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D.C. v. County of San Diego

United States District Court, S.D. California

November 7, 2017

D.C., a minor by and through his Guardian Ad Litem, Helen Garter, on behalf of himself and all others similarly situated, Plaintiff,



         Plaintiff D.C., a minor, filed this putative class action through his guardian ad litem pursuant to 42 U.S.C. § 1983, alleging Defendants violated his and putative class members' constitutional rights under the Fourth and Fourteenth Amendments to the United States Constitution. See Doc. No. 19, First Amended Complaint (“FAC”). Plaintiff filed a motion to certify a class of “[a]ll children who had not yet reached 20 years of age as of August 24, 2015 and who were placed at A.B. and Jessie Polinsky Children's Center and subjected to a physical examination without the presence of their parent or legal guardian, without the consent of their parent or legal guardian, without an individualized order of the court authorizing their examination, and without exigent circumstances.” See Doc. Nos. 60, 60-1 (“Pl. Mtn”). Defendant County of San Diego[1]filed its response in opposition [Doc. No. 63 (“Oppo.”)], and Plaintiff replied [Doc. No. 65 (“Reply”)]. The Court found the matter suitable for determination on the papers and without oral argument pursuant to Civil Local Rule 7.1.d.1. For the following reasons, the Court DENIES Plaintiff's motion for class certification.


         Plaintiff contests the constitutionality of medical examinations conducted on children at Polinsky Children's Center (“Polinsky”), “a 24-hour facility for the temporary emergency shelter of children who are separated from their families.” See FAC ¶ 10. Specifically, Plaintiff alleges that in May 2014, the San Diego County Health and Human Services Agency (“HHSA”), an agency of Defendant San Diego County, determined that Plaintiff “ha[d] been injured while in the custody of his father, and that the injury was suspicious for child abuse.” FAC ¶ 21. On August 20, 2014, Plaintiff alleges his mother, Katy Evans, was on a ship pursuant to her duties as a Petty Officer First Class in the United States Navy. FAC ¶ 20. The FAC states that, on that date, a friend of Evans', Wes Bowen, was caring for Plaintiff, who was two years old at the time. FAC ¶¶ 22, 26. While in Bowen's care, Plaintiff purportedly fell and scraped his forehead. FAC ¶ 22. Plaintiff alleges Bowen informed Evans immediately, and Evans contacted Defendant HHSA. Id.

         On August 21, 2014, Plaintiff alleges his father had a supervised visit with him during which the supervisor did not monitor his father adequately. FAC ¶ 23. Plaintiff contends that on August 22, 2014, he was examined by a child abuse specialist at the Chadwick Center for Children and Families. FAC ¶ 24. Chadwick Center is a “hospital-based child advocacy and trauma treatment center.” Id. The specialist allegedly concluded Plaintiff's injuries to his forehead were likely caused by an accident, but found a small bruise behind his right ear which she found suspicious of child abuse because it was similar to the injury Plaintiff's father had inflicted on Plaintiff in May 2014. Id. Plaintiff alleges that he was then removed from Evans' control and care. FAC ¶ 25.

         On August 22, 2014, Plaintiff alleges he was taken to Polinsky and upon his arrival, he was given a “cursory ‘wellness' check by staff” and placed into the general population. See FAC ¶ 26. The next morning, Plaintiff contends he was subjected to a physical examination, including an external examination of his genitalia and rectum. FAC ¶¶ 26-27. He alleges that his mother was not notified of the examination, was not present for it, and did not consent to it. FAC ¶ 27. Plaintiff contends that there were no exigent circumstances to justify the examination, nor had the County or its agents obtained a court order or warrant. Id.

         Based on the examination at Polinsky, Plaintiff alleges a violation of his Fourth Amendment right to be free from unreasonable investigatory searches, and a violation of his Fourteenth Amendment right to family association. FAC ¶¶ 42-55. Plaintiff contends that Defendant County is liable to him and putative class members because Polinsky maintained a policy, custom, and practice of subjecting all children admitted to Polinsky to the same “22-point” physical examination that Plaintiff was subjected to within 24 hours of their admittance.[2] See FAC ¶ 30. The FAC states that the County's policy, custom, and practice explicitly prohibited parents from attending the examinations, and that County physicians routinely conducted the examinations without first notifying the children's parents or legal guardians, and without a court order, warrant, or the presence of exigent circumstances. FAC ¶¶ 32-33.

         Plaintiff filed the FAC on February 19, 2016, and requests general damages, attorneys' fees, pre- and post-judgment interest, and any other relief the Court deems just and proper.[3] See FAC.

         Motion to Strike

         Plaintiff moves to strike the Declaration of Jennifer L. Davis (“Davis Declaration”) in its entirety, which Defendant submitted in support of its Opposition to Plaintiff's Motion for Class Certification. Doc No. 65-1 at 2. Plaintiff asserts that the Davis Declaration should be stricken for four reasons: (1) it is untimely; (2) it “conflicts and grossly mischaracterizes Dr. Davis' deposition testimony[;]” (3) it contradicts Defendant's 30(b)(6) designees' testimony, of which Dr. Davis was not designated; and (4) it pertains to merits and not class certification issues. Id.

         “In determining whether a class is to be certified, the [c]ourt looks to the parties' allegations and other material ‘sufficient to form a reasonable judgment on each requirement.'” Parkinson v. Hyundai Motor America, 258 F.R.D. 580, 599 (C.D. Cal. 2008) (quoting Blackie v. Barrack, 524 F.2d 891, 901 (9th Cir. 1975)). District Courts may consider all material evidence submitted by the parties and need not address the ultimate admissibility of evidence proffered by the parties. Gonzalez v. Millard Mall Servs. Inc., 281 F.R.D. 455, 459 (S.D. Cal. 2012); see also Blackie v. Barrack, 524 F.2d 891, 901 (9th Cir. 1975); Keilholtz v. Lennox Hearth Prods., 268 F.R.D. 330, 337 n.3 (N.D. Cal. 2010) (“On a motion for class certification, the Court may consider evidence that may not be admissible at trial.”); Arredondo v. Delano Farms Co., 301 F.R.D. 493, 505 (E.D. Cal. 2014). As another court in this district has explained:

Since a motion to certify a class is a preliminary procedure, courts do not require strict adherence to the Federal Rules of Civil Procedure or the Federal Rules of Evidence. See Eisen v. Carlisle and Jacquelin, 417 U.S. 156, 178 (1974) (The class certification procedure “is not accompanied by the traditional rules and procedures applicable to civil trials.”). At the class certification stage, “the court makes no findings of fact and announces no ultimate conclusions on Plaintiffs' claims.” Alonzo v. Maximus, Inc., 275 F.R.D. 513, 519 (C.D. Cal. 2011) (quoting Mazza v. Am. Honda Motor Co., 254 F.R.D. 610, 616 (C.D. Cal. 2008)). Therefore, the Court may consider inadmissible evidence at the class certification stage. Keilholtz v. Lennox Hearth Prods., Inc., 268 F.R.D. 330, 337 n.3 (N.D. Cal. 2010). “The court need not address the ultimate admissibility of the parties' proffered exhibits, documents and testimony at this stage, and may consider them where necessary for resolution of the [Motion for Class Certification].” Alonzo, 275 F.R.D. at 519.

Gonzalez, 281 F.R.D. at 459. On the other hand, the court “should not abandon admissibility standards entirely at the certification stage, ” Parkinson, 258 F.R.D. at 599, because it must still perform a “rigorous analysis” when determining whether a party has satisfied the burden of establishing compliance with Rule 23. Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350-51 (2011).

         First, Plaintiff asserts the Davis Declaration should be stricken as untimely. Doc. No. 65-1 at 2. In support, Plaintiff cites to this District's Civil Local Rules, which provide that “exhibits must be attached to the document to which they belong” and untimely responses to motions are not to be filed without the consent of the judicial officer assigned to the case. Id. at 2-3 (citing Civ. L.R. 5.1.e; Civ. L.R. 7.1.f.3.b; Civ.L.R. 5.1.f; Civ. L.R. 7.1.e.7). Plaintiff explains that the Davis Declaration was supposed to be filed on or before July 7, 2017, along with Defendant's opposition, but was not filed until July 10, 2017. Id. at 3 (citing Doc. No. 56); see Doc. No. 64-1 (“Davis Decl.”). The Court finds that filing the Davis Declaration three days late is insufficient to strike the entirety of the declaration.

         Second, Plaintiff contends topics discussed in the Davis Declaration are irrelevant to class certification and “grossly mischaracterizes Dr. Davis' four-hour deposition testimony.” Doc. No. 65-1 at 3. By way of example, Plaintiff explains that Dr. Davis declares that she “learned how to conduct [the physical exams] during medical school, ” but she testified that she was “trained sort of hands-on” during her deposition. Id. at 3 (citing Doc. No. 65, Exhibit A (“Davis Depo.”) at 90:20-21; Davis Decl. ¶ 3). When asked at her deposition about “specific training with regard to the initial examination, ” Dr. Davis testified that she didn't recall specifics, but shadowed a different doctor for more than a day, and everything she did for two years was training. Id. at 3-4 (citing Davis Depo. at 90:25-91:21-22). However, in reviewing the context of these statements, the Court finds that this is not a gross mischaracterization. In the declaration, Dr. Davis explains she learned how to conduct “routine physical exams” during medical school, and that she “was trained sort of hands-on” with respect to Polinsky's policies or practices and initial examination. Davis Depo at 90:4-91:25; Davis Decl. ¶ 3.

         Plaintiff also explains that the declaration is a gross mischaracterization because Dr. Davis declares that the atmosphere of the examinations are light, that she “blew bubbles . . . and play[ed] with stuffed animals and toys.” Doc. No. 65-1 at 4 (citing Davis Decl. ¶ 4). Plaintiff states that Dr. Davis' deposition testimony characterizes the physical examination as anything but light, specifying that Dr. Davis explained in detail the examination of genitalia. Id. (citing Davis Depo. at 81:18-25, 83:22-23). Again, in reviewing the context of these statements, the Court finds that Dr. Davis declared she created a light atmosphere for the examination to make children feel comfortable and to minimize any anxiety. See Davis. Decl. ¶ 4. The Court finds that this is not a gross mischaracterization of the examinations, despite that the physical examinations could include examination of a child's genitalia. See Davis Depo. at 81:12-25, 83:13-23.

         Third, Plaintiff states that the Davis Declaration should be stricken because it contradicts the deposition testimony of Defendant's Persons Most Knowledgeable (“PMK”) with respect to “Policies, Procedures, Practices & Customs Re: circumstances under which Medical Procedures, Including Examinations, conducted at Polinsky during class period” and “Policies, Procedures, Practices & Customs re: Manner of conducting Medical Procedures, Including Examination, on children at Polinsky during class period.” Doc. No. 65-1 at 4. Specifically, Plaintiff states that PMK witnesses for Defendant testified that the “nursing assessments were the examinations conducted in order to detect contagion” and “to ‘make[] sure the child is not sick or injured and does not have lice or scabies' before the child enters the general population, both of which occur before the doctor's medical examination” and that Dr. Davis' declaration “attempts to proffer the subsequent physical examinations conducted by doctors as providing that function.” Doc. No. 65-1 at 5 (citing Doc. Nos. 65, Exhibits B and C, 63-6; Davis Decl. ¶ 5). The Court finds that this does not contradict PMK witnesses' testimony that the primary purpose of nursing assessments is to detect contagion. Dr. Davis declares that “[t]he primary purpose of the medical exams at Polinsky is to ensure the health of the child. . . . The exams are also helpful to get a medical “baseline” for a child to document his or her health and medical condition in case he or she develops illness or an injury. Also, doctors examine children to ensure they do not have any contagious diseases . . . .” Davis Decl. ¶ 5. Dr. Davis does not contradict testimony that the primary purpose of nursing assessments is to detect contagion; rather, Dr. Davis merely declares that doctors also check for contagion.

         Fourth, Plaintiff moves the Court to strike the Davis Declaration because it “pertains to merits and not class certification.” Doc. No. 65-1 6. However, “[T]he merits of the class members' substantive claims are often highly relevant when determining whether to certify a class. . . . [A] district court must consider the merits if they overlap with the Rule 23(a) requirements.” Ellis v. Costco Wholesale Corp., 657 F.3d 970, 981 (9th Cir. 2011) (citing Dukes, 564 U.S. at 350-52; Hanon v. Dataproducts Corp., 976 F.2d 497, 509 (9th Cir. 1992)). With that said, the Court only examines the merits to the extent necessary to determine whether to certify the putative class and declines to strike the Davis Declaration on this ground. Based on the foregoing, the Court DENIES Plaintiff's motion to strike the Davis Declaration.


         Plaintiff moves the Court for an order certifying this case as a class action for his claims against Defendant arising out of the County's “institution and enforcement of a policy, practice, and custom pursuant to which children held at Polinsky were subjected to head-to-toe investigatory physical examinations” that were conducted without parental consent (or consent of a legal guardian), without any order or warrant for such examinations, and without exigent circumstances. Pl. Mtn at 8. Defendant opposes class certification, contending that Plaintiff has not met the requirements of Federal Rule of Civil Procedure 23 (“Rule 23”). See generally, Oppo.

         1. Legal Standard

         Rule 23 governs the certification of a class. Fed.R.Civ.P. 23. “Parties seeking class certification bear the burden of demonstrating that they have met each of the four requirements of Federal Rule of Civil Procedure 23(a) and at least one of the requirements of Rule 23(b).” Ellis, 657 F.3d at 979-80 (9th Cir. 2011) (citing Zinser v. Accufix Research Inst., Inc., 253 F.3d 1180, 1186 (9th Cir. 2001), amended by 273 F.3d 1266 (9th Cir. 2001)). Rule 23(a) requires a party seeking class certification to establish the following four elements:

(1) that the class is so large that joinder of all members is impracticable (numerosity); (2) that there are one or more questions of law or fact common to the class (commonality); (3) that the named parties' claims are typical of the class (typicality); and (4) that the class representatives will fairly and adequately protect the interests of other members of the class (adequacy of representation).

Id. at 980 (citing Fed.R.Civ.P. 23(a)). The United States Supreme Court has made clear that “Rule 23 does not set forth a mere pleading standard.” Dukes, 564 U.S. at 350. Instead, “[a] party seeking class certification must affirmatively demonstrate his compliance with the Rule-that is, he must be prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact, etc.” Id.

         At the certification stage, district courts must “engage in a ‘rigorous analysis' of each Rule 23(a) factor when determining whether plaintiffs seeking class certification have met the requirements of Rule 23.” Ellis, 657 F.3d at 980. “In many cases, that ‘rigorous analysis' will entail some overlap with the merits of the plaintiff's underlying claim. . . .” Id. (internal citation and quotation omitted). “[T]he merits of the class members' substantive claims are often highly relevant when determining whether to certify a class. More importantly, it is not correct to say a district court may consider the merits to the extent that they overlap with class certification issues; rather, a district court must consider the merits if they overlap with the Rule 23(a) requirements.” Id. at 981 (emphasis in original).

         Once the prerequisites of Rule 23(a) are met, the Court must then determine whether the class action is maintainable under Rule 23(b). “Under Rule 23(b)(3), a class may be certified if the district court ‘finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Vinole v. Countrywide Home Loans, Inc., 571 F.3d 935, 944 (9th Cir. 2009) (quoting Fed.R.Civ.P. 23(b)(3)). A central concern of the Rule 23(b)(3) predominance test is whether “adjudication of common issues will help achieve judicial economy.” Zinser, 253 F.3d at 1189. “The party seeking certification bears the burden of demonstrating that he has met the requirements of Rule 23(b).” Vinole, 571 F.3d at 944 n.9.

         2. Factual Background

         Polinsky opened in 1994 and is the County's emergency shelter for children who have allegedly been physically, sexually, and/or emotionally abused, medically or physically neglected, and/or temporarily have no parent, guardian, or adult caretaker. Pl. Mtn at 11; Doc. No. 60-2, Declaration of Rachele R. Rickert in Support of Plaintiff's Motion for Class Certification (“Rickert Decl.”), Exhibits A ¶ 1.1, B (“Graff Depo.”) at 18:4-5, C (“PMK Hurd Depo.”) at 31:20-23. That year, the County issued a Request for Proposal (“RFP”) to provide physical health services to children at Polinsky. Rickert Decl., Exhibit D. The County, Department of Health Services (“DHS”), UCSD Medical Center (“UCSD”), and Children's Hospital and Health Center (“Rady”)[4] responded to the RFP and were awarded the contract. Pl. Mtn at 11; Rickert Decl., Exhibit F at 1. The County issued a new RFP every five years and each time Rady responded it was awarded the contract either with other entities, or beginning in the late 1990s, as the sole contractor. Pl. Mtn at 11.

         The County Contract[5] governed the administration of Polinsky's medical services and its pertinent provisions did not change during the Class Period. Rickert Decl., Exhibit O (“Hoene Depo.”) at 75:7-76:1; Graff Depo. at 46:16-47:2. Polinsky was required to provide a “[p]re-admission screening, done jointly by County intake social workers and [Rady] medical staff, of all children brought to [Polinsky]” and within 24 to 72 hours, Polinsky was to provide a “health assessment” of the minor's admission to Polinsky. Pl. Mtn at 12; County Contract ¶ 3.1.2. These pre-admission screenings were often referred to as “nursing assessments, ” and the “health assessments” were commonly referred to as a physician's “medical exam.” Pl. Mtn at 12, Rickert Decl., Exhibit P (“PMK Cleland Depo.”) at 24:11 (referring to the pre-admission screening as a nursing assessment); PMK Wilson Depo. at 46:11-16. The health assessment consisted of a physician's medical examination and the physician's documentation of any injuries discovered. PMK Wilson Depo. at 48:14-49:16. The County relied on general juvenile court orders for authorization to conduct the medical examinations. Pl. Mtn at 13; PMK ...

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