The opinion of the court was delivered by: Oliver W. Wanger United States District Judge
SCHEDULING CONFERENCE ORDER
Discovery Cut-Off: 6/24/11 Non-Dispositive Motion and Filing Deadline: 7/11/11 Non-Dispositive Motion Hearing Date: 8/12/11 9:00 Ctrm. 7
I. Date of Scheduling Conference. July 28, 2010.
Deadline: 7/25/11 Dispositive Motion Filing Dispositive Motion Hearing Date: 8/29/11 10:00 Ctrm. 3 Settlement Conference Date: 6/29/11 10:30 Ctrm. 7 Pre-Trial Conference Date: 10/3/11 11:00 Ctrm. 3 Trial Date: 11/1/11 9:00 Ctrm. 3 (JT-5 days)
III. Summary of Pleadings.
Plaintiff's Factual Contentions
1. Plaintiff contends that on September 16, 2005, at the hearing of an ex parte application on a family law matter in the Madera County Superior Court, Defendant Sandra Upton failed to disclose exculpatory evidence which would have indicated that the Plaintiff did not exchange his child with his ex-wife, only upon being instructed by law enforcement officers not to do so. Plaintiff contends that the failure to disclose this evidence resulted in Plaintiff being deprived of custody and visitation rights relative to his minor son. Plaintiff contends that Sandra Upton was acting as an employee of the County of Madera, Department of Social Services, at the time of the hearing.
2. Plaintiff contends that Sandra Upton conspired with Amparo Williams, another employee of the Department of Social Services, and others, to deprive the Plaintiff of his right to be with his son, in part due to Plaintiff's ancestry and his gender.
Plaintiff's Legal Contentions
3. Plaintiff contends that the failure to disclose exculpatory evidence violated Plaintiff's civil rights and that he is entitled to recovery from the Defendants under § 1983. He also contends that the conspiracy is actionable under § 1985. Plaintiff seeks recovery upon a state law theory of the infliction of emotional distress. Plaintiff seeks recovery against the County of Madera and the Department of Social Services because of policies and procedures concerning the use of trickery, duress, fabrication and/or false testimony of evidence, and the failure to disclose exculpatory evidence. Also Plaintiff contends that there was a failure to adequately train County employees relative to certain Constitutional rights.
Relief Sought by Plaintiff
4. Plaintiff is seeking general damages according to the proof, special damages according to the proof, including medical expenses, compensatory damages for violation of Plaintiff's civil rights, and costs of suit.
Defendants' Factual Contentions
5. Defendants contend there was a factual controversy relative to the circumstances preceding the ex parte application. Defendants contend the hearing was requested by the son's attorney, and other ex parte relief was requested by the son's mother. At the time of the hearing, an order was in force which required the child to be exchanged at pre-arranged times and without incident. The Superior Court had already found that both the Plaintiff and the mother were not acting in the best interests of the child, and had declared the child to be a ward of the court. The father had been found to have been overly suspicious of the mother and to have been manipulating his son against the mother.
6. Defendants contend that Plaintiff had failed to comply with the exchange order on several occasions. While Plaintiff contends that police officers told him not to exchange his child with mom, police officers subsequently questioned son and determined that no abuse had occurred and that there was no justification for the scheduled exchange not to take place. Defendants contend that the Plaintiff was repeating behavior in which he was falsely accusing the mother, or exaggerating the circumstances. Plaintiff did not at any time explain to any employee of the Department of Social Services why he would not be exchanging the child per the court's order.
7. Defendants contend that Plaintiff's counsel, at the time, requested an evidentiary hearing for a later date, a month after the hearing of the ex parte application.
8. On state law claims, Plaintiff did not timely file his complaint after having been given notice of the rejection of his claim.
Defendants' Legal Contentions
9. Defendants contend that they have not violated Plaintiff's civil rights and that they are not liable for decisions of the judge of the Superior Court. The Plaintiff himself, or his previous attorney, are responsible for the outcome of the previous litigation.
10. Defendants also contend that, relative to the civil rights claims, either the absolute or qualified privilege applies.
11. As to the state law claims, Plaintiff has failed to comply with the California Government Claims Act and cannot seek recovery against the Defendants. Otherwise, he cannot show that the Defendants engaged in extreme or outrageous conduct, or would have owed a duty to Plaintiff to prevent him suffering emotional distress.
IV. Orders Re Amendments To Pleadings.
1. The Court, with Plaintiff's consent, has dismissed without prejudice, the Department of Social Services, as that is not a public entity that can be liable under the circumstances of this case.
2. The parties do not anticipate amending the pleadings at this time, except the Plaintiff has agreed that Madera Department of Social Services is dismissed without prejudice.
3. The Defendants shall file their answer to the most recent amended complaint on or before January 31, 2011.
A. Admitted Facts Which Are Deemed Proven Without Further Proceedings
1. The parties do not dispute that Defendants Sandra Upton and Amparo Williams were the employees of the County of Madera and were acting in the course and scope of employment at the time of the pertinent events.
2. It is not disputed that Plaintiff was the father of the child identified in the pleadings.
3. It is not disputed that on or about November 24, 2004, the Kern County Superior Court held a hearing. The judge ordered supervised visitation for the mother and that she would not sleep in the same bed as the minor. The court ordered the minor child be evaluated by Jay Fisher, Ph.D.
4. It is not disputed that in January of 2005, Dr. Jones, a pediatrician, noted signs of physical abuse and injuries on the minor child's body and that Dr. Jones' notes relate that the child's mother had inflicted these injuries when hitting the child with a wooden spoon. On January 10, 2005, the minor child was placed in the temporary placement and care of the CPS by court order, and that the child was later placed in foster care.
5. A CSART interview of the minor child was completed on early 2005, with the Deputy District Attorney present, as well as a Madera Police Department Detective, and a District Attorney's Office investigator. The interview was conducted without Plaintiff or any relative present.
6. On February 21, 2005, Dr. Fisher, a child psychologist, issued a report of a psychological examination. The report indicated that the minor was very intelligent. Dr. Fisher concluded that the mother appeared to have hurt her son and placed him in a position where he was injured and/or physically abused. Dr. Fisher recommended that the minor be returned to the custody of his dad. Dr. Fisher recommended that the mother should have supervised visits with the child, obtain psychotherapy for her and her child, and take an anger management course.
7. A dependency hearing was held on April 11, 2005, which was contested.
8. On or about June 10, 2005, Judge Thomas Bender reached a decision in the dependency case. Judge Bender found that there was one incident of physical abuse by the mother. Judge Bender ordered the minor to become a dependent of the court. The parents would have alternating visitation consisting of custodial time with both parents.
9. Dr. Napolitano made a report to Pam Ogella at Madera CPS on August 23, 2005.
10. Plaintiff arrived at the Madera City Police Department on September 15, 2005, with his minor child and met with Sgt. Wiles and Defendant Upton.
11. Plaintiff later complained to the supervisors and management of the Department of Social Services and asked that ...