United States District Court, S.D. California
D.C., a minor by and through his Guardian Ad Litem, Helen Garter, on behalf of himself and all others similarly situated, Plaintiff,
COUNTY OF SAN DIEGO; JESSIE POLINSKY CHILDREN'S CENTER; and SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Defendants.
ORDER: DENYING PLAINTIFF'S MOTION TO STRIKE; AND
[DOC. NO. 65-1] DENYING MOTION FOR CLASS CERTIFICATION [DOC.
MICHAEL M. ANELLO, UNITED STATES DISTRICT JUDGE
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 Diegofiled 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.
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.
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.
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.
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. 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
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. See FAC.
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.
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).
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.
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.
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.
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.
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
FOR CLASS CERTIFICATION
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.
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.
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
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.
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”) 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.
County Contract 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 ...