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Jacqueline Arce, et al. v. County of Los Angeles

December 17, 2012

JACQUELINE ARCE, ET AL. PLAINTIFFS AND APPELLANTS,
v.
COUNTY OF LOS ANGELES, ET AL., DEFENDANTS AND RESPONDENTS. JAQUELINE ARCE, ET AL. PLAINTIFFS AND APPELLANTS,
v.
CHILDRENS HOSPITAL LOS ANGELES, ET AL., DEFENDANTS AND RESPONDENTS.



(Los Angeles County Super. Ct. No. BC420124) APPEAL from a judgment of the Superior Court of Los Angeles County. Kenneth R. Freeman, Judge.

The opinion of the court was delivered by: Zelon, J.

CERTIFIED FOR PUBLICATION

Reversed.

INTRODUCTION

Appellants Jacqueline Arce, Antonio L. and their children, A.L. and N.L., filed an action alleging that the County of Los Angeles, the Los Angeles Department of Children and Family Services (DCFS) and Childrens Hospital Los Angeles (CHLA) violated their constitutional rights by detaining both children without judicial authorization or adequate cause. They also alleged that DCFS made knowingly false and malicious statements during dependency proceedings and that a CHLA social worker harassed the parents after the children were returned to their custody. The complaint asserted numerous state and federal claims, including violations of 42 U.S.C. section 1983. Each defendant filed a demurrer to the complaint.

The trial court sustained the demurrers without leave to amend, concluding that: (1) plaintiffs' allegation that A.L. was diagnosed with "Shaken Baby Syndrome" demonstrated that exigent circumstances supported the temporary detention of both children; and (2) CHLA was immune from plaintiffs' state law claims pursuant to Penal Code section 11172.

Plaintiffs appeal the judgment dismissing their section 1983 claims and various state law claims. We reverse the judgment and conclude that plaintiffs have adequately stated claims under section 1983, but not under state law.*fn1

FACTUAL AND PROCEDURAL BACKGROUND

A. Summary of Plaintiffs' Complaint

1. Summary of factual allegations in plaintiffs' second amended complaint

In August of 2009, Jacqueline Arce (mother), Antonio L. (father) and their two sons, A.L. and N.L. (the children), filed a complaint alleging numerous federal and state claims against the County of Los Angeles (the County), the Los Angeles Department of Children and Family Services (DCFS), Childrens Hospital Los Angeles (CHLA) and numerous individuals employed by each of those entities.

The second amended complaint, filed on April 14, 2010,*fn2 alleged that, on the morning of Tuesday, September 16, 2008, mother dropped off 11-month old A.L. at Camp Runnymede Daycare, which was owned and operated by Holly Downs. At approximately 10:00 a.m., mother called Downs to check on A.L. and was informed that he had just finished his breakfast and was about to lie down for a nap.

At approximately 3:00 p.m., Downs called mother and reported that A.L. had "'fallen off the bed'" and was acting "'weird.'" One minute later, Downs called mother again and said that paramedics had arrived and wanted to speak to her. The paramedics informed mother that A.L. was being airlifted to CHLA because he was "'acting inappropriately'" and "'needed proper treatment.'" Mother and father immediately traveled to CHLA.

When the parents arrived at the hospital, they were met by emergency room social worker Brett McGillivry, who told them that A.L. was undergoing an MRI. A team of doctors informed the parents that A.L. was suffering from seizures and had "bleeding in his brain." The doctors also stated that A.L.'s symptoms could not have been caused by a fall from a bed.

At 5:10 p.m., the parents and McGillivry called Downs to discuss what had happened to A.L. During the call, Downs "changed her [original] story," stating that A.L. had never fallen off a bed. Downs claimed that she had heard A.L crying in his crib but that he had eventually stopped. When Downs went to check on A.L., she saw him "'lying . . . limp like a noodle.'" Upon hearing these statements, McGillivry told the parents to end the call because he believed Downs was lying. After the call ended, McGillivry told the parents that Downs had previously informed paramedics that A.L. had fallen from a changing table.

McGillivry called the police to report suspected child abuse. At approximately 7:00 p.m., officers from the Los Angeles Police Department arrived at CHLA and requested that the parents fill out a criminal report. McGillivry informed the officers that, based on his experience as a social worker, he believed the parents were "acting appropriately for th[e] incident" and were not responsible for A.L.'s injuries. The police interviewed the parents and met with A.L.'s treating physician, who reported that although the child's head trauma was consistent with a fall, more testing was required to identify the specific cause of the injury. Based on the information they had gathered, the officers suspected that Downs had abused A.L.

On the morning of September 17, 2008, A.L. underwent additional tests, including a second MRI, a skeletal exam and an eye exam. Later that day, an ophthalmologist informed the parents that the tests indicated A.L. had retinal hemorrhaging in both eyes and acute subdural hematoma on the left side of his brain, which was causing his seizures. According to CHLA doctors, "these symptoms w[e]re usually indicative of Shaken Baby Syndrome."

After meeting with the ophthalmologist, father called Downs to talk about "what had really happened to A.L." Downs changed her story again, stating that A.L. had been "hitting his head all day with a rack of toys, and . . . fallen from a changing table twice." Shortly after the call, the parents met with emergency social worker Shawn Rivas, who had come to the hospital to interview the parents and observe A.L. A detective told Rivas that the LAPD was charging Downs with aggravated assault based, in part, on the fact that she had "repeatedly changed her story regarding the incident."

While the parents were at the hospital, father had a "personality conflict" with several CHLA employees, including CHLA physician Karen Iwagawa and CHLA social workers Sandy Himmelrich and Elizabeth Wilson. As a result of this conflict, Iwagawa, Himmelrich and Wilson engaged in a "malicious effort to convince police officers" that the parents, and not Downs, had abused A.L.

On Friday, September 19, two days after A.L. had been diagnosed with symptoms that were consistent with Shaken Baby Syndrome, mother was napping in A.L.'s hospital room when she was awakened by two social workers and employees of the hospital. The social workers told mother they were putting a "'hold' on A.L. because it was unclear how or by who A.L. had been injured." Although the social workers did not have a warrant or court order authorizing the detention of A.L., they told mother to leave the hospital and informed her that she would have to make an appointment with the next available social worker if she wanted to see her son.

While mother was being removed from the hospital, DCFS social worker Eva Yomtobian traveled to the parents' home, where mother's sister and brother-in-law, Jessica Acre-Gomez and Ignacio Gomez (the Gomezes), were taking care of A.L.'s three year old sibling, N.L. Yomtobian told the Gomezes that she had a warrant to detain N.L., which was not true, and let herself into the home. Yomtobian then threatened to arrest the Gomezes and detain their children, Isaac and Ignacio, if they did not cooperate. Based on these threats, the Gomezes permitted Yomtobian to conduct a search of the parents' home, which lasted two hours. At the end of the search, Yomtobian took custody of N.L. and placed him in a foster home. While in the custody of DCFS, N.L. was subjected to a physical examination that was conducted without the parents' consent.

After the parents were informed that DCFS had detained N.L., they repeatedly called Yomtobian to find out where their son had been placed. Yomtobian waited two days before returning these calls. On the morning of Sunday, September 21, Yomtobian gave the parents the number of N.L.'s foster home. When the parents called N.L., he sobbed uncontrollably.

On Monday, September 24, four days after A.L. and N.L. were detained, DCFS filed a petition in juvenile court seeking jurisdiction over the children pursuant to Welfare and Institutions Code section 300. Yomtobian, who was angry at the parents for "question[ing] her authority and motives," included numerous false statements in the petition and an accompanying detention report, alleging, among other things, that: (1) the parents could not explain how A.L. was injured; (2) A.L.'s injuries occurred through the result of the parents' deliberate, unreasonable and neglectful conduct; and (3) the evidence collected by DCFS "clearly indicat[ed]" that the parents had physically abused A.L. and that there was a "very high risk" they would engage in similar conduct in the future. Yomtobian also withheld "important exculpatory information," including the fact that the LAPD was "treating daycare owner Holly Downs as its primary suspect, and increased the charges to aggravated assault following their investigation."

That same day, the juvenile court held a detention hearing and found there was no evidence to support DCFS's allegation that the parents caused A.L.'s injuries. The court ordered DCFS to immediately release A.L. and N.L. to their parents. Despite the juvenile court's findings, DCFS refused to dismiss the petition and continued to seek jurisdiction over A.L. and N.L.

Two weeks after A.L. and N.L. were returned to the parents' custody, A.L. caught his foot in his walker, bruising his ankle. Three days later, on October 9, A.L. developed in a rash and mother brought him to his pediatrician, Dr. DeSilva. While diagnosing the rash, DeSilva noticed the bruise and asked what had occurred. Mother explained that A.L. had hurt himself while riding his walker. Although DeSilva was unconcerned about the injury, he told mother that the walker was not safe for A.L.

The next day, CHLA social worker Wilson called mother and instructed her to bring A.L. to the emergency room to allow doctors to conduct tests on A.L.'s foot "because it was probably broken." Mother was worried that DCFS intended to detain A.L. again and told Wilson she could not bring the child to the hospital until father returned from work. When father arrived at the home, he called Wilson to ask what was going on. Wilson initially told father that mother called her and said she thought A.L.'s foot might be broken. When mother denied having called Wilson, Wilson changed her story, claiming that Dr. DeSilva had told a CHLA physician that he suspected the parents had injured A.L.'s foot. Father questioned why Wilson had changed her story and she began to laugh and threatened to take away the children.

Mother called another social worker and apprised her of the situation. The social worker told mother she should take A.L. to a hospital because DCFS "simply wanted to get A.L. checked out by a doctor." Shortly after this call, Wilson called mother again and told her that a nurse and social worker were traveling to her house to examine A.L. and, if necessary, take him to the emergency room. A DCFS nurse and social worker arrived at the home, examined A.L., took pictures of his foot and directed parents to take him to the hospital. The parents felt pressured to comply with this request and brought A.L. to Holy Cross Hospital, where the "doctors were very upset that they had to run x-rays on a bruise." Several weeks later, the parents "received a letter from DCFS regarding the incident that stated there was no evidence of abuse or neglect."

In November and December of 2008, DCFS submitted additional reports to the juvenile court that repeated the false allegations that appeared in the section 300 petition and the detention report. These new reports also falsely alleged that a prior referral of abuse had been substantiated against the parents and that father had acted violently toward DCFS during the investigation of A.L.'s bruised ankle. The reports recommended that the juvenile court deny reunification services to the parents.

On March 18, 2009, the juvenile court held a jurisdictional hearing and dismissed DCFS's section 300 petition based on "insufficient evidence." Despite the dismissal, DCFS continued to harass the parents, which caused them to move to a new city.

2. Summary of causes of action

The second amended complaint alleged numerous federal and state claims against the County, DCFS (collectively County defendants) and CHLA, including violations of 42 U.S.C sections 1983, 1985 and 1986, assault, battery, false imprisonment, negligence, fraud, violation of state civil rights, abduction of a child, intentional infliction of emotional distress, invasion of privacy and declaratory relief.

Plaintiffs' section 1983 claim alleged three separate violations arising from the detention of A.L. and N.L. First, A.L. alleged that County social workers, acting in collaboration with CHLA, had violated his Fourth Amendment rights by detaining him at the hospital without judicial authorization. Second, N.L. alleged that County social workers had violated his Fourth Amendment rights by removing him from his home without judicial authorization. Third, the parents and the children alleged that County social workers had violated their Fourteenth Amendment rights to familial association by: (1) removing the children without authorization or proper justification, and (2) "maliciously falsifying evidence, and presenting fabricated evidence to the court, and maliciously refusing to provide exculpatory evidence during the pendency of the dependency proceedings." The complaint also included a separate section 1983 "Monell" claim alleging that the County had established policies and procedures that caused the deprivation of the plaintiffs' constitutional rights.*fn3

The plaintiffs' state law claims were predicated on various categories of allegedly unlawful conduct, including: (1) the warrantless seizure and detention of A.L. and N.L; (2) fabricating statements during the pendency proceedings; (3) negligently placing N.L. in an unsuitable foster home;*fn4 and (4) harassing the parents about A.L.'s bruised ankle.

B. Demurrers to the Second Amended Complaint

The County defendants and CHLA filed separate demurrers to the second amended complaint. The County defendants argued that they were immune from liability for all of the conduct alleged in the complaint, including the instigation of dependency proceedings, statements made during dependency hearings and foster care placement decisions. They also argued that many of plaintiffs' claims were uncertain because the allegations in the complaint failed to specify which County employees had engaged in the unlawful conduct.

CHLA's demurrer argued that it was immune from suit under Penal Code section 11172 because all of plaintiffs' claims were predicated on conduct that was committed in furtherance of state-mandated child abuse reporter duties. (See Penal Code, § 11166, subd. (a).) CHLA also argued that plaintiffs' claims were uncertain because they did not sufficiently identify which specific individuals had committed the unlawful conduct.

During oral argument, the court informed the parties that it was inclined to sustain both demurrers with leave to amend because the complaint demonstrated that exigent circumstances supported the seizure of A.L. and N.L. Although neither defendant had raised the issue in their demurrers, the court explained that plaintiffs had "alleged facts that indicate that defendants acted with justification in taking custody of the minor children. Namely, [paragraph 40 of the complaint alleges] that the minor plaintiff A.L. was diagnosed with 'Shaken Baby Syndrome'. . . ."*fn5

In response to the court's statement, plaintiffs' counsel argued that the allegations in the complaint showed that there were questions of fact as to whether any exigency supported the children's warrantless seizure. Specifically, counsel noted that, at the time of A.L.'s detention, two other social workers and the LAPD had concluded that Holly Downs was at fault for A.L.'s injuries. Moreover, the children were not detained until two days after A.L. had been diagnosed with Shaken Baby Syndrome.

The court rejected these arguments, explaining: "Look, you've established that this baby is in a life threatening situation . . . . [¶] Now, once you've established that, . . . the County has a very, very strong duty to protect that child . . . . [¶] So you have established . . . that there is a very, very strong reason for the County to get involved. So what you're saying to me is, oh, yeah, the child could be dead. And if this same event were to occur again the child could very well be dead. But several people think that the mother is okay. So you're saying, then that the County should then take different action then they took. All right. I'm saying that once you've established that you have a child that is in grave circumstances, that could be dead, that could die based on what has happened, thus far, that puts a really strong . . . duty on the part of the County. . . . And your paragraph 40 allegation is something that carries great weight in terms of justifying what the County did."

The court cited two additional reasons for sustaining the demurrers. First, it agreed with the defendants' assertion that plaintiffs' claims were "uncertain" because the allegations "lump all of the [defendants] together, without any specification as to which defendant was responsible for what actions." Second, the court noted that the defendants were immune from any claim based on "'presenting perjured testimony' and 'fabricating evidence,'" or any conduct related to the "investigation of the child abuse reports pursuant to . . . statutory dut[ies]."

At the conclusion of the hearing, plaintiffs' counsel asked the court to clarify whether the "demurrer [was] sustained essentially on the basis of uncertainty . . . or . . . on more substantive grounds like immunities." The court explained that the demurrers had been sustained because the allegations were uncertain and the "alleged facts indicate that the defendant acted with justification; again at paragraph 40." The court acknowledged that the state law claims pleaded against CHLA, which were based on conduct that occurred after DCFS returned custody of A.L. and N.L to the parents, were "probably adequately pled," but requested that the claims be "cleaned up" in the third amended complaint.

C. Third Amended Complaint

1. Summary of the third amended complaint

On July 13, 2010, plaintiffs filed their third amended complaint, which reasserted most of the allegations and claims that appeared in the second amended complaint. However, in an attempt to comply with the trial court's prior directives, the third amended complaint included additional allegations identifying which specific defendants had engaged in the unlawful conduct.

The third amended complaint also removed several factual allegations that appeared in the prior version of the pleading. In the "Common Allegations" section of the complaint, plaintiffs removed the paragraph stating that, on the evening of September 17th, doctors informed the parents that A.L. was exhibiting symptoms that are "usually indicative of Shaken Baby Syndrome." They also removed the allegation that social workers told mother that A.L. was being placed on hold "because it was unclear how or by whom A.L. had been injured."*fn6

2. Demurrers to the third amended complaint

The County defendants and CHLA each filed a demurrer to the third amended complaint that raised the same arguments that were presented in their demurrers to the second amended complaint. Specifically, the defendants argued the plaintiffs' claims were uncertain and that they were immune from liability for all of the conduct alleged in the complaint. In addition, CHLA argued that the plaintiffs had improperly attempted to avoid the trial court's prior ruling by removing the allegation that A.L. was diagnosed with Shaken Baby Syndrome. ...


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