
her own constitutional interest in the companionship, care, custody and
management of her child. (
403, 412.)
Third, the
identical issue was litigated in the first proceeding. "For purposes of collateral estoppel, an
issue was actually litigated in a prior proceeding if it was properly raised,
submitted for determination, and determined in that proceeding. [Citation.]
. . . [Citations.] 'The "identical issue" requirement
addresses whether "identical factual allegations" are at stake in the
two proceedings, not whether the ultimate issues or dispositions are the
same. [Citation.]' " (Hernandez
v. City of Pomona (2009) 46 Cal.4th 501, 512-513.) Moreover, an issue raised and decided in a prior proceeding triggers the
collateral estoppel bar even if some factual matters or legal theories that
could have been presented with respect to that
issue were not presented. (Murphy v.
Murphy (2008) 164 Cal.App.4th 376, 401-402; see Clark v. Lesher
(1956) 46 Cal.2d 874, 880-881.) However,
a prior decision does not establish collateral estoppel on issues that could
have been raised and decided in the prior proceeding but were not. (Murphy, supra, at p. 401.)
In her
section 1983 complaint, Kemper alleges the social worker defendants violated
her constitutional rights by deliberately and intentionally making false
assertions in their dependency court petitions and that based on those
misrepresentations the court took jurisdiction over the matter and then
continued the out-of-home custody of her daughter, which led to the ultimate
termination of her parental rights.
However, these issues—whether the social worker defendants made misrepresentations
and whether those misrepresentations caused the termination of her rights—were
litigated and decided adversely to Kemper in the juvenile dependency
proceeding.
By assuming
jurisdiction over Kemper's child and denying her modification petitions, the
juvenile court found the social worker allegations to be true. Although Kemper was not present at the
initial hearings, during the later proceedings Kemper had the full opportunity
to challenge the truthfulness of the social worker assertions and present
evidence that she had not in fact abandoned her baby and/or that she had
provided for the baby's support. Within
one month after the court assumed jurisdiction, Kemper was represented by
counsel and had numerous opportunities to raise the issue in the dependency
proceeding, including in a petition for modification or a writ petition to this
court. However, Kemper's counsel—after
reviewing the record—made a decision not to challenge the court's earlier
findings by a writ petition. Moreover,
as stated in our prior opinion, Kemper did specifically later raise these
challenges in her section 388 modification petitions. (N.F.,
supra, D055922.) In reviewing the
court's denial of the petitions and Kemper's arguments that she was denied the
effective assistance of counsel, we specifically found that the social services
agency was "justified in filing a dependency petition" and the
juvenile court had a reasonable basis to assume jurisdiction over the child and
maintain that jurisdiction based on Kemper's conduct. (Ibid.) On this undisputed record, Kemper had the
full opportunity, and did, raise the issue of the social workers' alleged
misrepresentations in the prior proceeding, and those claims were litigated and
decided against her. As a result, under
collateral estoppel principles, Kemper is precluded from challenging the
court's findings in a later action.
Kemper
argues that as "
workers' misrepresentations were "not litigated and decided in the
juvenile dependency case because . . . the only issue before that court was
Kemper's child's best interests."
(Italics added.) This assertion
is not legally correct. At the
jurisdictional hearing (where the court considered the social worker reports
regarding Kemper's whereabouts and conduct), the applicable standard was
whether the child came within one of section 300's statutory categories, and
not the "best interests" of the child. (See § 355, subd. (a); Cal. Rules of Court, rule
5.684(f).) Even if a court may believe a
child's best interests would be served by dependency court jurisdiction, a
court does not have the authority to assume jurisdiction unless it finds true
the allegations that the child fits into one of section 300's statutory
categories. The issue common to each of
these categories is whether the circumstances at the time of the hearing show
the child is subject to a statutorily-defined risk of future harm. (See In
re A.S. (2011) 202 Cal.App.4th 237, 243-244; In re J.N. (2010) 181 Cal.App.4th 1010, 1022.)
In this
case, the juvenile court found true the allegations of the jurisdictional
petition under section 300, subdivision (g) that Kemper's child was at
substantial risk of harm because she was left without any support and the
whereabouts of her parents were unknown, and this court made a specific finding
that "when these proceedings were initiated, [the social services agency]
was justified in filing a dependency petition, and the court reasonably assumed
jurisdiction of [Kemper's child]."
(N.F., supra, D055922.) We made this finding after reviewing the
factual record that included Kemper's arguments challenging the truth of the
jurisdictional petition (via Kemper's later section 388 petition). The dependency court's findings, affirmed on
appeal after Kemper (who was represented by counsel) had the full opportunity
to challenge the factual finding through section 388 modification petitions,
precludes Kemper from relitigating these same issues in her subsequent federal
civil rights lawsuit.
Kemper
contends that the issues are not identical because the issue here is whether
the social workers deliberately
fabricated or concealed evidence from the court, whereas the issue in the
juvenile dependency proceedings was the truth of the petitions regardless
whether the social workers engaged in intentional misconduct. However, based on our conclusion that the
dependency court found that the allegations in the petitions were true, it
necessarily follows that the court found that the social workers did not make
false statements, intentionally or otherwise.
The critical point is that Kemper's section 1983 claim is based on her
allegations that the social workers made factual misrepresentations and these
misrepresentations caused the termination of her parental rights, and these
issues were resolved against her in the juvenile
dependency proceedings.
In this
regard, this case is distinguishable from Costanich,
supra, 627 F.3d 1101, relied upon by Kemper. In that case, the hearing officer had found
the social worker reports contained statements that were untrue. (Id. at
p. 1106.) In the later section 1983
action, the federal court found this factual finding did not preclude the
social worker, under the collateral estoppel doctrine, from later arguing she
did not intentionally make any false
statements in her reports and therefore there was no section 1983
liability. (Id. at p. 1108, fn. 10.)
Because the relevant section 1983 issue in Costanich was not identical to
the issue resolved in the earlier proceedings, the collateral estoppel doctrine
did not bar the litigation of the issue.
Here, the relevant section 1983 issues in this case—whether the social
workers made false statements in their petitions and these statements caused
the termination of her rights—were resolved against Kemper in the juvenile
dependency proceedings, and therefore the collateral estoppel doctrine does bar
the relitigation of these same issues.
Kemper
alternatively contends the collateral estoppel
bar does not apply because she has alleged in her complaint that the social
worker defendants intentionally omitted material information in their juvenile
court petitions and made statements in the dependency proceeding that
constituted "perjury" and were deliberately false. However, it has long been established that
California collateral estoppel law bars the relitigation of an issue even if
the opposing party in the prior action committed fraud by suppressing relevant
evidence or affirmatively presenting false evidence. (See Cedars-Sinai
Medical Center v. Superior Court (1998) 18 Cal.4th 1, 10 (
Cal. 2010) 2010 WL 2077171, p. *3.)
Kemper
argues that Cedars-Sinai is
inapplicable here because its specific holding concerned the question of
whether a state law tort remedy existed for spoliation of evidence. (See Cedars-Sinai,
supra, 18 Cal.4th at pp. 4, 17-18.)
However, Cedars-Sinai is
relevant because it emphatically reaffirmed the long line of California
judicial decisions holding that "under the doctrines of res judicata and
collateral estoppel, a judgment may not be collaterally attacked on the ground
that evidence was falsified or destroyed."
(Id. at p. 10.) Quoting from its decision filed more than 100
years earlier, the Cedars-Sinai court
made clear that California law forbids a collateral attack on a judgment based
on a claim the evidence was falsified, concealed, or suppressed: " '[W]hen [the aggrieved party] has
a trial, he must be prepared to meet and expose perjury then and there . . .
. The trial is his opportunity for
making the truth appear. If,
unfortunately, he fails, being overborne by perjured testimony, and if he
likewise fails to show the injustice that has been done him on motion for a new
trial, and the judgment is affirmed on appeal, he is without
remedy.' " (
133-134.)
These
principles apply to juvenile court dependency proceedings. At these proceedings, parents are provided
strong due process safeguards and protections including a right to
court-appointed counsel if he or she cannot afford one (§ 317) and the right to notice and an
opportunity to be heard before a court can take any action (absent an emergency). (See In
re Josiah S., supra, 102 Cal.App.4th at p. 412.) Contrary to Kemper's
assertions, parents and their counsel have the full opportunity and incentive
to litigate all issues concerning allegations made by social workers in
juvenile dependency proceedings. Parents
are provided full notice of, and juvenile dependency attorneys understand, the
potentially severe consequences to the parent-child relationship if parents do
not fully assert their rights and challenge governmental claims that they
believe to be false.
We reject
Kemper's additional argument that the social worker defendants did not meet
their burden to show the collateral estoppel bar because they did not request
the court to take judicial notice of the record in the juvenile court
proceedings. Kemper argues that in
evaluating whether issues were "actually litigated" for purposes of a
collateral estoppel defense, courts generally must "look carefully at the
entire record from the prior proceeding, including the pleadings, the evidence,
the jury instructions, and any special jury findings or verdicts." (Hernandez
v. City of Pomona, supra, 46 Cal.4th at p. 511; see also
Companies (1998) 64 Cal.App.4th 1306, 1314.) We agree with this principle, but it is
inapplicable here.
In this
case, the issue previously litigated did not occur at a jury trial where the
identity and scope of the particular issues litigated depends on the specific
factual record. Instead the issues were
litigated at dependency court hearings where certain specific findings must be
made before a court may assume jurisdiction over the child and before a court
may remove the child from the parent.
Based on Kemper's allegations, the applicable law, and on specific
conclusions reached in our prior appellate opinion, we are satisfied that the
issue of the truth of the social workers' assertions was raised, submitted for
decision, and decided against Kemper at the jurisdictional and dispositional
hearings, as well as the proceedings on Kemper's modification petitions. Because Kemper alleges that the social worker
defendants falsely alleged in the jurisdictional petition that she had
abandoned her child and that the court assumed jurisdiction based (at least in
part) on that false allegation, the inescapable conclusion is that the court
found the social worker allegations to be true and thus the issue of the
falsity of the representations was decided against Kemper. This factual conclusion precludes Kemper from
relitigating the issue in her section 1983 damages action.
In this
regard, plaintiff's reliance on Beets,
supra, 200 Cal.App.4th 916 is misplaced.
In Beets, the court found the
identical-issue element of the collateral estoppel defense was satisfied based on the allegations of the current complaint and
the law showing that the jury in the first trial had to make certain findings
in order to reach its conclusions. (
element was not satisfied because the party against whom the collateral
estoppel defense was asserted was not a party in the first proceeding and there
was an incomplete record to show that the interests of the party sought to be
estopped were adequately represented in the first trial. (Id.
at pp. 927-928.)
With
respect to the identical-issue element, Beets
is similar to this case because we can glean from the allegations of the
current complaint, our prior opinion affirming the dependency judgment, and the
applicable law that the identical issue was decided adversely to the plaintiff
in the first proceeding. However, this
case is different from Beets because
Kemper was a party in both proceedings; thus there is no need to examine the
record to determine whether Kemper's interests were adequately protected by the
litigating party.
Kemper also
argues that collateral estoppel does not apply because a "section 1983
claim could never be litigated in [the dependency] forum because the [juvenile
court] lacks jurisdiction over such claims . . . ." This argument reflects a misunderstanding of
the collateral estoppel (issue-preclusion) doctrine. The doctrine does not require that the cause
of action be the same or that the party could have obtained the same relief
sought in the second action. Instead,
" '[t]he "identical issue" requirement addresses whether
"identical factual allegations" are at stake in the two proceedings,
not whether the ultimate issues or dispositions are the same.' " (Hernandez
v. City of Pomona, supra, 46 Cal.4th at p. 512.) Moreover, collateral estoppel applies if the
issue was raised, submitted for determination, and decided in the prior
proceeding, even if "some factual matters or legal theories that could
have been presented with respect to that issue were not presented." (Bridgeford
v. Pacific Health Corp. (2012) 202 Cal.App.4th 1034, 1042.)
Kemper's
reliance on Government Code section 820.21 is also unhelpful because this
statute does not concern the application of collateral estoppel. The code section provides that juvenile court
social workers are not immune from claims based on "[p]erjury" or
"[f]abrication of evidence."
(Gov. Code, § 820.21, subd. (a)(1), (2).) Even assuming there is no applicable immunity
for the social worker defendants, Kemper's claim must be dismissed if it is
barred by California's collateral estoppel doctrine.
III. Kemper's
Claim Against Police Officer Defendants
Kemper
brought her section 1983 claim against the police officer defendants based
solely on the officers' removing her infant child from her custody without
prior judicial authorization.
Under the
Fourth and Fourteenth Amendments of
the United States Constitution, government officials are prohibited from
removing children from their parents' custody without a warrant or other
judicial preauthorization unless the official has " 'reasonable cause to
believe that the child is likely to experience serious bodily harm in the time
that would be required to obtain a warrant.' " (Arce,
supra, 211 Cal.App.4th at pp. 1473-1474.)
Officials violate the Fourteenth Amendment "if they remove a child
from the home absent 'information at the time of the seizure that establishes
"reasonable cause to believe that the child is in imminent danger of
serious bodily injury and that the scope of the intrusion is reasonably
necessary to avert that specific injury." ' " (Rogers
v. County of San Joaquin (9th Cir. 2007) 487 F.3d 1288, 1294.)
These
rights are based on the settled principles that " ' "[p]arents and
children have a well-elaborated constitutional
right to live together
without governmental interference" ' " and that
" ' "parents will not be separated from their children
without due process of law except in emergencies."
[Citation.]' " (
1473.) This " 'right to family
association' " (ibid.)
requires "[g]overnment officials . . . to obtain prior judicial
authorization before intruding on a parent's custody of her child unless they
possess information at the time of the seizure that establishes 'reasonable
cause to believe that the child is in imminent danger of serious bodily injury
and that the scope of the intrusion is reasonably necessary to avert that
specific injury.' [Citation.]" (Mabe
v. San Bernardino County Department of Public Social Services (9th Cir.
2001) 237 F.3d 1101, 1106 (Mabe).) Officials " 'cannot seize children
suspected of being abused or neglected unless reasonable avenues of
investigation are first pursued, particularly where it is not clear that a
crime has been—or will be—committed.' " (Arce,
supra, 211 Cal.App.4th at p. 1474.)
Kemper
alleged that the police officer defendants "without cause, a warrant, a
court order, or exigent circumstances seized, detained and removed [Kemper's]
infant child from her care" and that the police officers had no
information at that time to suggest the child had been abandoned, was not being
properly cared for, was in immediate danger of sustaining severe bodily injury,
or was in need of immediate medical
attention.
The police
officer defendants do not challenge that these allegations, if proved, support a cause of action that they violated
Kemper's constitutional rights to family association and due process. However, they argue the court properly
sustained the demurrer without leave to amend because the claim is barred
by: (1) collateral estoppel principles;
(2) the United States Supreme Court's Heck
decision; and (3) immunity rules. Each
of these arguments is without merit.
First,
unlike the social worker defendants, the police officer defendants did not meet
their burden to show Kemper's factual claim alleged in the section 1983 action
was necessarily litigated in the juvenile dependency proceedings and/or that
the issues litigated were identical.
Kemper's section 1983 claim against the police officer defendants is
based on her assertion that at the time
of the seizure these defendants did not have reasonable cause to believe a
sufficient exigency existed to support the taking of the child without a
warrant or prior judicial authorization.
The police officer defendants did not request the court to take judicial
notice of the underlying records, and thus there is no basis upon which we can
find the issue was litigated in the proceeding.
Moreover,
we cannot infer that the issue was litigated because the standards for removal
of a child by a police officer without a warrant and without judicial
authorization are different from the standards governing the court's
determination at the detention hearing or any other later dependency
proceeding. Although a detention hearing
was held shortly after the officers seized Kemper's baby, the court at a
detention hearing does not necessarily rule on the issue whether the police
officers properly detained the child without prior judicial authorization. Section 315 provides: "If a minor has been taken into custody
under this article and not released to a parent or guardian, the juvenile court
shall hold a [detention] hearing . . . to determine whether the minor shall be
(b).) Because the issue at a detention
hearing concerns the risk to the child in the future, the issue whether the
police officers had the right to remove
the child from parental custody without a warrant and without prior judicial
authorization is not necessarily litigated.
(See Mabe, supra, 237 F.3d at
p. 1110 ["[t]he [later] juvenile court's findings are not relevant to
whether a sufficient exigency existed at the time of the removal to justify the
warrantless action because such an inquiry is to be based on the information
that [the officer] had at the time"];
Anderson-Francois v. County of Sonoma (N.D.Cal. 2009) 2009 WL 1458240, p. *6 [rejecting argument that a claim
challenging the initial warrantless removal of a child was barred by findings
during later juvenile dependency proceedings], aff'd (9th Cir. 2011) 415
Fed.Appx. 6.)
The police
officer defendants alternatively argue that Kemper's claim is barred by the
United States Supreme Court's Heck
decision. (Heck, supra, 512 U.S. 477.) In Heck,
the court held that "when a state prisoner seeks damages in a [section]
1983 suit, the district court must consider whether a judgment in favor of the
plaintiff would necessarily imply the invalidity of his conviction or sentence;
if it would, the complaint must be dismissed unless the plaintiff can
demonstrate that the conviction or sentence has already been
invalidated." (Id. at p. 487; see Yount v.
City of Sacramento (2008) 43 Cal.4th 885, 893-895; see also
F.3d 697, 703.)
The
concern that state prisoners should not be permitted to challenge alleged
of state officials through civil lawsuits and thus avoid the stricter
exhaustion requirements of the parallel federal habeas corpus remedy. (Heck, supra,
512 U.S. at pp. 480-489; see Huftile v.
Miccio-Fonseca (9th Cir. 2005) 410 F.3d 1136, 1138-1141 ["Heck's favorable
termination rule was intended to prevent a person in custody from using
§ 1983 to circumvent the more stringent requirements for habeas
corpus"]; see also Beets, supra,
200 Cal.App.4th at p. 924.) Based on
this rationale and a later concurring opinion by Justice Souter (see
20-21), some federal courts have interpreted Heck as applying only when the section 1983 plaintiff is still in
custody and has a habeas remedy. (See
F.3d 872, 876-877.) Moreover, one
federal district court in an unpublished decision recently held that
1983 claim by a parent challenging final dependency court determinations. (Anderson
v. District Attorney Office (S.D.Cal. 2011) 2011 WL 6013274, p. *5.) However, the courts have not reached
consistent determinations on the issues and the reach of Heck remains "an open question." (Cole v. Doe 1 Thru 2 Officers of the City
of Emeryville Police Dept. (N.D.Cal. 2005) 387 F.Supp.2d 1084, 1092.)
In this
case, we need not determine Heck's precise
scope as it applies to juvenile dependency proceedings because its holding does
not preclude Kemper's claim against the police officer defendants even if the
decision or an analogous principle applied.
The Heck court expressly
recognized that its rule barring a section 1983 action challenging an earlier
judgment is inapplicable if "the plaintiff's [section 1983] action, even
if successful, will not demonstrate
the invalidity of any outstanding . . . judgment against the plaintiff
2005) 409 F.3d 426, 427 [Heck's
"application is limited to suits that, if successful, would
plaintiff's conviction or sentence . . ."], italics added.) "Heck
limits a narrow class of civil rights
actions when allowing the action to proceed would necessarily challenge the legitimacy of the undisturbed
conviction." (Truong v. Orange County Sheriff's Dept. (2005) 129 Cal.App.4th
1423, 1429, italics added.)
Here, even
assuming Kemper is successful in showing that the police officer defendants had
no reasonable basis for removing her child without obtaining a warrant, that
conclusion would not imply the invalidity of the underlying dependency court
orders or judgment terminating her rights.
In asserting that the officers committed wrongful acts by detaining her
child without a warrant, Kemper seeks damages for this intrusion. Even if the
police officers erred by failing to obtain a warrant before detaining the
child, this finding does not necessarily affect the validity of the juvenile
court's later orders that further detention
was necessary because of a risk of harm to the child. Because Kemper's claims against the police
officer defendants concern only the officers' initial seizure of the child
without a warrant, the claim does not necessarily challenge the validity of the
subsequent juvenile court orders and judgment.
Thus, even assuming the doctrine applies, Heck is factually inapplicable based on the allegations of Kemper's
complaint.
We also
reject the police officer defendants' contention that the judgment may be
affirmed on the basis of qualified immunity.
First, they forfeited this contention by failing to raise it as a ground
for their demurrer in the proceedings below.
Second, the argument fails on its merits because Kemper has pled
sufficient facts showing the police officers are not entitled to a qualified
immunity defense.
Under
"qualified immunity,"
which "shields [them] from liability for civil damages if (1) the law
governing the official's conduct was clearly established; and (2) under that
law, the official objectively could have believed that her conduct was
lawful." (Mabe, supra, 237 F.3d at p. 1106.)
The police
officer defendants do not challenge that the "clearly established"
requirement is satisfied here. We
agree. At the time the police officer
defendants removed Kemper's child from her custody without a warrant, it had
been clearly established that a parent could not be summarily deprived of her
child's custody except when the child is in imminent danger of serious bodily
injury. (Mabe, supra, 237 F.3d at
pp. 1107-1108; accord, Ram v. Rubin
(9th Cir. 1997) 118 F.3d 1306, 1310.)
But the
police officer defendants argue they had "reasonable cause" to
believe Kemper's infant daughter was in imminent danger to necessitate a
warrantless seizure. In asserting this
argument, defendants ignore that we are reviewing the case at the pleading stage. Even assuming the factual record ultimately
supports defendants' arguments that they had reasonable cause to believe
exigent circumstances existed in the situation, the issue before us is whether
the court properly sustained the demurrer, assuming all allegations of the
complaint to be true.
the police officer defendants had no reasonable cause to believe Kemper's child
was in imminent danger of serious bodily injury and a delay to obtain a warrant
would not have placed the child in any danger.
Assuming these facts to be true, defendants would not be entitled to
qualified immunity.
Generally
"determining whether an official had 'reasonable cause to believe exigent
circumstances existed in a given situation . . . [is a]
"question[ ] of fact to be determined by a jury." [Citation.]'
[Citations.] . . . '[Factual
questions] may be resolved [at the pleadings stage] only when there is only one
legitimate inference to be drawn from the allegations of the complaint.' [Citations.]" (Arce,
supra, 211 Cal.App.4th at p. 1475; see Mabe,
supra, 237 F.3d at p. 1108; TracFone
Wireless, Inc. v. County of Los Angeles (2008) 163 Cal.App.4th 1359, 1368.)
IV. Kemper's
Claim Against Public Entity Defendants
A
municipality (including a city or county) can be held liable for federal civil
rights violations if its policy or custom motivated the commission of a
constitutional violation. (See
Services, supra, 436 U.S. at pp. 690-691.)
However, a prerequisite to this liability is a successful claim against
the public entity's employee for violating the plaintiff's constitutional
right. (See City of Los Angeles v. Heller, supra, 475 U.S. at p. 799;
1994) 25 F.3d 804, 808-809.)
The County
demurred to the complaint based on its argument that its employees were not
liable under section 1983. The court
properly sustained the County's demurrer because we have found the claims
against the named County employees (the social worker defendants) are barred by
the collateral estoppel doctrine.
However, we cannot uphold the demurrer against the City on this same
basis because we are reversing the dismissal of Kemper's claims against the
City's employees. The City does not
suggest any other basis for affirming the demurrer on Kemper's claims against
it. We thus reverse the judgment with
respect to Kemper's claims against the City.
DISPOSITION
Judgment against the County and the social worker
defendants is affirmed. Judgment against
the City and the police officer defendants is reversed. The parties to bear their own costs on
appeal.
HALLER, J.
WE CONCUR:
BENKE, Acting P. J.
AARON, J.
name="_ftn1" title="">[1]
These officers are: Sergeant Brent Williams, Sergeant Linda
Griffin, and Lieutenant Natalie Stone.
name="_ftn2" title="">[2]
The social worker defendants
are: Mark Hood, Mitsuru Ramirez, Tanisha
Cowan, Gigi Burns, and Connie Bryan.
