ORDER AND FINDINGS & RECOMMENDATIONS
On July 12, 2012, the court held a hearing on defendant Thomas Mazzera's ("Mazzera") motion for summary judgment and defendant Christopher Holden's ("Holden") motion for summary judgment. Plaintiff Milos Leubner appeared in pro per. Marjorie Manning appeared for Mazzera. Dana Suntag appeared for Holden. Upon review of the motions and the documents in support and opposition, and good cause appearing therefor, THE COURT FINDS AND ORDERS AS FOLLOWS:
This case arises from juvenile dependency proceedings initiated in San Joaquin
County. Plaintiff is the father of twin girls, Cleariana*fn2
and Champagne*fn3 Leubner (collectively, "the
minors" or "the children"), born March 17, 1995. TAC, ¶ 12; Cleariana
Dep. 26:7. Plaintiff is not, and has never been, married to the
children's mother, Dolores Boddy ("Boddy" or "the mother"). Pl.'s Dep.
46:17-24, 47:9-10, 54:23-25. Throughout their lives, the children have
lived with each parent off-and-on, though in the years leading up to
the incidents at issue in this case, they lived primarily with
plaintiff in Kelseyville, California. Cleariana Dep. 27:12-23,
33:8-12. This custody arrangement was based on mutual agreement rather
than a court order.
Some time in early April 2006, the minors, eleven years old at the time, arrived in San Joaquin County to visit their mother, who was living at the home of defendant Donna Dones ("Dones"), Boddy's boyfriend's mother, in French Camp, near Stockton, California. Holden Decl., Ex. C. at 7. On April 10, 2006, the mother filed a petition in the San Joaquin County Superior Court seeking legal and physical custody of the minors. Id.
B. Deputy Luck's Police Report
On April 24, 2006, Deputy Jeffrey Luck of the San Joaquin County Sheriff's Department, was dispatched to the home of Dones for a temporary custody order dispute. Holden Decl., Ex. C (Doc. No. 222-6 at 20-25*fn4 ). The following is gleaned from the narrative contained in the police report prepared by Deputy Luck ("the Police Report"): Plaintiff allowed his daughters to visit Boddy in early April 2006, but has been unable to get a hold of either of them for the previous few weeks. Id. (id. at 23) When he finally spoke to one of his daughters, he was told that they were enrolled in Neil Hafley Elementary School in Manteca, California. Id. With that information, plaintiff went to the school on April 24, 2006 to pick up his daughters. Id. He had with him a temporary custody order from the Lake County Superior Court. Id. Boddy refused to release the children to him and police were called. Id. On arrival at the school, the responding officer convinced plaintiff to wait until a May 8, 2006 court date before taking the minors into custody. Id.
Later that same day, plaintiff appeared at Dones's residence to take custody of the children when the police were called again. Holden Decl., Ex. C (Doc. No. 222-6 at 23). Deputy Luck spoke to Dones, who stated that she was afraid the children were unsafe with plaintiff "because there may be some type of abuse going on." Id. She stated that prior to Deputy Luck's arrival, Boddy and the children ran from the home on foot because they were upset. Id.
Deputy Luck contacted Boddy and convinced her to return to the Dones residence with the children. Holden Decl., Ex. C (Doc. No. 222-6 at 23-24). On their return, Boddy and the children "became very upset and began to cry, stating that they did not want to go with [plaintiff]." Id. Per the Police Report, "[the minors] told [Deputy Luck] that [plaintiff] ha[d] pornography all over his house, ha[d] taken pictures of them while they are nude, and that he corporally discipline[d] them with a plastic stick with metal objects on the end of it." Id. (id. at 24).
The Police Report included Champagne's statement to Deputy Luck:
(V)*fn5 Champagne LEUBNER told me she is not comfortable being with her father, (S) LEUBNER, because she believes he abuses her because he hits her with a stick, he has slapped her, and he has kicked her. She said that when she was nine years old she was in the shower with her sister when her father came in and took pictures of them through a translucent shower curtain. She said that he told them to pose for him. (V) Champagne LEUBNER said that her father has never touched her inappropriately but that she feels it is wrong that he is taking pictures of her when she was nude and that it makes her feel uncomfortable. She said that (S) LEUBNER is an angry and frustrated person, especially ever since their mother, (S) BODDY, has been trying to gain custody. She said that her father leaves pornographic magazines of women committing sex acts all over the house in different rooms. She said her father also watches pornography at night when he thinks that they are asleep.
(V) Champagne LEUBNER told me that they have a friend who lives near them in Kelseyville on a street called Clark Lane named Jordan CROUCH who is a seven year old white female juvenile with blond hair who (V) Champagne LEUBNER said is a witness to (S) LEUBNER physically abusing her and her sister by putting them in a closet and hitting them with a plastic stick that has metal objects on the end of it. (V) LEUBNER described this stick as possibly a broken piece of tent stake. (V) Champagne LEUBNER told me that there was a separate occasion where (S) LEUBNER photographer her nude and it was on a camping trip in July 2005 at a place called Cobb Mountain. She said that she and her sister were int heir bathing suits playing in a stream when their father requested that they take their clothes off for photographs. She said she initially denied the request because she felt uncomfortable but that he kept asking her so she complied. She said that during the time he was taking these photographs he asked her to touch her sister's butt and to take different poses.
Holden Decl., Ex. C (Doc. No. 222-6 at 24).
The Police Report also included Cleariana's statement to Deputy Luck:
(V) Cleariana LEUBNER told me that she does not want to be in the custody of her father because although she loves him she feels like he is an angry person and she does not like it when he hits her. She said that he is scary when he is mad and that he has called her names like, "drugged up whore." She said she believes if she does not do something properly or well enough that he does not love her and that he makes her "work for his love." She said that while some of the physical discipline that (S) LEUBNER has given her has been being hit with a stick wit metal objects on the end of it. She could not describe the stick further. She said the stick has left welts on her as well as a small scar on her stomach. She pulled up her shirt to show me the mark and I saw an approximate half inch very light scar mark on her stomach that may or may not be consistent with this stick. (V) Cleariana LEUBNER said that her father has been mad at her and slapped her as recently as two weeks ago, giving her a bloody nose. (V) Cleariana LEUBNER also spoke about an incident when she was nine years old of (S) LEUBNER taking pictures of her and her sister in the shower, as well as the incident where (S) LEUBNER took nude photographs of them while they were playing in the stream during a camping trip in July of 2005. She said that she does not feel comfortable when (S) LEUBNER does these things and she does not think it is right.
Holden Decl., Ex. C (Doc. No. 222-6 at 24-25).
Based on the children's statements*fn6 , Deputy Luck took the children into protective custody and placed them at Mary Graham Children's Shelter ("MGCS"). Holden Decl., Ex. C (Doc. No. 222-6 at 24).
C. Egi's Interviews and the Detention Report
On April 25, 2006, defendant Kenneth Egi, an emergency response social worker,
conducted interviews with Boddy, plaintiff and the children. See Holden Decl., Exs. A-B. His notes of these interviews are set forth in a Delivered Service Log ("DSL"), which is a record of a social worker's significant activity in a case and prepared at or around the time of the significant activity. See Holden Decl. ¶ 4.
Egi's DSL notes of his April 25, 2006 in-person interview with Boddy provides: "The mother indicated her wish to have the children returned to her custody. . . . The mother admitted that the children have been raised by their father the majority of their lives but in the past two years or so the father has been getting abusive with the children. The mother indicated she has observed bruises on the children in the past but the father explained them away. Only recently has she learn[ed] of father's behavior towards the children." Holden Decl., Exs. A at 2-3, B at 2-3.
Egi's DSL notes of his April 25, 2006 telephone interview with plaintiff provides that plaintiff raised the children the majority of their lives, Boddy spent the last five years in Alaska, and Boddy is in a "domestic violent relationship with drug use" with her boyfriend. Holden Decl., Exs. A at 3, B at 3.
Egi's DSL notes of his April 25, 2006 in-person interview with the children provides: "Champagne and Cleariana indicated their wish to return to the custody of their mother. They do not want to be placed with their father due to father's cussing, physical abuse and father taking nude photos of the girls when they were about nine years old." Holden Decl., Exs. A at 2, B at 2.
Egi's interviews served as the basis for a Detention / Jurisdiction Report ("the Detention Report") that he prepared. See Holden Decl., Ex. C. According to the Detention Report, the children detailed emotional, physical and sexual abuse:
[The minors] described their father as always cussing at them, very physically abusive and taking nude photos of them when they were about nine years old. Cleariana and Champagne indicated that the father constantly cusses at them, uses the "F word", "B word", calling them whores and other cuss words. The cussing is to the point where they feel very uncomfortable around the father, as they could not do anything right. Further, Cleariana and Champagne described numerous incidents of being hit with father's hand, a stick with a plastic end and belts. Cleariana and Champagne recalled having bloody noses, cut lips and black eyes from being slapped on the face/cheek area. Cleariana and Champagne indicated they were afraid to tell anybody about the abuse, as the father had control over them. In addition, Cleariana and Champagne indicated that about two years ago, the father took photos of them in the nude. The last incident was on July 25, 2005, as they saw dates on their nude photos. The father initially had them in bathing suits swimming in a local creek but later told them to take off their swimsuits so he could take photos. The photos occurred about three or four times in the past two years. Further, Cleariana and Champagne indicated that the father would show the nude photos to his friends.
Holden Decl., Ex. C (Doc. No. 222-6 at 15).
On April 26, 2006, defendant Christopher Holden, assigned to replace Egi as the social worker for the children, prepared a Juvenile Dependency Petition ("the Petition"). See Holden Decl. ¶¶ 1, 8-10; Ex. C. The Petition sought continued detention of the children pursuant to Cal. Welf. and Inst. Code § 300(a) (Serious Physical Harm); § 300(b) (Failure to Protect); and § 300(d) (Sexual Abuse). The Petition repeated the factual allegations set forth in the Police Report and the Detention Report.
E. The April 27, 2006 Detention Hearing
On April 27, 2006, the dependency court held a detention hearing.*fn7 Suntag Decl., Ex. F at 1-6. There, Mazzera was appointed to represent the minors. Id. at 4. Mazzera, an attorney in private practice since 1981, has never been an employee of San Joaquin County, any of its agencies or any other governmental entity or agency. Mazzera Decl., ¶ 2.
Plaintiff's appointed counsel stated on the record that although plaintiff was opposed to the detention of the children, he agreed to their short-term detention at MGCS. Suntag Decl., Ex. F at 5. Following discussion of counsel, the court found that placing the minors in the home of either parent was contrary to their welfare. Id. at 6. Accordingly, the court ordered the minors detained and placed in the custody of the Human Services Agency ("HSA"). Id. The court scheduled a jurisdictional hearing for May 16, 2006. Id. The children were thereafter placed into foster care. Pl.'s Dep. 374:9-12.
F. Holden's First Meeting with the Children
On May 3, 2006, Holden first met with the children in the hallway at the courthouse. Holden Decl., ¶ 12; Cleariana Dep. 120:17-22. During this visit, Champagne agreed to supervised visit with plaintiff for one hour every two weeks. Holden Decl. ¶ 12, Exs. A at 3, B at 3. Cleariana, however, told Holden that she was scared to see plaintiff and did not wish to visit with him. Holden Decl. ¶ 12; Exs. A at 3, B at 3. Holden prepared a report based on this meeting. See Suntag Decl., Ex. F at 10-11.
During her deposition in this case, Champagne stated that her statements to Holden were correct. Champagne Dep. 124:16--125:10. Also in this case, Cleariana testified that she told Holden she wanted to live with her mother, and she testified that she never asked Holden for visitation with plaintiff. Cleariana Dep. 120:23-25, 156:1-3.
G. The May 4, 2006 Visitation Hearing
On May 4, 2006, the juvenile court held a visitation hearing after plaintiff requested visitation with the children. See Suntag Decl., Ex. F at 7-12. At this hearing, the court disagreed with plaintiff's counsel's assertion that the nude photographs that plaintiff took of the minors was not unusual or abnormal. Id. at 11. Regarding plaintiff's request for visitation, and based on Holden's May 3, 2006 report following his visit with the minors, counsel for HSA asked that any visitation with Champagne be supervised and any visitation with Cleariana be at the discretion of the social worker. Id. at 10. Mazzera requested additional time to visit with the minors to confirm the substance of Holden's report. Id. at 11; Mazzera Decl. ¶ 6. After discussion, the court authorized supervised visits with Champagne on alternate weeks, but determined that there would be no visitation with Cleariana until she and her attorney were agreeable to visits. Suntag Decl., Ex. F at 11-12.
H. Mazzera's May 5, 2006 Meeting with the Minors
As a court-appointed attorney in juvenile dependency proceedings, Mazzera was required by the Administrative Office of the Courts to record information in a computer form to keep a record of time expended in each assigned case on a daily basis. See Mazzera Decl., ¶ 9; Ex. A. The data entered in the form includes the case name or number, type of service provided, hours expended and other information. Id. Mazzera's notes reflect that he met with the minors on May 5, 2006, June 19, 2006 and July 14, 2006. Id. Ex. A at 2, 11, 16.
On May 5, 2006, Mazzera met in-person with the children. Mazzera Decl., ¶ 7; Ex. A at 11. At the beginning of this meeting, Mazzera initially understood Champagne to be amenable to supervised visits with her father every other week for one hour, and understand that Cleariana did not want to visit with plaintiff. Mazzera Decl., ¶ 7. At the conclusion of the meeting, however, both children stated that they did not want any visits with their father. Id.
On May 8, 2006, Holden asked Mazzera regarding his meeting with the minors. Holden Decl., ¶ 14, Exs. A at 4, B at 4; Mazzera Decl., ¶ 7. Mazzera informed Holden that neither minor wished to see plaintiff. Holden Decl., ¶ 14, Exs. A at 4, B at 4. Based on this information, Holden calendared a court hearing for review of plaintiff's visitation with the minors. Id.
On the morning of May 8, 2006, plaintiff traveled to Stockton for visitation with the children, but was turned away by Holden because the minors did not want to see plaintiff. Pl.'s Dep. 156:8-13, 187:24--188:5. This was the only time plaintiff was denied visitation with the children. Pl. Dep. 189:2.
I. The May 9, 2006 Visitation Hearing
On May 9, 2006, the court held a second visitation hearing. Suntag Decl., Ex. F at 13-19. During this hearing, Mazzera stated that, based on his meeting with the minors, they no longer wished to visit with plaintiff, but "they would entertain letters from [plaintiff] as long as they go through the social worker." Id. at 15. Contrary to plaintiff's assertion in the TAC, the transcript does not reflect that Mazzera said the children were "terrified" of plaintiff. See id.; Mazzera Decl., ¶ 8; TAC ¶ 53. Plaintiff's counsel stated that although plaintiff wanted visitation, "[h]e understands the position of the minors." Suntag Decl., Ex. F at 16. Accordingly, the court ordered that there be no person-to-person visitation between the minors. Suntag Decl., Ex. F at 16. The court did allow plaintiff to have contact with the children by letters through the social worker. Id.
On June 19, 2006, Mazzera spoke to one or both of the children by phone. Mazzera Decl., ¶ 9; Ex. A at 11.
On June 20, 2006, Holden referred the minors to Bonnie Tweedy for therapy.
Holden Decl., ¶ 16. Cleariana testified that she told Tweedy that she did not want to see or talk to plaintiff. Cleariana Dep. 141:18-25, 369:16-21. Champagne told Tweedy that she was uncomfortable about seeing plaintiff, that she did not want to attend counseling with him, that she wanted to live with her mother, ...