Wu v.
Angeles
Filed 6/25/12 Wu v. County of Los Angeles CA2/7
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
SEVEN
FELIX WU,
Plaintiff and Appellant,
v.
COUNTY OF LOS ANGELES et al.,
Defendants and Respondents.
B235286
(Los Angeles
County
Super. Ct.
No. BC422949)
APPEAL from
a judgment of the Superior Court
of
County, Amy Hogue, Judge.
Affirmed.
Felix Wu,
in pro. per., for Plaintiff and Appellant.
Houle &
Houle, Gregory Houle and Richard Houle, for Defendants and Respondents County
of Los Angeles, Ronald Darlington, Rosa Tang and Latoya Anthony.
______________________________
In 2007 the
Family Services (Department) detained Felix Wu’s teenage daughters, Tiffany
and Chelsea, after receiving school referrals alleging Wu had physically and
emotionally abused the girls. The
juvenile court sustained the petition filed by the Department under Welfare and
Institutions Code section 300, subdivisions (b) and (c), and the court’s
jurisdictional and disposition orders were affirmed on appeal.
of Los Angeles and social workers
Ronald Darlington, Rosa Tang and Latoya Anthony (the County defendants),
alleging tort and civil rights
claims. Judgment was entered against Wu
after the trial court granted the County defendants’ motion for nonsuit. We affirm.
factual and procedural background
1.
The Juvenile Court Proceedings
The Department received a referral from Tiffany
and Chelsea’s school on November 20, 2007, alleging
perpetrated by Wu.
title="">[3] The girls reported they were afraid to go
home because Wu had hit them the previous Sunday and Monday and they were
apprehensive the abuse would continue as the hitting appeared to be escalating
in frequency. Wu denied the conduct but
admitted hitting Tiffany on her head “a couple times†after she swore at
him. The Department found “a definite
parent/child conflict [existed] within this family†and recommended the
children remain detained because their return to Wu would be contrary to their
welfare.
The Department filed a
the girls unreasonable pain and suffering and causing them to be afraid of
their father. (Welf. & Inst. Code,
§ 300, subds. (a) [nonaccidental serious physical harm] & (b) [failure
to protect from serious physical harm].)
The petition also alleged there existed a severe parent-child conflict
in that Wu was unable to safely and adequately parent the children, who were
afraid of him because of his temper and angry outbursts. After the initial hearing the petition was
amended to additionally allege Tiffany had on multiple occasions cut her wrists
and both Tiffany and Chelsea had engaged in suicidal ideation as a result of
Wu’s consistent verbal abuse; meanwhile, Wu had refused to acknowledge or seek
treatment for the girls’ suicidal ideations and depression. (Welf. & Inst. Code, § 300, subd. (c)
[serious emotional harm].)
The jurisdiction and disposition hearing lasted
nearly a month, with 11 days of testimony from the girls, Wu and the girls’
therapist. The juvenile court sustained
the allegations under Welfare and Institutions Code section 300, subdivision
(b), and conformed the petition according to proof under subdivision (c). The court observed, “This entire trial has
been about not dealing with how these children feel or what they’ve done,
thought about, in regards to those feelings, but rather addressing why they
have no right to feel that way.
[¶] . . .
[¶] These girls have been clearly
screaming in their own right about their upset, their frustration, their
depression, both suicidal ideations and attempts at that, which is cutting her
wrists as Tiffany did on multiple occasions.
[¶] They have ‘lost’ their mother to a mental
institution. They’ve had a lot to deal
with. And yet Mr. W[u] does not seem to
believe they have any right to feel anything.â€
The court observed, although it could not count the number of slash
marks on Tiffany’s wrist, Wu had raised her wrist in court, called her a liar
and ridiculed her. “If that’s not abuse,
under [Welfare and Institutions Code, section 300, subdivision] (c),
I don’t know what is[],†said the court.
The court also found that everyone has tried to explain the problem to
father, from the social workers, the caretakers, the children’s therapist, and
father’s own therapist, to the girls themselves but Wu did not want to hear and
“doesn’t care.â€
The court declared the children dependents of
the court and found by clear and convincing evidence (Welf. & Inst. Code, §
361, subd. (c)) there was a substantial danger to the children’s health and
safety if they were returned home and there was no reasonable means to protect
them. The court removed the girls from
Wu, placed them under the supervision of the Department and ordered family
reunification services for Wu with monitored visitation. Division Three of this court affirmed the
juvenile court orders on March 9, 2009.
In the interim, the juvenile court conducted a
six-month review hearing pursuant to Welfare and Institutions Code section
366.21, subdivision (e). Wu had failed
to enroll in any of the court-ordered classes or counseling, had written
multiple letters criticizing the Department’s conduct and assessments and had
begun a campaign of harassing the children’s caregivers, which forced the girls
to be relocated. Notwithstanding the
continuing conflict with Wu, the girls’ behavior had improved significantly
since their removal. After a contested
hearing the court found a continuing need for their placement and Wu’s progress
toward alleviating or mitigating the causes necessitating placement had been
“very minimal.†On April 20, 2009
Division Three affirmed the six-month review order.
2.
Wu’s Suit Against the County Defendants
On October 2, 2009 Wu sued the County defendants. He filed a first amended complaint on October
15, 2009 alleging common law causes of action for fraud and deceit and a civil
rights claim under title 42 of the United States Code section 1983
(section 1983).
title="">[5] In support of his fraud claims Wu alleged
Department employees had hidden evidence and information favorable to him to
ensure the girls remained under the jurisdiction of the dependency court,
falsely promised to help him regain custody of the girls and taught the girls
to lie in court. He claimed damages in
excess of $100 million.
After answering the first amended complaint
Defendants moved for summary judgment on the ground Wu’s causes of action were
barred by principles of res judicata and collateral estoppel. While the trial court agreed many of the
issues of fact raised by Wu had previously been determined or were precluded by
the findings in the dependency proceedings, it denied the motion because a
triable issue of fact existed on the question whether, under Government Code
section 820.21, subdivision (a)(3),
name="_ftnref6" title="">[6] an exception to the
general civil immunity of public employees, Wu could prove that one or more
Department employees had maliciously failed to disclose exculpatory evidence.
The trial court filed its order denying
2010. The County defendants filed a
second motion for summary judgment on December 9, 2010, contending Wu could not
establish a triable issue of fact on the question of exculpatory evidence. On February 28, 2011 the court continued the
hearing on the motion to require the County defendants to file underlying
discovery responses in support of the motion.
The County defendants lodged numerous discovery responses with the court
but, at the hearing on May 2, 2011, acknowledged Wu’s deposition had never been
taken. The court continued the trial
date and scheduled a further hearing to coincide with the July 12, 2011 final
status conference to allow Wu to augment his declarations, as best he could, to
establish the County defendants had maliciously failed to disclose exculpatory
evidence during the course of the dependency proceedings. The court also stated it would conduct a
hearing under Evidence Code section 402 on the first day of trial on the same
question if necessary.
At the July 12, 2011 hearing the court indicated
its tentative ruling to grant the pending motion for summary judgment based on
Wu’s previous submissions. As the court
explained, Wu had submitted extensive declarations containing “whatever
evidence he has.†Wu complained that he
had not been able to get discovery in the dependency court and that records
from that proceeding showed Department social workers had omitted relevant
evidence and fabricated other statements.
Counsel for the County defendants noted Wu had been provided with the
entire dependency court record and had deposed 10 Department employees in
addition to the defendant social workers.
The court was not persuaded by Wu’s arguments and indicated an opinion
would be forthcoming.
In the absence of a final ruling, however, the
parties submitted trial briefs in anticipation of the Evidence Code section 402
hearing. On August 1, 2011, the first
day of trial, the court announced it had reviewed the evidence and concluded as
a matter of law Wu had failed to establish the malicious concealment of
exculpatory evidence favoring Wu. As a
threshold matter the court noted there could be no truly exculpatory evidence
when the basis for removing the girls from Wu’s custody was conflict between
the girls and Wu, not some wrongdoing by Wu.
At the court’s suggestion the County defendants moved for a nonsuit,
which was granted.
In its final order granting the judgment of
nonsuit the court found Wu’s section 1983 claim was barred and the immunity
exception for concealing exculpatory evidence could not apply as a matter of
law to the dependency proceedings against Wu.
The court also found Wu’s allegations were conclusory and lacked any evidence
the Department or its employees had maliciously withheld evidence known to be
exculpatory.
contentions
Wu contends the trial court erred in concluding
principles of res judicata and collateral estoppel foreclosed his
specifying a single triable issue of fact in the summary judgment proceedings
and thereafter restricting the litigation to that issue. Finally, Wu contends the court erred in
basing its ruling on the definition of “exculpatory†found in Webster’s
Collegiate Dictionary (1979).
discussion
1.
Standard of Review
“‘The granting of a motion for nonsuit is warranted when, disregarding conflicting evidence, giving
or her] favor
Acquisition Corp. (1995)
40 Cal.App.4th 1571, 1580; accord, Lopez v.
City of Los Angeles (2011) 196 Cal.App.4th 675, 684-685.)
of nonsuit must not be reversed if [the nonmoving party’s] proof raises nothing
more than speculation, suspicion, or conjecture, reversal is warranted if there
is “some substance to [the
nonmoving party’s] evidence upon which reasonable minds could differ. . .
.â€â€™â€ (Wolf v. Walt Disney Pictures & Television (2008)
162 Cal.App.4th 1107, 1124-1125; see
Kidron, at p. 1580 [“[m]ere conjecture or nonsensical interpretations of evidence are not sufficient to overturn a nonsuitâ€]; Ritschel
v. City of Fountain Valley (2006) 137 Cal.App.4th 107, 115.) “
novo, applying the same standard that governs the trial court. (Sandoval
v. Los Angeles County Dept. of Public Social Services (2008) 169
Cal.App.4th 1167, 1178, fn. 11.)
2.
The County Defendants Are Immune from Suit with
the Limited Exception of Malicious Concealment of Exculpatory Evidence or
Deliberate Fabrication of Incriminating Evidence
County employees,
including social workers, have long enjoyed statutory immunity for their
nonmalicious conduct in the investigation of child abuse, removal of a minor
and prosecution of dependency actions.
(See §§ 820.2, 821.6;
name="_ftnref8" title="">[8] Jenkins v. County of Orange (1989) 212 Cal.App.3d 278, 283;
222 Cal.App.3d 869, 881; Ronald S.
v. County of San Diego (1993) 16 Cal.App.4th 887, 899.)
In 1995 the Legislature enacted section
820.21 to narrowly limit the immunity of a social worker who, with malice,
fabricates evidence or withholds exculpatory evidence.
Legislative Counsel’s Digest states that “the civil immunity of juvenile court
social workers, child protection workers, and other public employees authorized
to initiate or conduct investigations or proceedings pursuant to the juvenile
court law shall not extend to acts of perjury, fabrication of evidence, failure
to disclose exculpatory evidence, or obtaining testimony by
of these acts are committed with malice, as defined.†(Legis. Counsel’s Dig. Assem. Bill No. 1355
(1995-1996 Reg. Sess.) 5 Stats. 1995, Summary Dig. p. 428.) In short, this section does not permit suits
for the negligent or even reckless investigation of a dependency matter; to the
contrary, it requires specific evidence of malicious conduct, defined as
conduct “intended . . . to cause injury to the plaintiff or despicable conduct
that is carried on . . . with a willful and conscious disregard of the rights
or safety of others.†(§
820.21, subd. (b).)
The availability of immunity for a cause of
action under section 1983 is governed by federal law (Pitts v. County of Kern (1998) 17 Cal.4th 340, 350), which is not
dissimilar to the exception created by section 820.21. “[S]ocial workers have absolute immunity when
they make ‘discretionary, quasi-prosecutorial decisions to institute court
dependency proceedings to take custody away from parents.’ [Citation.] But they are not entitled to absolute
immunity from claims that they fabricated evidence during an investigation or
made false statements in a dependency petition affidavit that they signed under
penalty of perjury . . . .†(
2008) 514 F.3d 906, 908.)
“[D]eliberately fabricating evidence in civil child abuse proceedings
violates the Due Process clause of the Fourteenth Amendment when a liberty or
property interest is at stake . . . .†(Costanich v. Dept. of Social & Health
Services (9th Cir. 2010)
627 F.3d 1101, 1108.) “To sustain a
deliberate fabrication of evidence claim,†“a plaintiff must, ‘at a minimum,
point to evidence that supports at least one of . . . two propositions.’†(Id. at p. 1111, quoting Devereaux v. Abbey (9th Cir. 2001)
263 F.3d 1070, 1076 (en banc).) Under Devereaux
a plaintiff must show that “‘Defendants [either] continued their investigation
of plaintiff despite the fact that they knew or should have known that [he] was
innocent’†or “‘used investigative techniques that were so coercive and abusive
that they knew or should have known that those techniques would yield false
information.’†(Costanich,
at p. 1111.)
title="">[9]
3.
The Trial Court Did Not Err in Granting the
County Defendants’ Motion for Nonsuit
a.
The trial court correctly gave preclusive effect
to the issues litigated in the dependency proceeding
In its September 29, 2010 ruling on the County
defendants’ motion for summary judgment, the court stated Wu would not be
permitted to relitigate factual issues determined adversely to him in the
dependency proceedings and listed a number of factual issues raised by Wu it
considered precluded. The court’s
ruling on the County defendants’ motion for nonsuit on August 1, 2011 was
premised on the same analysis. Wu
contends the trial court inappropriately applied the doctrines of collateral
estoppel and res judicata to prevent him from establishing his claims.
The trial court’s application of the doctrine of
collateral estoppel is a question of
law subject to de novo review. (Noble
v. Draper (2008) 160 Cal.App.4th 1, 10.)
issue under the doctrine of collateral estoppel only if five threshold
requirements are satisfied: “First,
precluded from relitigation must be identical to that decided in a former
proceeding. Second, this issue must have
been actually litigated in the former proceeding. Third, it must have been necessarily decided
in the former proceeding. Fourth, the
decision in the former proceeding must be final and on the merits. Finally, the party against whom preclusion is
sought must be the same as, or in privity with, the party to the former
proceeding.†(Lucido v. Superior
Court (1990) 51 Cal.3d 335, 341; see also Branson v. Sun-Diamond Growers
(1994) 24 Cal.App.4th 327, 346 [“[a]lthough a second action between the parties
on a different cause of action is not barred by res judicata, nevertheless ‘. .
. the first judgment “operates as an estoppel or conclusive adjudication as to
such issues in the second action as were actually litigated and determined
in the first actionâ€â€™â€].) “‘[I]n
deciding whether to apply collateral estoppel, the court must balance the
rights of the party to be estopped against the need for applying collateral
estoppel in the particular case, in order to promote
repetitive litigation, to prevent inconsistent judgments which undermine the
integrity of the judicial system, or to protect against vexatious
litigation.’†(Clemmer v. Hartford
Ins. Co. (1978) 22 Cal.3d 865, 875; accord, Johnson v. GlaxoSmithKline, Inc.
(2008) 166 Cal.App.4th 1497, 1508.)
Wu, citing no relevant authority, contends the
dependency proceedings have no preclusive effect in this case because the juvenile
court has no authority over misconduct, fraud or
Department employees. Wu has
misconceived the issue. Wu is barred
from relitigating the factual allegations made in the dependency proceedings
that were sustained by the court and ultimately affirmed on appeal. Those issues include the determinations the
girls should be detained under Welfare and Institutions Code section 300, subdivisions
(b) and (c), based on the “severe parent child conflict†that prevented Wu from
“safely and adequately parent[ing]†his daughters and “endanger[ed] the
[girls’] physical and emotional health and safety and place[d] [them] at risk
of physical and emotional harm, damage, danger and physical abuse†and that the
girls had suffered serious emotional damage, as evidenced through Tiffany’s
cutting of her wrist and Chelsea’s suicidal ideation, which Wu had failed to
take seriously and for which he had failed to obtain treatment. The court also found by
& Inst. Code, § 361, subd. (c)) there was a substantial danger to the
children’s health and safety if they were returned home and no reasonable means
to protect them.
Under any application of collateral estoppel
principles, the findings and orders of the juvenile court in the underlying
dependency proceedings, which were affirmed on appeal, are entitled to
preclusive effect in the instant action.
In other words, Wu cannot dispute in this proceeding the juvenile
court’s exercise of jurisdiction, its disposition of the case or the findings
in support of its orders. Those issues
have been fully and finally adjudicated against him. (See In re Joshua J. (1995) 39 Cal.App.4th
984, 993 [“the litigation
an issue by
dependency proceeding] is conclusive
upon the parties
or their privies
in a subsequent
suit on a
actionâ€].)
Wu nonetheless
claims federal law bars application of res judicata or collateral estoppel
principles to section 1983 claims, citing the decision in Johnson v. Mateer (9th Cir. 1980) 625 F.2d 240. Wu has vastly overstated the scope of this
decision. The defendant in
challenging the constitutionality of a search that led to his state court plea
of nolo contendere was not precluded by the state court’s ruling against him on
a pretrial suppression motion. (
ground the defendant would have no other opportunity to seek review of the
constitutionality of the search in a federal court because habeas corpus review
is unavailable on a Fourth Amendment search
and seizure claim. (
Supreme Court affirmed the general application of res judicata and collateral
estoppel principles to section 1983 claims in Allen v. McCurry (1980) 449 U.S. 90, 94 [101 S.Ct. 411, 66 L.Ed.2d
308]: “The federal courts have
traditionally adhered to the related doctrines of res judicata and collateral
estoppel,†excepting only “a federal writ of habeas corpus, the purpose of
which is not to redress civil injury but to release the applicant from unlawful
physical confinement.†In sum, Wu’s contention his section 1983
claim is not subject to the principles of collateral estoppel barring
relitigation of issues determined in the dependency proceeding is without
merit.
b.
There was no procedural error
As best we understand Wu’s next argument, he
contends the trial court erred in identifying the single issue of fact to
survive the County defendants’ initial motion for summary judgment, that is,
whether any conduct by the social workers fell within the exception created by
section 820.21, and thereafter restricting the scope of the litigation to that
issue. He argues the issue was not
identified in the County defendants’ moving papers and summary adjudication of
discrete factual issues is improper unless they completely negate an entire
cause of action. (See Code Civ.
Proc. § 437c, subd. (f)(1);
Cal.App.4th 319, 324.)
Wu’s argument misconstrues the trial court
proceedings. The trial court did not
grant summary adjudication of any issues; it simply denied the motion. Moreover, Wu has not pointed to any ruling by
the court that limited his right to engage in discovery or to otherwise argue
his factual or legal contentions. In
other words, without any prejudice to Wu arising from the court’s order, there
is nothing to address on appeal.
c.
Wu has failed to produce any evidence the
individual County defendants maliciously concealed exculpatory evidence or
deliberately fabricated evidence
Whether or not Wu is precluded from relitigating
the findings and orders issued in the juvenile court proceeding, he has utterly
failed to identify any evidence supporting his allegations of malicious or
deliberate malfeasance by County employees.
Rather than focus on evidence that could conceivably sustain his burden
of proof, he attacks the justification for the juvenile court orders, which, as
established above, are entitled to preclusive effect in this case. Wu also challenges the trial court’s use of a
dictionary definition for the term “exculpatory,†without proposing or
identifying an alternate definition for the word.
It is not the job of this court to search the
record or construct a legal argument
on behalf of a litigant. (See Kim v.
Sumitomo Bank (1993) 17 Cal.App.4th 974, 979 [“‘[t]his court is not
required to discuss or consider points which are not argued or which are not supported
by citation to authorities or the record’â€]; see also People v. Stanley
(1995) 10 Cal.4th 764, 793 [“‘[E]very [appellate] brief should contain a
legal argument with citation of authorities on the points made. If none is furnished on a particular point,
the court may treat it as waived, and pass it without consideration.’â€]; Mansell
v. Board of Administration (1994) 30 Cal.App.4th 539, 545-546 [it is not
the proper function of Court of Appeal to search the record on behalf of
appellants or to serve as “backup appellate counselâ€].)
Wu, who is a member of the California State Bar,
was provided every opportunity by the trial court to identify relevant facts
that would support his claims, and he failed to do so. The court did not err in granting the motion
for nonsuit.
disposition
The judgment is affirmed. The County defendants are to recover their
costs on appeal.
PERLUSS,
P. J.
We concur:
WOODS,
J.
ZELON,
J.
name="_ftn1" title="">[1]
In re Tiffany W. (Mar. 19, 2009, B207928) [nonpub. opn.]. Wu subsequently appealed the juvenile court’s
order at the six-month review hearing (Welf. & Inst. Code, § 366.21,
subd. (e)), which was also affirmed. (
B210409) [nonpub. opn.].)
name="_ftn2" title="">[2]
The facts are summarized from
Division Three’s opinions in the above-referenced appeals.
