DOCKET NO. 20-56111

DOCKET NO. 20-56111

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

__________________________________________________________________

SARA M. KELLEY; TERESA L. SMITH

Plaintiffs/Appellants,

v.

SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY; JESSICA AYALA; VALERIE HILLS; MARGO FUDGE; MYRNA MURILLO;

ALICIA ROGERS; WENDY CURIEL; VALESHA BULLOCK; NICK MACCHIONE,

Defendants/Appellees.

_________________________________________________________________

On Appeal from the United States District Court for the Southern District of California Case No. 3:19-cv-01404-LAB-DEB

Honorable Larry Alan Burns ______________________________________________

APPELLEES’ ANSWERING BRIEF

JEFFREY MIYAMOTO, Senior Deputy (State Bar No. 185587) TALIA EDELMAN, Deputy (State Bar No. 332627) Office of County Counsel, County of San Diego 1600 Pacific Highway, Room 355 San Diego, California 92101 Telephone: (619) 531-6259; Facsimile: (619) 531-6005 Email: [email protected]; [email protected] Attorneys for Defendants/Appellees County of San Diego, Jessica Ayala, Valerie Hills, Margo Fudge, Myrna Murillo, Alicia Rogers, Wendy Curiel, Valesha Bullock and Nick Macchione

Case: 20-56111, 05/24/2021, ID: 12122688, DktEntry: 19, Page 1 of 75

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TABLE OF CONTENTS Page(s)

INTRODUCTION AND SUMMARY OF THE ARGUMENT .............................. 1

STATEMENT OF JURISDICTION ........................................................................ 2

ISSUES PRESENTED ............................................................................................. 2

STATEMENT OF THE CASE ................................................................................ 4

I. FACTUAL BACKGROUND ............................................................. 4

A. The County Defendants Initially Supported Plaintiffs’ De Facto Parenthood Status, and Helped Plaintiffs with the Adoption Process ...................................................................... 4

B. Plaintiffs’ Relationship with the County Later Soured, and So Did Their Relationship with Teenager.......................... 5

C. The Social Workers Initiated State Juvenile Court Proceedings to Remove Teenager from Plaintiffs’ Home, and Plaintiffs Did Not Object ................................................... 7

D. Teenager Testified that He No Longer Wished to Live with Plaintiffs, and the Juvenile Court Terminated Plaintiffs’ De Facto Parental Status .......................................... 8

E. The California Court of Appeal Affirmed the Juvenile Court’s Decision, and Found No Evidence of Bias ................ 10

II. PROCEDURAL HISTORY BELOW ............................................... 11

STANDARD OF REVIEW ................................................................................... 14

ARGUMENT ......................................................................................................... 14

I. PLAINTIFFS’ CLAIMS ARE BARRED, IN PART, BY THE ROOKER-FELDMAN DOCTRINE, ISSUE PRECLUSION, AND WAIVER ................................................................................. 14

A. Under the Rooker-Feldman Doctrine, the District Court Lacked Jurisdiction to Hear Several of Plaintiffs’ Claims Because They Amount to a De Facto Appeal of a State Court Decision ........................................................................ 14

B. The Doctrine of Issue Preclusion Further Bars Plaintiffs’ Claims ..................................................................................... 17


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C. Plaintiffs Have Waived Any Objection to Teenager’s Removal .................................................................................. 20

II. THE DISTRICT COURT DID NOT ERR IN DISMISSING PLAINTIFFS’ FOURTEENTH AMENDMENT CLAIMS (FIRST CAUSE OF ACTION) ......................................................... 21

A. Plaintiffs Failed to State an Equal Protection Claim Because They Did Not Plausibly Allege That They Received Disparate Treatment Due to Their Sexual Orientation ................................................................................ 21

B. Plaintiffs Failed to State a Substantive Due Process Claim Because They Had No Liberty Interest in Teenager’s Custody................................................................... 23

1. Plaintiffs had no fundamental right to familial association because they were Teenager’s de facto, foster, or prospective adoptive parents and educational rights holders ............................................. 24

2. Defendants did not interfere with Plaintiffs’ fundamental rights to marital privacy or family planning by prohibiting them from discussing certain topics with Teenager ......................................... 26

3. Plaintiffs cannot state a claim based on an alleged violation of the Ninth Amendment because it is not an independent source of rights .................................... 27

C. California Family Code Section 8602 Passes Constitutional Muster Because it Bears a Rational Relationship to a Legitimate Governmental End .................... 28

D. Defendants Did Not Violate Plaintiffs’ Fundamental Rights by Complying with California Family Code Section 8602 and Respecting Teenager’s Lack of Consent to be Adopted by Plaintiffs ....................................... 30

III. THE DISTRICT COURT DID NOT ERR IN DISMISSING PLAINTIFFS’ VOID FOR VAGUENESS CLAIM (SECOND CAUSE OF ACTION) BECAUSE THE STATUTORY SCHEME GOVERNING THE RIGHTS OF FOSTER CHILDREN DOES NOT REGULATE PROTECTED


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SPEECH AND IS NOT BEYOND THE UNDERSTANDING OF ORDINARY PEOPLE ................................................................ 32

IV. THE DISTRICT COURT DID NOT ERR IN DISMISSING THE FIRST AMENDMENT RETALIATION CLAIM (THIRD CAUSE OF ACTION) BECAUSE PLAINTIFFS FAILED TO SHOW THAT DEFENDANTS ENGAGED IN RETALIATORY CONDUCT TO CHILL PLAINTIFFS’ CONSITUTIONALLY-PROTECTED ACTIVITY ......................... 37

V. THE DISTRICT COURT DID NOT ERR IN DISMISSING THE FOURTH CAUSE OF ACTION FOR JUDICIAL DECEPTION BECAUSE PLAINTIFFS FAILED TO PLAUSIBLY ALLEGE THAT DEFENDANTS PRESENTED DELIBERATELY FABRICATED EVIDENCE THAT ALTERED THE JUVENILE COURT’S DECISIONS .................... 39

VI. THE DISTRICT COURT DID NOT ERR IN DISMISSING PLAINTIFFS’ UNLAWFUL REMOVAL CLAIM (FIFTH CAUSE OF ACTION) BECAUSE THERE WAS NO VIOLATION OF ANY FEDERAL DUE PROCESS RIGHTS ....... 42

VII. EVEN IF THERE WAS A CONSTITUTIONAL VIOLATION (THERE WAS NOT), THE INDIVIDUAL DEFENDANTS ARE STILL ENTITLED TO QUALIFIED IMMUNITY ................ 44

VIII. THE DISTRICT COURT DID NOT ERR IN DISMISSING THE SIXTH CAUSE OF ACTION FOR GOVERNMENT LIABILITY BECAUSE PLAINTIFFS FAILED TO PLAUSIBLY ALLEGE THAT THE COUNTY HAD AN UNCONSTITUTIONAL POLICY OF RETALIATION ................. 46

IX. THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION BY TAKING JUDICIAL NOTICE OF THE JUVENILE COURT RECORDS AND PLACING THE RECORDS UNDER SEAL ............................................................... 50

X. THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION BY DISMISSING PLAINTIFFS’ FEDERAL CLAIMS WITHOUT LEAVE TO AMEND .................................... 51

XI. THE DISTRICT COURT DID NOT ERR IN DISMISSING PLAINTIFFS’ STATE LAW CAUSES OF ACTION (SEVENTH, EIGHTH, NINTH, AND TENTH) .............................. 52


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A. The Seventh Cause of Action Fails Because Defendants Did Not Violate the Bane Act ................................................. 53

B. The Eighth Cause of Action Also Fails Because the County Is Not Liable for Common Law Misrepresentation .................................................................... 54

C. The Ninth Cause of Action Was Properly Dismissed Because Plaintiffs Failed to State a Cause of Action for Defamation .............................................................................. 55

D. The Tenth Cause of Action Was Also Properly Dismissed Because Plaintiffs Failed to State a Claim for Intentional Infliction of Emotional Distress ........................... 57

E. The County Is Not Directly or Vicariously Liable for Alleged Violations of State Law ............................................. 59

CONCLUSION ..................................................................................................... 60

CERTIFICATE OF BRIEF COMPLIANCE ........................................................ 61

STATEMENT OF RELATED CASES ................................................................ 62


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TABLE OF AUTHORITIES

Cases Page(s)

Ae Ja Elliot-Park v. Manglona, 592 F.3d 1003 (9th Cir. 2010) .......................................................................... 22

Acosta-Huerta v. Estelle, 7 F.3d 139 (9th Cir. 1992) ................................................................................. 45

Armour v. City of Indianapolis, 566 U.S. 673 (2012) .......................................................................................... 29

Ashcroft v. al-Kidd, 563 U.S. 731 (2011) .......................................................................................... 45

Ashcroft v. Iqbal, 556 U.S. 662 (2009) ...................................................................................... 14, 54

Backlund v. Barnhart, 778 F.2d 1386 (9th Cir. 1985) ..................................................................... 25, 26

Beltran v. Santa Clara Cty., 389 F. App’x 679 (9th Cir. 2010) .................................................... 40, 41-42, 42

Benavidez v. Cty. of San Diego, 993 F.3d 1134 (9th Cir. 2021) ............................................................... 40, 48, 49

Bianchi v. Rylaarsdam, 334 F.3d 895 (9th Cir. 2003) ............................................................................. 17

Bostock v. Clayton County 140 S. Ct. 1731 (2020) ...................................................................................... 22

Boutilier v. INS, 387 U.S. 118 (1967) .......................................................................................... 35

Brewster v. Bd. of Educ. of the Lynwood Unified Sch. Dist., 149 F.3d 971 (9th Cir. 1998) ............................................................................. 23

Butler v. Elle, 281 F.3d 1014 (9th Cir. 2002) ........................................................................... 40


vi

Cachil Dehe Band of Wintun Indians v. California, 547 F.3d 962 (9th Cir. 2008) ............................................................................. 53

Cameron v. Craig, 713 F.3d 1012 (9th Cir. 2013) ........................................................................... 53

Capp v. Cty. of San Diego, 940 F.3d 1046 (9th Cir. 2019) ............................................................... 37, 38, 39

Carvalho v. Equifax Info. Servs., LLC, 629 F.3d 876 (9th Cir. 2010) ............................................................................. 52

Cir. For Auto Safety v. Chrysler Group, LLC, 809 F.3d 1092 (2016) ........................................................................................ 50

City of Canton, Ohio v. Harris, 489 U.S. 378 (1989) .................................................................................... 48, 49

Cochran v. Herzog Engraving Co., 155 Cal. App. 3d 405 (1984) ............................................................................. 55

Colautti v. Franklin, 439 U.S. 379 (1979) .......................................................................................... 32

Cooper v. Ramos, 704 F.3d 772 (9th Cir. 2012) ............................................................................. 15

Cornejo v. Cty. of San Diego, 504 F.3d 853 (9th Cir. 2007) ............................................................................. 42

Cty. of L.A. v. Sup. Ct., 102 Cal. App. 4th 627 (2002) ............................................................................ 55

Doe & Assocs. Law Offices v. Napolitano, 252 F.3d 1026 (9th Cir. 2001) ........................................................................... 15

Doe v. Mann, 415 F.3d 1038 (9th Cir. 2005) ........................................................................... 15

Dougherty v. City of Covina, 654 F.3d 892 (9th Cir. 2011) ............................................................................. 14

Earth Island Inst. v. Carlton, 626 F.3d 462 (9th Cir. 2010) ............................................................................. 50


vii

Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280 (2005) .......................................................................................... 15

Ioane v. Hodges, 903 F.3d 929 (9th Cir. 2018) ............................................................................. 45

F.C.C. v. Beach Commc’ns, Inc., 508 U.S. 307 (1993) .......................................................................................... 29

Forbes v. Napolitano, 236 F.3d 1009 (9th Cir. 2000) ..................................................................... 32, 36

Foti v. City of Menlo Park, 146 F.3d 629 (9th Cir. 1998) ............................................................................. 36

Friedman v. AARP, Inc., 855 F.3d 1047 (9th Cir. 2017) ........................................................................... 28

Gammoh v. City of La Habra, 395 F.3d 1114 (9th Cir. 2005) ........................................................................... 35

Gensburg v. Miller, 31 Cal. App. 4th 512 (1994) .............................................................................. 27

Gilbert v. Sykes, 147 Cal. App. 4th 13 (2007) .............................................................................. 56

Grimes v. Alameda Cty. Soc. Servs., No. C 11-02977 WHA, 2011 U.S. Dist. LEXIS 120259 (N.D. Cal. Oct. 18, 2011) ......................... 16-17

Griswold v. Connecticut, 381 U.S. 479 (1965) .................................................................................... 26, 27

Hardwick v. Cty. of Orange, 844 F.3d 1112 (9th Cir. 2017) ........................................................................... 41

Hillblom v. Cty. of Fresno, 539 F. Supp. 2d 1192 (E.D. Cal. 2008) ............................................................. 60

Hughes v. Pair, 46 Cal. 4th 1035 (2009) ............................................................................... 57, 58

In re B.F., 190 Cal. App. 4th 811 (2010) ............................................................................ 24


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In re Josiah S., 102 Cal. App. 4th 403 (2002) ............................................................................ 20

In re Midland Nat’l Life Ins. Co. Annuity Sales Practices Litig., 686 F.3d 1115 (9th Cir. 2012) ........................................................................... 50

In re P.L., 134 Cal. App. 4th 1357 (2005) .......................................................................... 25

Pearson v. Callahan, 555 U.S. 223 (2009) .......................................................................................... 44

In re Santos Y., 92 Cal. App. 4th 1274 (2001) ............................................................................ 25

In re Sarah M., 22 Cal. App. 4th 1642 (1994) ............................................................................ 28

Jacobson v. Schwarzenegger, 357 F. Supp. 2d 1198 (C.D. Cal. 2004) ................................................. 55-56, 56

Johnson v. Riverside Healthcare System, LP, 534 F.3d 1116 (9th Cir. 2008) ........................................................................... 14

Julian v. Mission Cmty. Hosp., 11 Cal. App. 5th 360 (2017) .................................................................. 53-54, 54

Kasdan v. Cty. of L.A., No. CV 12-06793 GAF (JEMx), 2014 U.S. Dist. LEXIS 165098 (C.D. Cal. Nov. 24, 2014) ................ 19

King v. State of California, 242 Cal. App. 4th 265 (2015) ............................................................................ 53

Kirkpatrick v. Cty. of Washoe, 843 F.3d 784 (9th Cir. 2016) ............................................................................. 43

Kougasian v. TMSL, Inc., 359 F.3d 1136 (9th Cir. 2004) ........................................................................... 39

Lacy-Curry v. Alameda Cty. Soc. Servs. Agency, 262 F. App’x. 9 (9th Cir. 2007) ................................................................... 15-16

Lawler v. Montblanc N. Am., LLC, 704 F.3d 1235 (9th Cir. 2013) ..................................................................... 58-59


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Le Parc Cmty. Assn. v. Workers’ Comp. Appeals Bd., 110 Cal. App. 4th 1161 (2003) .......................................................................... 18

Lee v. City of L.A., 250 F.3d 668 (9th Cir. 2001) ............................................................................. 50

Lozman v. City of Riviera Beach,

138 S. Ct. 1945 (2018) ...................................................................................... 48

Meza v. Meza, No. SA CV 12-01777-GAF (VBK), 2013 U.S. Dist. LEXIS 77225 (C.D. Cal. May 2, 2013) ..................... 59

Miller v. California, 355 F.3d 1172 (9th Cir. 2004) ......................................................... 25, 38, 43, 45

Miller v. Fairchild Indus., Inc., 797 F.2d 727 (9th Cir. 1986) ............................................................................. 46

Monell v. Dep’t of Soc. Servs, 436 U.S. 658 (1978) .......................................................................................... 48

Noel v. Hall, 341 F.3d 1148 (9th Cir. 2003) ...................................................................... 15, 16

Nuveen Mun. High Income Opportunity Fund v. City of Alameda, 730 F.3d 1111 (9th Cir. 2013) ........................................................................... 55

O’Doan v. Sanford, 991 F.3d 1027 (9th Cir. 2021) ........................................................................... 44

Obergefell v. Hodges, 576 U.S. 644 (2015) .................................................................................... 24, 29

Palmore v. Sidoti,

466 U.S. 429 (1984) ........................................................................................... 31

Pirelli Armstrong Tire Corp. Retiree Medical Benefits Trust v. Walgreen Co., 631 F.3d 436 (9th Cir. 2011) ....................................................................... 40-41

R.H. v. Superior Court, 209 Cal. App. 4th 364 (2012) ...................................................................... 25, 43

Ragan v. Cty. of Humboldt Dep’t of Health & Human Servs., No. 16-cv-05580-RS, 2017 U.S. Dist. LEXIS 31560 at *14 (N.D. Cal. Mar. 6, 2017) ................. 42-43


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Ringler Associates Inc. v. Maryland Casualty Co., 80 Cal. App. 4th 1165 (2000) ...................................................................... 55, 56

S.B. v. Cty. of San Diego, 864 F.3d 1010 (9th Cir. 2017) ........................................................................... 44

White v. Pauly, 137 S. Ct. 548 (2017) .................................................................................. 44, 46

Sample v. Monterey Cty. Family & Children Servs., No. C09-01005 HRL, 2009 U.S. Dist. LEXIS 69260 (N.D. Cal. Aug. 7, 2009) .................................. 17

Sampson v. Cty. of L.A., 974 F.3d 1012 (9th Cir. 2019) ........................................................................... 39

San Diego County Gun Rights Committee v. Reno, 98 F.3d 1121 (9th Cir. 1996) ............................................................................. 27

San Diego Police Officers Ass’n v. San Diego City Employees’ Retirement System, 568 F.3d 725 (9th Cir. 2009) ............................................................................. 19

Sandoval v. Cty. of Sonoma, No. 11-cv-05817-TEH, 2016 U.S. Dist. LEXIS 18561 (N.D. Cal. Feb. 16, 2016) ................................. 60

Sanford v. MemberWorks, Inc., 625 F.3d 550 (9th Cir. 2010) ....................................................................... 51-52

Serrano v. Francis, 345 F.3d 1071 (9th Cir. 2003) ........................................................................... 21

Smith v. Jackson, 84 F.3d 1213 (9th Cir. 1996) ............................................................................. 50

Squaw Valley Dev. Co. v. Goldberg, 375 F.3d 936 (9th Cir. 2004) ............................................................................. 21

Takahashi v. Board of Trustees of Livingston Union School Dist., 783 F.2d 848 (9th Cir. 1986) ............................................................................. 17

Tom Jones Enters., Ltd. v. Cty. of L.A., 212 Cal. App. 4th 1283 (2013) .......................................................................... 54

Trevino v. Gates, 99 F.3d 911 (9th Cir. 1996) ......................................................................... 48, 49


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Tucson Woman’s Clinic v. Eden, 379 F.3d 531 (9th Cir. 2004) ................................................................. 32, 34, 35

United States ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244 (9th Cir. 1992) ............................................................................. 51

Villegas v. Gilroy Garlic Festival Ass’n, 541 F.3d 950 (9th Cir. 2008) ............................................................................. 47

Watson v. Cty. of Santa Clara, No. C-06-04029 RMW, 2010 U.S. Dist. LEXIS 50019 (N.D. Cal. May 19, 2010) ................................ 59

West v. Atkins, 487 U.S. 42 (1988) ............................................................................................ 21

Whittaker Corp. v. Execuair Corp., 953 F.2d 510 (9th Cir. 1992) ............................................................................. 47

Wige v. City of L.A., 713 F.3d 1183 (9th Cir. 2013) ........................................................................... 18

Wittman v. Saenz, 108 F. App’x 548 (9th Cir. 2004) ...................................................................... 16

Yamada v. Snipes, 786 F.3d 1182 (9th Cir. 2015) ........................................................................... 33

Statutes

28 U.S.C. Section 1257 ...................................................................................................... 14 Section 1738 ...................................................................................................... 17

42 U.S.C. Section 1983 .................................................................................... 11, 21, 47, 49

Cal. Civ. Code Section 47 .......................................................................................................... 59 Section 51 .......................................................................................................... 52 Section 52 .......................................................................................................... 53

Cal. Gov’t Code Section 815 .................................................................................................. 54, 60 Section 815.2 ............................................................................................... 59, 60


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Section 818.8 ..................................................................................................... 55 Sections 820.2, 821.6 ........................................................................................ 59

Cal. Health & Saf. Code Section 1530.5 .................................................................................................. 26

Cal. Welf. & Inst. Code Section 202 ........................................................................................................ 30 Section 361 .......................................................................................................... 5 Section 366.26 ................................................................. 5, 8, 11, 25, 28, 30, 43 Section 827 ........................................................................................................ 50 Section 16000 .................................................................................................... 38 Section 16000.1 .................................................................................... 35, 36, 46 Section 16001.9 .......................................................................................... 33, 34 Section 16519.61 .............................................................................................. 35

Section 16519.5 .............................................................................. 33, 36, 38, 46

California Family Code Section 8602 ................................................................... ii, 23, 27, 28, 30, 32, 45 Section 16001.9 .................................................................................... 33, 34, 35 Section 366.26 .................................................................................................. 30 Section 818.8 of the California Government Code .......................................... 55 Section 8602 .......................................................................................... 28, 29, 30

Rules

Federal Rule of Appellate Procedure Rule 6 ................................................................................................................ 25 Rule 9 ................................................................................................................ 40 Rule 12 .............................................................................................................. 14 Rule 28-2 ........................................................................................................... 62 Rule 32 .............................................................................................................. 61

California Rule of Court Rule 5.502 ......................................................................................................... 26 Rule 5.534 ........................................................................................................... 5

Other

Cal. Dept. of Social Services, Resource Family Approval Written Directives Version 7 (eff. Jan. 13, 2021)

Section 11-08 .................................................................................................... 33


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INTRODUCTION AND SUMMARY OF THE ARGUMENT

Social workers at the County of San Diego supported Plaintiffs’ efforts to

adopt Teenager for several months. However, after reports of conflicts between

Plaintiffs and Teenager—which culminated in Teenager telling Plaintiffs he no

longer wanted to live with them—the social workers initiated legal process in state

Juvenile Court to terminate Plaintiffs’ de facto parental status. The social workers

served notice, Plaintiffs appeared in Juvenile Court, and Plaintiffs declined to

object to the removal. Teenager testified in Juvenile Court that he did not feel any

bond with Plaintiffs and did not want to have any involvement with them, and the

Juvenile Court terminated Plaintiffs’ status as de facto parents.

Plaintiffs appealed to the California Court of Appeal, and the Court of

Appeal affirmed. It agreed that the Juvenile Court’s order was in Teenager’s best

interests. Teenager “had an emotional falling out with [Plaintiffs], he no longer

trusted them, they were not meeting his daily needs, and he refused to have further

contact with them.” 2-SER-50. The Court of Appeal found that there was no

evidence of bias by Defendants, and instead noted that “the Agency was highly

supportive of [Plaintiffs] and their adoption efforts until [Teenager] himself

became uncomfortable with the proposed adoption.” 2-SER-53.

Plaintiffs then turned to the District Court, but the District Court granted

Defendants’ Motions to Dismiss Plaintiffs’ First Amended Complaint, without


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leave to amend. For the reasons explained below, the District Court’s decision was

correct. Plaintiffs failed to state a plausible claim against any of the Defendants,

and the First Amended Complaint and all of its causes of action are further barred

by numerous defenses.

STATEMENT OF JURISDICTION

Defendants agree with Plaintiffs’ jurisdictional statement.

ISSUES PRESENTED

I. Did the District Court have grounds to dismiss Plaintiffs’ claims

related to the issue of Teenager’s removal (first, third, fourth and fifth causes of

action) pursuant to (i) the Rooker-Feldman doctrine, (ii) the doctrine of issue

preclusion, and (iii) waiver?

II. Did the District Court err in dismissing Plaintiffs’ Fourteenth

Amendment equal protection and due process claims (first cause of action) on the

grounds that (i) Plaintiffs failed to show that they were treated differently based on

their sexual orientation; and/or (ii) no legally-recognized parent-child relationship

was formed between Plaintiffs and Teenager?

III. Did the District Court err in dismissing Plaintiffs’ void for vagueness

claim (second cause of action) because the statutory scheme regulating the rights

of children in foster care is not beyond the understanding of average people?


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IV. Did the District Court err in dismissing Plaintiffs’ First Amendment

retaliation claim (third cause of action) on the grounds that Plaintiffs did not

sufficiently allege that Defendants’ actions would chill the expression of a person

of ordinary firmness?

V. Did the District Court err in dismissing Plaintiffs’ judicial deception

claim (fourth cause of action) on the grounds that Plaintiffs did not sufficiently

allege that (i) Defendants presented deliberately fabricated evidence and (ii) that

any such evidence altered the Juvenile Court’s decisions?

VI. Did the District Court err in dismissing Plaintiffs’ unlawful removal

claim under the Fourteenth Amendment (fifth cause of action) because (i) Plaintiffs

had no liberty interest in custody of Teenager and/or (ii) Plaintiffs received and

availed themselves of due process rights in the Juvenile Court proceedings?

VII. Even if Plaintiffs arguably alleged a constitutional violation, are the

individual Defendants still entitled to qualified immunity on the federal civil rights

claims because there was no clearly established precedent that any of the

Defendants’ conduct violated Plaintiffs’ statutory or constitutional rights?

VIII. Did the District Court err in dismissing Plaintiffs’ Monell claim (sixth

cause of action) against the County when Plaintiffs failed to sufficiently allege that

a formal County policy or longstanding custom or practice was the “moving force”

behind any alleged constitutional violation?


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IX. Did the District Court abuse its discretion in taking judicial notice of

the Juvenile Court records and placing the records under seal?

X. Did the District Court err in dismissing Plaintiffs’ federal claims

without leave to amend because Plaintiffs cannot allege facts that contradict the

state court rulings?

XI. Did the District Court err in dismissing Plaintiffs’ state law claims for

violation of the Bane Act against individual Defendants (seventh cause of action),

for “misrepresentation” against the County (eighth cause of action), and for

defamation and intentional infliction of emotional distress (ninth and tenth causes

of action) against the County and individual Defendants without prejudice?

STATEMENT OF THE CASE1

I. FACTUAL BACKGROUND

A. The County Defendants Initially Supported Plaintiffs’ De Facto Parenthood Status, and Helped Plaintiffs with the Adoption Process.

Sara Kelley (“Kelley”) and Teresa Smith (“Smith”) (collectively

“Plaintiffs”), a married couple, became licensed foster parents in 2015. ER-42, 45

(FAC ¶¶ 6, 22). In March 2017, the County placed a foster child (“Teenager”) in

their home. ER-42 (FAC ¶ 7). At this time, Plaintiffs signed a “Quality Parenting

1 As this appeal arises from a 12(b)(6) order, Plaintiffs’ allegations are taken

as true.


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Initiative Partnership Agreement” that articulated the expectations of foster parents

in providing for a foster child. ER-74 (FAC ¶ 149). The state Juvenile Court

granted Plaintiffs de facto parent status, meaning they had day-to-day

responsibility for the care of Teenager, as well as educational rights to make

educational decisions for Teenager. ER-42, 26 (FAC ¶¶ 7, 25). See Cal. Rules of

Ct., R. 5.534(f), 5.502(10); Cal. Welf. & Inst. Code § 361. After six months of

caring for Teenager, the Juvenile Court deemed Plaintiffs prospective adoptive

parents. ER-57 (FAC ¶ 52). See Welf. & Inst. Code § 366.26(n)(3).

Plaintiffs wanted to adopt Teenager. ER-42, 46 (FAC ¶¶ 7, 25). From September

2017 to March 2018, Defendant Jessica Ayala (“Ayala”), the social worker

assigned to Teenager’s case, assured Plaintiffs she was preparing the adoption

documents. ER-47 (FAC ¶ 26).

B. Plaintiffs’ Relationship with the County Later Soured, and So Did Their Relationship with Teenager.

On March 5, 2018, at a status review hearing, Kelley told the Juvenile Court

judge that she was concerned about the County’s delays in processing the adoption

paperwork. ER-47 (FAC ¶ 27). Plaintiffs allege that after that hearing, Ayala

began retaliating against them by delaying the adoption and ridiculing, chastising,

threatening, and criticizing Kelley. ER-47 (FAC ¶¶ 28, 29).

In the months following March 2018, Teenager’s relationship with Plaintiffs

deteriorated. 2-SER-45. Teenager had several arguments with Plaintiffs


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surrounding the topic of his adoption and he was stressed by these and other

events. 2-SER-45–46. On May 24, 2018, Ayala informed Plaintiffs that the

adoption had been placed on hold. ER-47 (FAC ¶ 31). On June 5, 2018, during a

meeting between Plaintiffs, Teenager, and Ayala, Ayala was allegedly “hostile,”

and shouted at Kelley, telling her that she was reminded of “what she did in court.”

ER-47 (FAC ¶ 32). Plaintiffs allege that the next day, Ayala filed an allegation

with the County that Kelley had made an inappropriate statement. ER-48 (FAC ¶

33). Plaintiffs claim she did so to harass Plaintiffs. ER-48 (FAC ¶ 33).

On June 17, 2018, after having various disagreements with Plaintiffs,

Teenager (who was fourteen years old at the time) told Plaintiffs he no longer

wanted to live with them and that “he wanted a mom and dad.” 2-SER-12. That

day, Ayala first met with Teenager and then with Plaintiffs, to ask what had

happened. ER-49–50 (FAC ¶ 35). Ayala consulted with her supervisor, then told

Plaintiffs to suspend discussing the topics of adoption and sexual orientation with

Teenager. ER-43, 50 (FAC ¶¶ 9, 35). On that day, Teenager left with Ayala and

stayed at a friend’s house until he was placed in respite care. ER-50 (FAC ¶¶ 35,

36). The respite program allows another caregiver to temporarily care for a foster

child under certain circumstances and is provided at no cost to the foster parent.

ER-18, 22.


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C. The Social Workers Initiated State Juvenile Court Proceedings to Remove Teenager from Plaintiffs’ Home, and Plaintiffs Did Not Object.

On June 20, 2018, Ayala and Defendant Valerie Hills (“Hills”) served

Plaintiffs with a “Notice of Intent to Remove” Teenager from Plaintiffs’ home.

ER-51 (FAC ¶ 39). Plaintiffs allege the notice contained false statements that were

made with malice. ER-51 (FAC ¶ 39). On June 22, 2018, Kelley emailed the

County asking to pick up Teenager, and Ayala replied that it was no longer

appropriate for Teenager to live with Plaintiffs. ER-51–52 (FAC ¶ 40). Smith

then emailed the director of the County’s Health and Human Services Agency,

Defendant Nick Macchione (“Macchione”), requesting he review the situation, but

he did not reply. ER-52 (FAC ¶ 40).

On June 27, 2018, Plaintiffs filed a lengthy objection and denial to the

County’s “Notice of Intent to Remove” in Juvenile Court. ER-53 (FAC ¶ 42); 2-

SER-8–26. However, Plaintiffs acknowledge they “did not object to the removal

itself” (ER-53 (FAC ¶ 42); 2-SER-9, 10, 11, 25, 28), but only objected to Ayala’s

statements about them. ER-53 (FAC ¶ 42). In response to a statement in the

Notice that said Kelley had accused Teenager of not wanting to be adopted by

women, Plaintiffs raised the issue of discrimination based on their status as a same-

sex couple. 2-SER-20–22.


8

D. Teenager Testified that He No Longer Wished to Live with Plaintiffs, and the Juvenile Court Terminated Plaintiffs’ De Facto Parental Status.

On July 18, 2018, the Juvenile Court held a special hearing on Plaintiffs’

objection to the “Notice of Intent to Remove” Teenager. ER-53 (FAC ¶ 43); 2-

SER-28. Kelley, an attorney, appeared at the hearing on behalf of Plaintiffs. 2-

SER-28. The Juvenile Court made the following specific findings in its Order:

THE COURT FINDS:

The Court has read and considered the Objection to Removal and

formally acknowledges it.

Ms. Kelley and Ms. Smith are not objecting to the removal of the

minor . . .

2-SER-28.

Following his stay in respite care, Teenager began a new placement in the

foster home of an opposite-sex couple in mid July 2018. ER-43 (FAC ¶ 12); 2-

SER-46.

On September 6, 2018, the Juvenile Court held a full evidentiary hearing to

consider whether to terminate Plaintiffs’ status as Teenager’s de facto parents and

educational rights holders. ER-54–55 (FAC ¶ 46); 2-SER-40–41. At the hearing,

Kelley made an opening statement, questioned witnesses, including Teenager and

Ayala, and offered testimony. Id. Teenager testified that “he did not want


9

[Plaintiffs] to continue being involved in his dependency case, did not feel any

bond with them, and he was not comfortable with them making his education-

related decisions.” 2-SER-47–48. At the conclusion of the hearing, the Juvenile

Court terminated Plaintiffs’ status as de facto parents and educational rights

holders because it found that it was in Teenager’s best interest due to the change in

circumstances. ER-54–55 (FAC ¶ 46); 2-SER-40. The Court also ordered

Teenager’s placement in his new foster home. 2-SER-41.

Plaintiffs decided to appeal the Juvenile Court’s decision and met with

Defendants Wendy Curiel (“Curiel”) and Margo Fudge (“Fudge”) in October 2018

to discuss the appeal and allegations made against them. ER-55 (FAC ¶ 47).

Plaintiffs allege that sometime in the preceding months, Ayala filed allegations

against them for making inappropriate comments, including using the word “gay”

inappropriately. ER-43–44, 51 (FAC ¶¶ 13, 38). Following an investigation by

Defendant Myrna Murillo (“Murillo”), the Agency found that the allegations were

substantiated. ER-43–44 (FAC ¶ 13).

Specifically, Plaintiffs allege that Murillo made disrespectful comments

about Kelley’s sexual orientation. ER-51 (FAC ¶ 38). During the investigation,

Plaintiffs were also told that they had made “general personal rights violations”

against Teenager. ER-64 (FAC ¶ 88). At the October 2018 meeting, Fudge

allegedly explained that there was a concern that Plaintiffs were “pushing gay” on


10

Teenager. ER-55–56 (FAC ¶¶ 47, 48). Plaintiffs allege that they were required to

take classes for making the inappropriate comments. ER-43–44 (FAC ¶ 13). After

completing the classes, Plaintiffs were again eligible to have foster children placed

in their home. ER-43–44 (FAC ¶ 13). However, Plaintiffs allege the County

refuses to place any foster children in their home. ER-44 (FAC ¶ 14).

E. The California Court of Appeal Affirmed the Juvenile Court’s Decision, and Found No Evidence of Bias.

On October 25, 2019, the California Court of Appeal affirmed the Juvenile

Court’s decision to terminate Plaintiffs’ status as de facto parents and educational

rights holders. 2-SER-44, 56. The Court of Appeal acknowledged that it was in

Teenager’s best interests to do so because Teenager “had an emotional falling out

with [Plaintiffs], he no longer trusted them, they were not meeting his daily needs,

and he refused to have further contact with them.” 2-SER-50–51. Further, the

Court of Appeal saw “no indication” that Defendants were biased against Plaintiffs

or advocated for any of the challenged orders on the basis of Plaintiffs’ sexual

orientation because it found “the Agency was highly supportive of [Plaintiffs] and

their adoption efforts until [Teenager] himself became uncomfortable with the

proposed adoption.” 2-SER-53. The Court of Appeal also acknowledged

Plaintiffs’ other claims of error about the Juvenile Court proceedings, including

inadequate factual findings and unfairness related to access to records. 2-SER-52.


11

The Court of Appeal stated that these alleged errors could not be raised for the first

time on appeal, and found that any error did not prejudice Plaintiffs. Id.

II. PROCEDURAL HISTORY BELOW

On July 26, 2019, Plaintiffs filed their original Complaint against “San

Diego County Health and Human Services Agency” (“the County”) and County

employee Defendants Ayala, Hills, Fudge, Murillo, Rogers, Curiel, Bullock and

Macchione (collectively, “individual Defendants”). ER-225.

On October 29, 2019, individual Defendants moved to dismiss the original

Complaint. ER-226. Rather than opposing the Motion to Dismiss, Plaintiffs filed

their First Amended Complaint (“FAC”) on November 21, 2019. ER-40.

In the FAC, Plaintiffs alleged federal and state law claims against the County and

individual Defendants. ER-40. The first five causes of action in the FAC included

various 42 U.S.C. § 1983 civil rights claims against individual Defendants

(deprivation of equal protection, substantive due process, void for vagueness,

retaliation for exercise of free speech, judicial deception, and procedural due

process) and the sixth cause of action was for “Government Liability” against the

County. ER-58–75. The seventh cause of action alleged a state law claim for

violation of the Bane Act against individual Defendants. ER-75. The eighth cause

of action alleged a state law claim for misrepresentation against the County. ER-

75. The ninth and tenth causes of action alleged state law defamation and


12

intentional infliction of emotional distress claims against the County and individual

Defendants. ER-81, 83. Plaintiffs requested declaratory and injunctive relief,

restitution, and damages. ER-84–85.

On December 5, 2019, the County and the individual Defendants filed

separate Motions to Dismiss the FAC for failure to state a claim. ER-86–116,

155–165. In support of the motions, Defendants sought leave to file seven exhibits

under seal and asked the District Court to take judicial notice of the documents.

ER-183–186, 203–207; 2-SER-7–64. The documents are Teenager’s Juvenile

Court records. ER-6.

On December 30, 2019, Plaintiffs filed their Oppositions to the Motions to

Dismiss. ER- 117–143, 166–175. Plaintiffs also filed Oppositions to Defendants’

Motion to File Documents Under Seal and Defendants’ Request for Judicial

Notice. ER-193–196, 208–211.

On January 6, 2020, Defendants filed their Motion to Dismiss Reply briefs.

ER-144–154, 176–182. On the same day, Defendants also filed Reply briefs in

response to Plaintiffs’ Oppositions to the Motion to File Documents Under Seal

and Request for Judicial Notice. ER-197–202, 212–214.

On September 24, 2020, the District Court issued a 28-page Order on

Defendants’ Motions to Dismiss and Motion to File Documents Under Seal. ER-

5–32. The District Court granted Defendants’ Request for Judicial Notice and


13

Motion to File Documents Under Seal. ER-7, 12. The District Court also granted

Defendants’ Motions to Dismiss and dismissed the FAC without leave to amend.

ER-32.

Specifically, the District Court dismissed Plaintiffs’ federal claims with

prejudice because they “are all so defective they cannot be saved by amendment”

and dismissed Plaintiffs’ state law claims without prejudice because they “suffer

from many of the same defects as the federal claims.” ER-31–32. The District

Court held that Plaintiffs failed to state a substantive due process claim because no

“legally-recognized parent-child relationship” was formed and thus Plaintiffs had

no fundamental right in Teenager’s custody. ER-18–19. Plaintiffs also failed to

state an equal protection claim because they did not allege that Defendants treated

them differently than a similarly-situated opposite-sex couple. ER-19–21. The

District Court found the alleged acts of retaliation “too vague or implausible,” and

Plaintiffs’ judicial deception claim fell “far short of the pleading standard.” ER-

25–29. Because the District Court found that Plaintiffs did not state any federal

claims, it did not reach Defendants’ qualified immunity defense and dismissed

Plaintiffs’ supplemental state law claims. ER-31–32.

Judgment was entered in favor of Defendants against Plaintiffs on October

5, 2020. ER-3–4. Plaintiffs timely filed a Notice of Appeal on October 21, 2020.

ER-220.


14

STANDARD OF REVIEW

A dismissal for failure to state a claim under Rule 12(b)(6) of the Federal

Rules of Civil Procedure is reviewed de novo. Dougherty v. City of Covina, 654

F.3d 892, 897 (9th Cir. 2011). A complaint will survive a 12(b)(6) motion only if

the facts alleged “plausibly give rise to an entitlement to relief.” Id. at 897 (citing

Ashcroft v. Iqbal, 556 U.S. 662, 680 (2009)). A “pleading that offers ‘labels and

conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not

do.’” Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,

555 (2007)).

This Court reviews a District Court’s decision, not its reasoning. Thus, it

may affirm the dismissal on any ground supported by the record, regardless of

whether the District Court relied on that ground. Johnson v. Riverside Healthcare

System, LP, 534 F.3d 1116, 1121 (9th Cir. 2008).

ARGUMENT

I. PLAINTIFFS’ CLAIMS ARE BARRED, IN PART, BY THE ROOKER-FELDMAN DOCTRINE, ISSUE PRECLUSION, AND WAIVER

A. Under the Rooker-Feldman Doctrine, the District Court Lacked Jurisdiction to Hear Several of Plaintiffs’ Claims Because They Amount to a De Facto Appeal of a State Court Decision.

By statute, the United States Supreme Court is the only federal court

permitted to review state court decisions. 28 U.S.C. § 1257. The Rooker-Feldman


15

doctrine “bars a district court from exercising jurisdiction not only over an action

explicitly styled as a direct appeal, but also over the ‘de facto equivalent’ of such

an appeal.” Cooper v. Ramos, 704 F.3d 772, 777 (9th Cir. 2012); see Exxon Mobil

Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 283-84 (2005). “It is a forbidden

de facto appeal under Rooker-Feldman when the plaintiff in federal district court

complains of a legal wrong allegedly committed by the state court, and seeks relief

from the judgment of that court.” Cooper, 704 F.3d at 778 (quoting Noel v. Hall,

341 F.3d 1148, 1163 (9th Cir. 2003)). In contrast, “where the federal plaintiff

asserts as a legal wrong an allegedly illegal act or omission by an adverse party,

Rooker-Feldman does not bar jurisdiction.” Noel, 341 F.3d at 1164.

A federal court dealing with a suit that is, in part, a forbidden de facto

appeal, must also refuse to decide any issue that is “inextricably intertwined” with

an issue resolved by the state court.” Doe v. Mann, 415 F.3d 1038, 1043 (9th Cir.

2005). “Where the district court must hold that the state court was wrong in order

to find in favor of the plaintiff, the issues presented to both courts are inextricably

intertwined.” Doe & Assocs. Law Offices v. Napolitano, 252 F.3d 1026, 1030 (9th

Cir. 2001).

The Rooker-Feldman doctrine applies to both final judgments and

“interlocutory state court decisions,” Doe & Assocs., 252 F.3d at 1030, and has

been applied to juvenile dependency proceedings. See Lacy-Curry v. Alameda Cty.


16

Soc. Servs. Agency, 262 F. App’x. 9, 10 (9th Cir. 2007) (Rooker-Feldman doctrine

precluded claims related to state court child dependency proceedings); Wittman v.

Saenz, 108 F. App’x 548, 550 n.5 (9th Cir. 2004) (claims related to plaintiff’s

parental rights and custodial privileges were barred under Rooker-Feldman

doctrine).

Here, the District Court explained that it read Plaintiffs’ FAC as accepting

the state court judgments, as this was the only way to avoid the jurisdictional bar of

Rooker-Feldman. ER-14. However, the underlying harm Plaintiffs plead in

several of their causes of action—i.e., equal protection and due process (first cause

of action); retaliation (third); judicial deception (fourth); and unlawful removal

(fifth)—is that Teenager was wrongfully removed from their care and their status

as de facto parents and educational rights holders was improperly terminated.

AOB 20, 35, 38, 40. To the extent these causes of action are based on alleged

errors in the Juvenile Court proceedings, they are barred. See Noel, 341 F.3d at

1163.

Although Plaintiffs do not ask that Teenager be returned to their home, they

would only receive a damage award if this Court determined that the Juvenile

Court’s decisions were in error. See Grimes v. Alameda Cty. Soc. Servs., No. C

11-02977 WHA, 2011 U.S. Dist. LEXIS 120259, at *8 (N.D. Cal. Oct. 18, 2011)

(“Even if plaintiff were to abandon his request for the return of his children and


17

instead pursue only money damages, his claims still would require review of the

relevant state-court decisions. Such review is barred. Even though plaintiff

nominally asserts claims for alleged civil rights violations, his pleading is de facto

an improper collateral attack on unfavorable state-court rulings.”); Sample v.

Monterey Cty. Family & Children Servs., No. C09-01005 HRL, 2009 U.S. Dist.

LEXIS 69260, at *8 (N.D. Cal. Aug. 7, 2009) (holding that the court lacked

jurisdiction to evaluate plaintiff’s claims because it would have no choice but to

review and reject the state dependency court’s decision, including its acceptance of

the county’s removal actions). Accordingly, Rooker-Feldman bars Plaintiffs’

claims that challenge the Juvenile Court’s removal order.

Plaintiffs seek to avoid Rooker-Feldman by noting that they allege violations

of their federal civil rights. AOB 19. However, it is immaterial that Plaintiffs

bring “an indirect challenge based on constitutional principles,” because the claims

invite review of the Juvenile Court’s orders. See Bianchi v. Rylaarsdam, 334 F.3d

895, 898 (9th Cir. 2003).

B. The Doctrine of Issue Preclusion Further Bars Plaintiffs’ Claims.

A federal court “must give to a state-court judgment the same preclusive

effect as would be given that judgment under the law of the State in which the

judgment was rendered.” Takahashi v. Board of Trustees of Livingston Union

School Dist., 783 F.2d 848, 850 (9th Cir. 1986); see 28 U.S.C. § 1738. Thus, this


18

Court must look to California law to determine the preclusive effect of the prior

determinations by the state courts. Under California law, issue preclusion applies

when: (1) the issue sought to be relitigated is identical to the issue decided in the

earlier action; (2) the issue was actually litigated and (3) necessarily decided in the

earlier action; (4) the earlier decision was final and made on the merits; and (5) the

party against whom issue preclusion is asserted must have been a party to the

earlier action or in privity with such a party. Wige v. City of L.A., 713 F.3d 1183,

1185 (9th Cir. 2013).

Each of these five prongs is satisfied here. First, the issues of Teenager’s

removal and the termination of Plaintiffs’ status as de facto parents and educational

rights holders (raised in Plaintiffs’ first, third, and fifth causes of action) and

Defendant Ayala’s alleged perjury and presentation of falsified evidence (raised in

Plaintiffs’ fourth cause of action), were previously decided adversely against

Plaintiffs. 2-SER-11, 28, 50, 54–56. This is not disputed.

Plaintiffs argue that the state courts did not decide their federal claims, and

that the causes of action brought under § 1983 (first through sixth) thus survive.

AOB 20. However, the identical issue requirement is met because under

California law, courts apply the “primary right theory” to issue preclusion. See Le

Parc Cmty. Assn. v. Workers’ Comp. Appeals Bd., 110 Cal. App. 4th 1161, 1170

(2003). Under this theory, “if two actions involve the same injury to the plaintiff


19

and the same wrong by the defendant then the same primary right is at stake even

if in the second suit the plaintiff pleads different theories of recovery, seeks

different forms of relief and/or adds new facts supporting recovery.” San Diego

Police Officers Ass’n v. San Diego City Employees’ Retirement System, 568 F.3d

725, 734 (9th Cir. 2009) (quoting Eichman v. Fotomat Corp., 147 Cal. App. 3d

1170, 1174 (1983)).

Second, these issues were actually litigated in the state court proceedings, as

Plaintiffs objected to Defendants’ stated reasons for Teenager’s proposed removal,

expressly raised the issue of falsified evidence, and objected to the termination of

their status as de facto parents and educational rights holders. 2-SER-10, 11, 40.

Third, the issues were necessarily decided when the Juvenile Court ordered

Teenager’s removal and terminated Plaintiffs’ rights with respect to his

dependency case. 2-SER-28, 40. In affirming the Juvenile Court’s decisions, the

Court of Appeal explicitly rejected Plaintiffs’ theory that Defendants acted out of

bias against Plaintiffs because they are a same-sex couple. 2-SER-53.

Fourth, these decisions are final and on the merits. See Kasdan v. Cty. of

L.A., No. CV 12-06793 GAF (JEMx), 2014 U.S. Dist. LEXIS 165098, at *13 (C.D.

Cal. Nov. 24, 2014) (“[T]he determination of an issue by final judgment in a

juvenile dependency proceeding is conclusive upon the parties or their privies in a

subsequent suit.”) (citation omitted).


20

Fifth, Plaintiffs’ status as parties to the Juvenile Court proceedings permitted

them to assert and protect their own constitutional interests in that action. See In re

Josiah S., 102 Cal. App. 4th 403, 412 (2002). Issue preclusion bars Plaintiffs from

relitigating the issues already decided in state court and bars them from pursuing

claims that are dependent on those issues. Specifically, Plaintiffs cannot pursue

their first, third, and fifth causes of action because they are dependent on a finding

that the Juvenile Court’s removal order was improper and Defendants acted out of

bias or retaliation. Plaintiffs cannot pursue their fourth cause of action and their

fifth cause of action for the additional reason that they are dependent on a finding

that Plaintiffs were not afforded due process in the Juvenile Court proceedings.

C. Plaintiffs Have Waived Any Objection to Teenager’s Removal.

When Plaintiffs were served with the County’s Notice of Intent to Remove

Teenager, they filed an opposition in Juvenile Court, but expressly stated that they

did not object to Teenager’s removal. 2-SER-9, 10, 11, 25. Plaintiffs objected

only to the stated reasons for removal. 2-SER-10. The District Court properly

found that Plaintiffs waived any objection to Teenager’s removal. ER-18. To the

extent Plaintiffs allege independent violations of constitutionally-protected rights,

their claims fail and the District Court properly dismissed them.


21

II. THE DISTRICT COURT DID NOT ERR IN DISMISSING PLAINTIFFS’ FOURTEENTH AMENDMENT CLAIMS (FIRST CAUSE OF ACTION)

In their first cause of action of the FAC, Plaintiffs alleged that Defendants

discriminated against them on the basis of their sexual orientation and/or gender in

violation their equal protection and due process rights. ER-58–62 (FAC ¶¶ 55-80).

To seek relief under 42 U.S.C. § 1983, a plaintiff must show that the defendant,

acting under color of state law, deprived the plaintiff of her constitutional or

federal statutory rights. West v. Atkins, 487 U.S. 42, 48 (1988).

A. Plaintiffs Failed to State an Equal Protection Claim Because They Did Not Plausibly Allege That They Received Disparate Treatment Due to Their Sexual Orientation.

Plaintiffs argue that Defendants impermissibly interfered with their potential

adoption of Teenager because Plaintiffs are a same-sex couple. AOB 21. The

Equal Protection Clause guarantees “no state shall . . . deny to any person within

its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1. It

requires that “all persons similarly situated should be treated alike.” Squaw Valley

Dev. Co. v. Goldberg, 375 F.3d 936, 944 (9th Cir. 2004) (internal quotation marks

and citation omitted). To state an equal protection claim, a plaintiff must show

“the defendant acted with an intent or purpose to discriminate against him based

upon his membership in a protected class.” Serrano v. Francis, 345 F.3d 1071,

1082 (9th Cir. 2003). The District Court properly concluded that the relevant


22

classes of persons for comparative purposes are same-sex couples and opposite-sex

couples and that heightened scrutiny applies. ER-19–20.

In each of the cases cited by Plaintiffs in support of their claim, a violation

of the equal protection clause occurred when members of a protected class

received treatment that was different from others who were similarly situated. In

Bostock v. Clayton County, the Supreme Court held that “an employer who

intentionally treats a person worse because of sex—such as by firing the person for

actions or attributes it would tolerate in an individual of another sex—

discriminates against that person in violation of Title VII of the Civil Rights Act of

1964.” 140 S. Ct. 1731, 1740 (2020). In Ae Ja Elliot-Park v. Manglona, this

Court held that police officers violated the plaintiff’s equal protection rights when

they failed to provide investigative services because of her race. 592 F.3d 1003,

1008 (9th Cir. 2010). Central to the holding was that the plaintiff allegedly would

have received more police protection if she were of a different race. Id. at 1007.

By contrast, the District Court correctly found that Plaintiffs have not

plausibly alleged that they received disparate treatment compared to a similarly-

situated opposite-sex couple. ER-20–21. In affirming the removal of Teenager

and termination of Plaintiffs’ status as prospective adoptive parents, the Court of

Appeal explained that Teenager “had an emotional falling out with caregivers, he

no longer trusted them, they were not meeting his daily needs, and he refused to


23

have further contact with them.” 2-SER-50. Defendants respected Teenager’s

decision not to be adopted by Plaintiffs, in accordance with state law: “The consent

of a child, if over the age of 12 years, is necessary to the child’s adoption.” Cal.

Fam. Code § 8602. Teenager was fourteen years old (two years over the age limit

for consent) at the time that he communicated that he no longer wanted to be

adopted by Plaintiffs. 2-SER-13. Plaintiffs’ equal protection claim fails because

there is no indication that Defendants would have treated an opposite-sex couple

any differently than how they treated Plaintiffs if a minor over the age of twelve in

their care did not consent to being adopted.

B. Plaintiffs Failed to State a Substantive Due Process Claim Because They Had No Liberty Interest in Teenager’s Custody.

To state a § 1983 procedural due process claim, a plaintiff must allege (1) a

deprivation of a constitutionally protected liberty interest; and (2) constitutionally

inadequate procedural protections. Brewster v. Bd. of Educ. of the Lynwood

Unified Sch. Dist., 149 F.3d 971, 982 (9th Cir. 1998). Throughout Plaintiffs’

Opening Brief, they refer to their relationship with Teenager using parental and

familial terms, but Plaintiffs never adopted Teenager and never became his parents.

AOB 28. They were de facto parents, but that status does not carry with it the

same protections as biological or adoptive parenthood. The District Court properly

held that because no legally-recognized parent-child relationship was formed,


24

Plaintiffs had no fundamental right to the continued custody of Teenager. ER-18–

19.

1. Plaintiffs had no fundamental right to familial association because they were Teenager’s de facto, foster, or prospective adoptive parents and educational rights holders.

Plaintiffs concede that they never became Teenager’s legal parents, but

contend they nonetheless had a protected liberty interest in safeguarding their

family and raising children under Obergefell v. Hodges. AOB 28. This is

incorrect. In Obergefell, the Supreme Court held that same-sex couples have a

fundamental right to marry. Obergefell v. Hodges, 576 U.S. 644, 668-71 (2015).

It did not address the rights of de facto parents.

Plaintiffs’ status as de facto, foster, or potential adoptive parents and

educational rights holders conferred no liberty interest in Teenager’s custody. A

de facto parent is a person who has assumed, on a day-to-day basis, the role of

parent, fulfilling the child’s physical and psychological needs for a substantial

period. In re B.F., 190 Cal. App. 4th 811, 817 (2010) (citing Cal. R. Ct.

5.502(10)). This Court has conclusively determined that de facto parents do not

have a constitutional right to the custody of the minors in their care:

A de facto parent has an interest in the care of the child that is entitled to legal protection; however, de facto parents are not equated with biological parents. “De facto parent status provides the de facto parent only the right to be present, to be represented and to present evidence in a dependency proceeding.” Thus, being de facto parents simply gave


25

the [plaintiffs] the right to appear in the proceeding, which was not denied. It conferred no other, or weightier interest of constitutional dimension.

Miller v. California, 355 F.3d 1172, 1176 (9th Cir. 2004) (quoting In re Crystal J.,

92 Cal. App. 4th 186, 191 (2001)).

Similarly, foster parents “do not enjoy the same constitutional protections

that natural parents do.” Backlund v. Barnhart, 778 F.2d 1386, 1389 (9th Cir.

1985); see also In re Santos Y., 92 Cal. App. 4th 1274, 1314-16 n.24 (2001)

(holding that foster parents do not possess a fundamental interest in a familial

relationship with a foster child for substantive due process analysis). Foster

parents have the same limited rights as de facto parents to notice of dependency

court proceedings. San Diego Juvenile Court Local Rule 6.1.3 (E); see In re P.L.,

134 Cal. App. 4th 1357, 1361 (2005).

Prospective adoptive parents’ rights are “akin to those of de facto parents,

but are even more circumscribed.” R.H. v. Superior Court, 209 Cal. App. 4th 364,

372 (2012). A prospective adoptive parent is only entitled to notice prior to a

formal change in the child’s placement, and may file an objection to the change.

Id.; Welf. & Inst. Code § 366.26(n)(3). The prospective adoptive parent has no

liberty interest in custody of the child. R.H. v. Superior Court, 209 Cal. App. 4th

at 375.


26

An educational rights holder is a person appointed by the court to make

educational decisions for a child. Cal. R. Ct. 5.502(13). The holder has a right to

access “educational and developmental-services records and information to the

extent permitted by law.” Id. It does not confer any rights to custody.

Because none of the above statuses gave Plaintiffs a protected liberty interest

in the care and custody of Teenager, Plaintiffs are unable to state a claim that their

substantive due process rights were violated.

2. Defendants did not interfere with Plaintiffs’ fundamental rights to marital privacy or family planning by prohibiting them from discussing certain topics with Teenager.

Plaintiffs argue Defendant Ayala interfered with their constitutional rights to

family planning and marital privacy when she told Plaintiffs to stop talking about

“sexual orientation” and “adoption” with Teenager. AOB 22. Plaintiffs’ reliance

on Griswold v. Connecticut is misplaced. There, the Supreme Court struck down a

state law which made illegal the use of contraception by married couples. 381 U.S.

479, 486-86 (1965). The Court held that together, the First, Third, Fourth, and

Ninth Amendments create a right to privacy in marital relations. Id. at 484-85.

There is no analogous right to privacy in foster family relations. The foster parent-

child relationship is a creature of state child welfare statutes. Backlund, 778 F.2d

at 1390. Plaintiffs, by applying for a foster care license, agreed to be regulated by

the state, and by extension, the County. Cal. Health & Saf. Code § 1530.5;


27

Gensburg v. Miller, 31 Cal. App. 4th 512, 524 (1994). As a result, Defendant

Ayala did not interfere with Plaintiffs’ right to marital privacy when she told

Plaintiffs to refrain from discussing certain topics with Teenager after he

complained of feeling uncomfortable. 2-SER-12–13.

3. Plaintiffs cannot state a claim based on an alleged violation of the Ninth Amendment because it is not an independent source of rights.

Plaintiffs claim that an alleged conflict between their Fourteenth

Amendment rights and California Family Code section 8602 violates the Ninth

Amendment. AOB 22. The Ninth Amendment provides: “The enumeration in the

Constitution, of certain rights, shall not be construed to deny or disparage others

retained by the people.” Justice Goldberg’s concurring opinion in Griswold

explained that the Ninth Amendment makes clear that the first eight amendments

should not be construed as an exhaustive list of the basic rights guaranteed by the

Constitution. Griswold, 381 U.S. at 488-90 (Goldberg, J., concurring). Because

the Ninth Amendment is a rule of construction, and not an independent source of

rights, Plaintiffs’ references to the Ninth Amendment fail to state an actionable

claim. See San Diego County Gun Rights Committee v. Reno, 98 F.3d 1121, 1125

(9th Cir. 1996) (“the Ninth Amendment has not been interpreted as independently

securing any constitutional rights for purposes of making out a constitutional

violation”) (internal quotation marks and citation omitted).


28

C. California Family Code Section 8602 Passes Constitutional Muster Because it Bears a Rational Relationship to a Legitimate Governmental End.

California Family Code section 8602 provides: “The consent of a child, if

over the age of 12 years, is necessary to the child’s adoption.” In re Sarah M., 22

Cal. App. 4th 1642, 1650 (1994). Plaintiffs contend that section 8602 is

unconstitutional under Obergefell v. Hodges, that Defendants used section 8602 to

prevent Plaintiffs from adopting Teenager in violation of their fundamental rights,

and that section 8602 conflicts with the rights of foster parents under California

Welfare and Institutions Code section 366.26. AOB 23–29.

Plaintiffs did not raise a claim challenging section 8602 before the District

Court, and have therefore waived it on appeal. See Friedman v. AARP, Inc., 855

F.3d 1047, 1057 (9th Cir. 2017) (courts of appeal generally do not consider an

issue not raised below).

Even if not waived, Plaintiffs’ facial challenge to section 8602 fails because

they have not alleged that it implicates a fundamental right or that prospective

adoptive parents of a child over the age of twelve comprise a suspect class. The

Supreme Court has explained that “a classification neither involving fundamental

rights nor proceeding along suspect lines . . . cannot run afoul of the Equal

Protection Clause if there is a rational relationship between the disparity of

treatment and some legitimate governmental purpose.” Armour v. City of


29

Indianapolis, 566 U.S. 673, 680 (2012) (quoting Heller v. Doe, 509 U.S. 312, 319-

20 (1993)).

As discussed above, prospective adoptive parents do not have a fundamental

right to adopt a child. Plaintiffs rely on irrelevant cases that do not involve the

fundamental rights of prospective adoptive parents. The Supreme Court in

Obergefell v. Hodges held that same-sex couples have a fundamental right to

marry. 576 U.S. at 665. In Pavan v. Smith, the Supreme Court held that an

Arkansas law ran afoul of Obergefell because it infringed on same-sex parents’

rights to be listed on their child’s birth certificate. 137 S. Ct. 2075, 2078-79

(2017). Neither case says anything material about adoption.

Additionally, section 8602’s classification does not implicate a protected

class because it applies equally to all potential adoptions of children over the age

of twelve. Plaintiffs argue that the statute “serves no legitimate purpose” (AOB

26), but the classification must be afforded “a strong presumption of validity,” and

Plaintiffs have not met their “burden to negative every conceivable basis which

might support it.” See F.C.C. v. Beach Commc’ns, Inc., 508 U.S. 307, 314-15

(1993) (internal quotation marks and citations omitted). There are obvious reasons

that support a requirement of child consent—children know their prospective

parents as well as anyone, and if they object to adoption, that is an informed

judgment to which the Legislature may reasonably choose to defer. Consider Cal.


30

Welf. & Inst. Code § 202(b) (statuary directive that minors in protective custody

shall receive care “in their best interest”).

Finally, section 8602 does not conflict with Welfare and Institutions Code

section 366.26. Section 366.26 provides that when a child has substantial

emotional ties to their foster parents and removal would be seriously detrimental to

the child’s emotional well-being, the foster parents should be given preference

over all other applications for adoptive placement. The statutes are not at odds

because a child over the age of twelve can express whether he or she has

substantial emotional ties to a foster parent by consenting to an adoption. Besides,

section 366.26 was not implicated here because, in affirming the Juvenile Court’s

removal order, the Court of Appeal held that any emotional bond between

Plaintiffs and Teenager had been broken. 2-SER-52. Thus, Plaintiffs cannot state

a claim that Family Code section 8602 is unconstitutional.

D. Defendants Did Not Violate Plaintiffs’ Fundamental Rights by Complying with California Family Code Section 8602 and Respecting Teenager’s Lack of Consent to be Adopted by Plaintiffs.

Plaintiffs contend that their fundamental rights were violated when

Defendants gave effect to Teenager’s private biases in removing him from

Plaintiffs’ home and placing him with an opposite-sex couple. AOB 31. Plaintiffs

rely on Palmore v. Sidoti, but that case is not on point. AOB 30. In Palmore, a

state court awarded custody of a four-year-old child to the child’s father after the


31

child’s mother remarried a man of a different race. 466 U.S. 429, 431 (1984). The

Supreme Court held that awarding custody solely on the basis of race was

unconstitutional under the Equal Protection Clause. Id. at 433. The trial court

reasoned that there would be a damaging impact on the child if she remained in a

racially-mixed household because of the effects of racial prejudice, but the

Supreme Court held that this was not a permissible consideration for the removal

of a child from a mother’s custody. Id.

As a threshold matter, the District Court correctly noted that the decision to

remove Teenager was not made by Defendants unilaterally; the Teenager

supported removal, Plaintiffs did not object; the Juvenile Court approved the

removal; and the Court of Appeal affirmed it. ER-18; 2-SER-28, 50. Further,

unlike in Palmore, Plaintiffs did not have a legal parent-child relationship with

Teenager when he was removed from their home. ER-18–19. Finally, Plaintiffs

cannot show that Defendants advocated for Teenager’s removal from Plaintiffs’

care because Plaintiffs are a same-sex couple. Plaintiffs state that Teenager’s

reason for not consenting to his adoption by Plaintiffs was only about wanting a

male parental figure (AOB 30), however, Teenager gave multiple reasons,

including that he felt uncomfortable with how Plaintiffs spoke to him about the

topics of adoption and his own sexual orientation. ER-20–21; 2-SER-46.


32

Plaintiffs have not shown that their fundamental rights were violated when

Defendants complied with Family Code section 8602.

III. THE DISTRICT COURT DID NOT ERR IN DISMISSING PLAINTIFFS’ VOID FOR VAGUENESS CLAIM (SECOND CAUSE OF ACTION) BECAUSE THE STATUTORY SCHEME GOVERNING THE RIGHTS OF FOSTER CHILDREN DOES NOT REGULATE PROTECTED SPEECH AND IS NOT BEYOND THE UNDERSTANDING OF ORDINARY PEOPLE

Plaintiffs contend that they were investigated by Defendants for speech that

violated the California Department of Social Services Written Directives for

resource families. AOB 32. Plaintiffs claim the Written Directives are so vague

and overbroad as to allow for selective enforcement by County employees. AOB

32. Plaintiffs also argue that the Written Directives are unconstitutionally vague as

applied to them. AOB 34.

“A law is unconstitutionally vague if it fails to provide a reasonable

opportunity to know what conduct is prohibited, or is so indefinite as to allow

arbitrary and discriminatory enforcement.” Tucson Woman’s Clinic v. Eden, 379

F.3d 531, 555 (9th Cir. 2004) (citations omitted). Vagueness review is more

exacting in cases where constitutional rights or criminal penalties are involved.

See Forbes v. Napolitano, 236 F.3d 1009, 1011 (9th Cir. 2000); Colautti v.

Franklin, 439 U.S. 379, 388-89 (1979). However, “perfect clarity and precise

guidance are not required [] because we can never expect mathematical certainty


33

from our language.” Yamada v. Snipes, 786 F.3d 1182, 1188 (9th Cir. 2015)

(internal quotation marks and citations omitted).

California Welfare and Institutions Code section 16519.5 requires the

California Department of Social Services, in consultation with county child welfare

agencies, to implement a unified, family-friendly, and child-centered resource

family approval program. Cal. Welf. & Inst. Code § 16519.5(a). A resource

family is an individual or family that has been approved to provide care for

children placed by a public or private child placement agency by court order, or

voluntarily placed by a parent or legal guardian. Cal. Welf. & Inst. Code

§ 16519.5(c)(1). Resource families must comply with the Written Directives

issued by the Department and other applicable laws in order to maintain approval.

Cal. Welf. & Inst. Code § 16519.5(c)(8). The Written Directives contain the

processes, standards, and requirements of the Resource Family Approval program,

in order to guide agencies and resource families. ER-22–23; Cal. Welf. & Inst.

Code § 16519.5(f)(1)(A).

Welfare and Institutions Code section 16519.5(e) and section 11-08 of the

Written Directives state that a child placed with a resource family shall be afforded

the personal rights set forth in Welfare and Institutions Code section 16001.9. ER-

23; Cal. Welf. & Inst. Code § 16519.5(e). Section 16001.9 contains a non-

exclusive list of 41 rights, such as the right to “receive adequate and healthy food,”


34

to “be free from physical, sexual, emotional, or other abuse,” and to participate in

“social activities.” Cal. Welf. & Inst. Code § 16001.9(a). The District Court

properly held that while the requirements are general in nature, they are not beyond

the understanding of average people. ER-24. The District Court also

acknowledged the state’s need for flexibility in accomplishing what is best for a

particular child in foster care. ER-25.

Although Plaintiffs contend the entirety of the Written Directives is

unconstitutionally vague and overbroad, Plaintiffs only identify the specific

language in one provision of section 16001.9, which states that a child in protective

custody has the right to “live in a safe, healthy, and comfortable home where they

are treated with respect.” Cal. Welf. & Inst. Code § 16001.9(a)(1). Plaintiffs

claim that Defendants’ investigation into allegations of Plaintiffs’ inappropriate

comments to Teenager was based on a violation of this provision. AOB 34.

Plaintiffs attempt to draw a comparison between themselves and the

physician plaintiffs in Tucson Woman’s Clinic v. Eden, who challenged a provision

of a statutory scheme regulating private medical facilities that perform abortions.

379 F.3d at 536. The physicians faced criminal and civil penalties for violations of

the scheme. Id. at 537. This Court found unconstitutionally vague a provision

requiring physicians to ensure patients were “treated with consideration, respect,

and full recognition of the patient’s dignity and individuality.” Id. at 554. The


35

court reasoned that the terms were too subjective, given the potential consequences

for the physicians. Id. at 554-55.

By contrast, Plaintiffs do not face criminal or civil penalties for violations of

section 16001.9. Upon violation of the Written Directives, the County may deny a

resource family application or rescind the approval of a resource family. Cal.

Welf. & Inst. Code § 16519.61(a); see also Cal. Welf. & Inst. Code

§ 16519.61(c)(3) (“There is no fundamental right to approval as a resource

family.”). Also, the focus of the statutory scheme is on the care received by foster

children, not regulation of foster parents’ First Amendment activity. See Welf. &

Inst. Code § 16000.1(a)(1) (“The state has a duty to care for and protect the

children that the state places into foster care, and as a matter of public policy, the

state assumes an obligation of the highest order to ensure the safety of children in

foster care.”). Although the phrases “a safe, healthy, and comfortable home” and

“treated with respect” are, to an extent, subjective, the statute is not “so vague and

indefinite as to be no rule or standard at all.” See Boutilier v. INS, 387 U.S. 118,

123 (1967). Further, Plaintiffs’ request that this Court invalidate the entire Written

Directives based on the alleged vagueness of a single sentence is unreasonable.

“Vagueness doctrine cannot be understood in a manner that prohibits governments

from addressing problems that are difficult to define in objective terms.” Gammoh

v. City of La Habra, 395 F.3d 1114, 1121 (9th Cir. 2005).


36

Additionally, the Written Directives are not unconstitutionally vague as

applied to Plaintiffs. “An as-applied challenge contends that the law is

unconstitutional as applied to the litigant’s particular speech activity, even though

the law may be capable of valid application to others.” Foti v. City of Menlo Park,

146 F.3d 629, 635 (9th Cir. 1998). To the extent Plaintiffs challenge the Written

Directives based on Defendants’ investigation into allegations of Plaintiffs’

inappropriate comments to Teenager, no constitutional violation occurred.

Teenager argued with Plaintiffs regarding his adoption and sexual orientation and

complained of feeling uncomfortable. 2-SER-12–13. Defendants are required to

investigate allegations made against a caregiver to a dependent child and Plaintiffs

have not presented any authority demonstrating that they have a constitutional right

to be free from an investigation into potential violations of a foster child’s rights.

See Cal. Welf. & Inst. Code § 16519.5(g)(8); see generally Cal. Welf. & Inst. Code

§ 16000.1(a)(1).

The statutory scheme regulating the care provided to foster children is

neither unconstitutionally vague nor overbroad because it allows ordinary people

to understand whether their actions will result in adverse consequences. See

Forbes v. Napolitano, 236 F.3d at 1011.


37

IV. THE DISTRICT COURT DID NOT ERR IN DISMISSING THE FIRST AMENDMENT RETALIATION CLAIM (THIRD CAUSE OF ACTION) BECAUSE PLAINTIFFS FAILED TO SHOW THAT DEFENDANTS ENGAGED IN RETALIATORY CONDUCT TO CHILL PLAINTIFFS’ CONSITUTIONALLY-PROTECTED ACTIVITY

Plaintiffs allege that Defendants retaliated against them by delaying and

denying Plaintiffs’ adoption of Teenager, making allegations against them, lying

about them, berating them, and refusing to place foster children in their home.

AOB 35–37. As discussed above, to the extent this claim is based on Defendants’

actions in advocating for the removal of Teenager from Plaintiffs’ care, it is barred

by the Rooker-Feldman doctrine and issue preclusion.

To state a First Amendment retaliation claim, Plaintiffs must plausibly allege

that (1) they were engaged in a constitutionally protected activity, (2) Defendants’

actions would chill a person of ordinary firmness from continuing to engage in the

protected activity, and (3) the protected activity was a substantial or motivating

factor in Defendants’ conduct. Capp v. Cty. of San Diego, 940 F.3d 1046, 1053

(9th Cir. 2019) (citing O’Brien v. Welty, 818 F.3d 920, 932 (9th Cir. 2016)).

Plaintiffs do not clearly identify which of their actions prompted

Defendants’ alleged retaliation. AOB 35. Assuming the protected activities

included criticizing Defendants and objecting to the termination of Plaintiffs’

status as de facto parents and educational rights holders, Plaintiffs have not

plausibly alleged that it was a substantial or motivating factor in Defendants’


38

conduct. See Capp, 940 F.3d at 1053. The District Court correctly noted that

Teenager was removed from Plaintiffs’ care by court order and Defendants’

actions related to the removal were in response to Teenager’s expressed desire not

to live with Plaintiffs or be adopted by them. ER-26. Additionally, the District

Court held that Plaintiffs’ other allegations of retaliation, including lying,

belittling, and making allegations against Plaintiffs, are too vaguely pled and do

not show they would have a chilling effect. ER-26.

Further, the District Court correctly determined that Plaintiffs have not

plausibly alleged that the fact that no other foster children have been placed in their

home since Teenager’s departure is an act of retaliation by Defendants. ER-27.

Defendants are required to place each child in protective custody in the least

restrictive, most family-like setting that will meet their individual needs. Cal.

Welf. & Inst. Code § 16000(a). Not every prospective foster parent meets those

criteria.

The District Court also correctly noted that “failing to place new foster

children in a household for several months would be unlikely to chill a person of

ordinary firmness” from continuing to engage in protected speech. ER-27. This is

because Plaintiffs have no fundamental right to be approved as a resource family

and to have children placed in their home. See Cal. Welf. & Inst. Code

§ 16519.5(c)(3); Miller, 355 F.3d at 1176. The cases Plaintiffs cite are inapposite


39

because they held that the threat of losing custody of a child would chill the

protected activity of biological parents and legal guardians. See Capp, 940 F.3d at

1055; Sampson v. Cty. of L.A., 974 F.3d 1012, 1020 (9th Cir. 2019). Plaintiffs’

allegation is about a lack of placements of foster children, not about a threat of

losing custody of a child where a legal parent-child relationship exists. Thus,

Plaintiffs do not state a First Amendment claim.

V. THE DISTRICT COURT DID NOT ERR IN DISMISSING THE FOURTH CAUSE OF ACTION FOR JUDICIAL DECEPTION BECAUSE PLAINTIFFS FAILED TO PLAUSIBLY ALLEGE THAT DEFENDANTS PRESENTED DELIBERATELY FABRICATED EVIDENCE THAT ALTERED THE JUVENILE COURT’S DECISIONS

Plaintiffs allege that Defendant Ayala made numerous false statements to the

Juvenile Court in the Notice of Intent to Remove filed on June 21, 2018. AOB 38–

39. Plaintiffs contend they repeatedly brought the alleged falsified evidence to the

Juvenile Court’s attention. AOB 40. As discussed above, the Juvenile Court’s

determination of the issue cannot be challenged in this forum. Although there is an

exception to the Rooker-Feldman doctrine for allegations of extrinsic fraud,

Plaintiffs’ allegations do not fit within this exception. See Kougasian v. TMSL,

Inc., 359 F.3d 1136 (9th Cir. 2004). Extrinsic fraud is “conduct which prevents a

party from presenting his claim in court.” Id. at 1140. Here, Plaintiffs presented

the alleged misrepresentations to the Juvenile Court in their written Objection to

Removal and attended the special hearing held on Plaintiffs’ objection. ER-53


40

(FAC ¶ 43); 2-SER-28. Plaintiffs raise the same factual disputes previously raised

(and rejected) in the Juvenile Court proceedings and do not allege facts indicating

that they were prevented from presenting their allegations in state court. See

Benavidez v. Cty. of San Diego, 993 F.3d 1134, 1143-44 (9th Cir. 2021) (holding

that the extrinsic fraud corollary to the Rooker-Feldman doctrine applied where

plaintiffs had no opportunity to challenge or be heard on the juvenile court’s

orders). Regardless, Plaintiffs’ claim fails.

To state a claim for judicial deception, a plaintiff must prove that (1) the

defendant made misrepresentations or omissions that were “deliberate falsehoods

or demonstrated a reckless disregard for the truth,” and (2) establish that “but for

the dishonesty, the challenged action would not have occurred.” Beltran v. Santa

Clara Cty., 389 F. App’x 679, 680 (9th Cir. 2010); see also Butler v. Elle, 281 F.3d

1014, 1024 (9th Cir. 2002). A judicial deception plaintiff faces a heavy burden, as

this Circuit has applied the heightened pleading requirements of Rule 9(b) to

claims of judicial deception. See Benavidez, 993 F.3d at 1149 (“The SAC

therefore alleges, with the requisite particularity under Rule 9(b), [the social

workers’] judicial deception.”). A heightened pleading standard is appropriate

because allegations of false representations are easily made. See Pirelli Armstrong

Tire Corp. Retiree Medical Benefits Trust v. Walgreen Co., 631 F.3d 436, 442 (9th

Cir. 2011) (fraud claims are governed by Rule 9(b) to “ensure that such fraught


41

allegations are not lightly leveled.”); see also MOORE’S FEDERAL PRACTICE

§ 9.03[1][b] at 9-18 (3d Ed. 2010) (fraud plaintiffs must “inject[] precision and

some measure of substantiation into their allegations of fraud.”).

The District Court properly dismissed this claim because the lack of factual

detail falls far short of the pleading standard. ER-28. Plaintiffs argue that the

Juvenile Court documents, which the District Court ordered to be filed under seal

and took judicial notice of, support their allegations. Yet, Plaintiffs still do not

specify any particular falsehood. AOB 38–40. Plaintiffs blame their lack of

specificity on the confidential nature of Juvenile Court records, but that is not a

valid excuse. Plaintiffs, themselves, could have filed confidential documents under

seal, but opted not to do so. AOB 38–39.

Plaintiffs’ reliance on Hardwick v. County of Orange is misplaced. AOB 39.

Hardwick stands for the proposition that it is clearly established law that where a

parent’s protected familial liberty interest is at stake, they have the right to be free

from the presentation of deliberately fabricated evidence. Hardwick v. Cty. of

Orange, 844 F.3d 1112, 1118-20 (9th Cir. 2017). In Hardwick, it was undisputed

that social workers lied and fabricated evidence in connection with child

dependency proceedings. Id. at 1114-15.

Here, Plaintiffs do not identify the allegedly false evidence or show that

Defendants made the misrepresentations deliberately or recklessly. See Beltran,


42

389 F. App’x at 680. Even if Plaintiffs had plausibly alleged that Defendants made

false statements, Plaintiffs cannot establish that but for the dishonesty, the Juvenile

Court would have allowed Plaintiffs to retain their status as de facto parents and

educational rights holders and that Teenager would not have been removed from

their care. See Beltran, 389 F. App’x at 680. Therefore, Plaintiffs’ judicial

deception claim must fail.

VI. THE DISTRICT COURT DID NOT ERR IN DISMISSING PLAINTIFFS’ UNLAWFUL REMOVAL CLAIM (FIFTH CAUSE OF ACTION) BECAUSE THERE WAS NO VIOLATION OF ANY FEDERAL DUE PROCESS RIGHTS

Plaintiffs claim that the removal of Teenager from their home was an act of

discrimination and retaliation. AOB 40–41. Plaintiffs also contend that they were

not given sufficient opportunities to contest Teenager’s removal. AOB 40–41.

Plaintiffs’ first cause of action for violations of equal protection and substantive

due process and third cause of action for retaliation related to Teenager’s removal

are addressed above. To the extent Plaintiffs are making a procedural due process

claim about their rights under state juvenile dependency statutes, the District Court

correctly held that a claim for violation of state law is not cognizable under § 1983.

See Cornejo v. Cty. of San Diego, 504 F.3d 853, 855 n.3 (9th Cir. 2007). And to

the extent Plaintiffs are alleging a violation of their federal procedural due process

rights in the Juvenile Court proceedings, this claim is barred by the Rooker-

Feldman doctrine, as discussed above. See Ragan v. Cty. of Humboldt Dep’t of


43

Health & Human Servs., No. 16-cv-05580-RS, 2017 U.S. Dist. LEXIS 31560 at

*14 (N.D. Cal. Mar. 6, 2017) (holding that Rooker-Feldman barred the plaintiffs’

claim that their due process rights were violated in juvenile court when they

allegedly “were never given a fair opportunity to retain and maintain custody” of

their child).

The fifth cause of action for unlawful removal fails for an additional reason,

too. Although the Fourteenth Amendment “guarantee[s] that parents and children

will not be separated by the state without due process of law except in an

emergency,” it applies only to parents with a liberty interest in the custody of their

children. Kirkpatrick v. Cty. of Washoe, 843 F.3d 784, 789 (9th Cir. 2016).

Plaintiffs, who were Teenager’s de facto parents at the time of his removal, had no

such interest. See Miller, 355 F.3d at 1176. Plaintiffs’ rights were limited to

notice and the opportunity to file an objection to a formal change in Teenager’s

placement, as well as being present, having retained or appointed counsel, and

presenting evidence in the dependency proceedings. See Welf. & Inst. Code

§ 366.26(n)(3); R.H. v. Superior Court, 209 Cal. App. 4th at 372; Miller, 355 F.3d

at 1176. Plaintiffs exercised their rights when they filed an objection to the stated

grounds for Teenager’s removal and participated in the Juvenile Court hearings on

the matter. 2-SER-8–26, 28. The District Court properly held that, assuming

Plaintiffs had a federal due process right to be heard, any procedural due process


44

violation was harmless because Plaintiffs were given multiple opportunities to

contest Teenager’s removal. ER-30.

VII. EVEN IF THERE WAS A CONSTITUTIONAL VIOLATION (THERE WAS NOT), THE INDIVIDUAL DEFENDANTS ARE STILL ENTITLED TO QUALIFIED IMMUNITY

The doctrine of qualified immunity “balances two important interests—the

need to hold public officials accountable when they exercise power irresponsibly

and the need to shield officials from harassment, distraction, and liability when

they perform their duties reasonably.” Pearson v. Callahan, 555 U.S. 223, 231

(2009). To determine whether an official is entitled to qualified immunity, a court

considers: (1) whether there has been a violation of a constitutional right; and (2)

whether that right was clearly established at the time of the official’s alleged

misconduct. O’Doan v. Sanford, 991 F.3d 1027, 1036 (9th Cir. 2021). A right is

“clearly established” when, at the time of the alleged violation, controlling legal

precedent would have put the defendant on notice that his actions violate that right.

White v. Pauly, 137 S. Ct. 548, 551 (2017); S.B. v. Cty. of San Diego, 864 F.3d

1010, 1015 (9th Cir. 2017). Clearly established law “must be ‘particularized’ to

the facts of the case. Otherwise, plaintiffs would be able to convert the rule of

qualified immunity . . . into a rule of virtually unqualified liability simply by

alleging violation of extremely abstract rights.” White, 137 S. Ct. at 552 (citations


45

omitted); see also Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011) (clearly

established law cannot be defined “at a high level of generality”).

Because the District Court found that Plaintiffs did not state any federal

claims, it did not reach the “clearly established” prong of the qualified immunity

analysis. ER-31; see also Ioane v. Hodges, 903 F.3d 929, 933 (9th Cir. 2018) (“If

there is no constitutional violation, the inquiry ends and the [official] is entitled to

qualified immunity.”).

Plaintiffs do not specifically rebut Defendants’ qualified immunity defense

in their Opening Brief, and have therefore waived the issue. AOB 44–45; see

Acosta-Huerta v. Estelle, 7 F.3d 139, 144 (9th Cir. 1992) (“Issues raised in a brief

which are not supported by argument are deemed abandoned.”).

Even if this Court disagrees with the District Court and finds that Plaintiffs

have pled enough facts to support a constitutional violation, qualified immunity

still applies to shield the individual Defendants from liability. As Defendants

argued in their moving papers below (ER-108), no clearly established precedent

holds that a social worker violates a de facto parent’s constitutional rights by

advocating for a Juvenile Court to order a foster child be removed from a home

where the child no longer wants to live. See Cal. Fam. Code § 8602; Miller, 355

F.3d at 1176. There is also no clearly established precedent holding that a social

worker violates a prospective adoptive parent’s rights when the social worker


46

investigates allegations of violations of a foster child’s rights. See Cal. Welf. &

Inst. Code § 16519.5(g)(8); see generally Cal. Welf. & Inst. Code § 16000.1(a)(1).

Plaintiffs do not state any federal claims against the individual Defendants, but

even if they had, Defendants are entitled to qualified immunity because no clearly

established precedent would have put them on notice that they were violating such

rights. See White, 137 S. Ct. at 552.

VIII. THE DISTRICT COURT DID NOT ERR IN DISMISSING THE SIXTH CAUSE OF ACTION FOR GOVERNMENT LIABILITY BECAUSE PLAINTIFFS FAILED TO PLAUSIBLY ALLEGE THAT THE COUNTY HAD AN UNCONSTITUTIONAL POLICY OF RETALIATION

Plaintiffs allege a cause of action for governmental liability against the

County based on its policies and practices. AOB 42. Specifically, they contend

that the County failed to uphold the Quality Parenting Initiative Partnership

Agreement that Plaintiffs signed when they became foster parents. AOB 42. The

District Court correctly held that California’s Quality Parenting Initiative is a not a

law, and cannot serve as the basis for a § 1983 claim. ER-30.

For the first time on appeal, Plaintiffs also contend that the County has a

longstanding policy or custom of intimidation and retaliation.2 AOB 43. Plaintiffs

2 In their FAC, Plaintiffs vaguely alleged other unconstitutional policies and

a failure to train or supervise, but do not mention these in their Opening Brief. ER-74, 78, 79–80 (FAC ¶ ¶ 151, 152, 154, 177, 180, 181). These issues are waived because Plaintiffs failed to adequately brief them on appeal. See Miller v. Fairchild Indus., Inc., 797 F.2d 727, 738 (9th Cir. 1986) (“The Court of Appeals


47

claim that the County retaliated against them by sending copies of Plaintiffs’

complaint to their workplaces when they were represented by counsel, by

including in its Motion to Dismiss a citation to the State Bar of California’s

attorney search result for Kelley, and by not placing foster children in their home.

AOB 43–44. Plaintiffs waived this issue because it was not “raised sufficiently for

the trial court to rule on it.” Whittaker Corp. v. Execuair Corp., 953 F.2d 510, 515

(9th Cir. 1992).

Even if not waived, Plaintiffs do not adequately plead a Monell claim against

the County. To state a claim for municipal liability under § 1983, a plaintiff must

show that an employee violated her constitutional rights, otherwise the derivative

Monell claim will be barred. Villegas v. Gilroy Garlic Festival Ass’n, 541 F.3d

950, 957 (9th Cir. 2008). As analyzed above, the individual Defendants did not

violate Plaintiffs’ constitutional rights, and thus there can be no municipal liability.

See id.

Even if a constitutional violation occurred, Plaintiffs do not state a claim

against the County because Plaintiffs have not identified a specific formal policy or

longstanding custom or practice of the County that caused Plaintiffs’ purported

harm. To establish municipal liability for a policy or practice, a plaintiff must

will not ordinarily consider matters on appeal that are not specifically and distinctly argued in appellant’s opening brief.”).


48

prove that an employee “committed the alleged constitutional violation pursuant to

a formal governmental policy or a longstanding practice or custom which

constitutes the standard operating procedure of the local governmental entity.”

Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996) (quoting Gillette v. Delmore,

979 F.2d 1342, 1346-47 (9th Cir. 1992)); Monell v. Dep’t of Soc. Servs., 436 U.S.

658, 691 (1978). “Liability for improper custom may not be predicated on isolated

or sporadic incidents; it must be founded upon practices of sufficient duration,

frequency and consistency that the conduct has become a traditional method of

carrying out policy.” Trevino, 99 F.3d at 918; see Benavidez, 993 F.3d at 1154

(holding that a single instance of unlawful conduct “is insufficient to demonstrate a

custom supporting Monell liability”). The alleged policy must be the “moving

force” behind the violation. City of Canton, Ohio v. Harris, 489 U.S. 378, 389-91

(1989).

Plaintiffs’ reliance on Lozman v. City of Riviera Beach is unavailing. AOB

43. In that case, the plaintiff alleged that he was arrested pursuant to an official

city policy of intimidation in response to his prior criticisms of government

officials. 138 S. Ct. 1945, 1951 (2018). The Supreme Court considered only

whether the existence of probable cause for his arrest barred his First Amendment

retaliation claim. Id. (“The Court assumes in the discussion to follow that the


49

arrest was taken pursuant to an official city policy, but whether there was such a

policy and what its content may have been are issues not decided here.”).

Here, Plaintiffs fail to identify any formal policy of longstanding custom or

practice of the County that encouraged and supported retaliation and intimidation

against them. Confusingly, and with little to no detail, Plaintiffs cite to something

called the “Lavender Scare” as a tactic used by “the government” to terrorize gay

people. AOB 43–44. Yet, Plaintiffs fail to explain exactly if, and how, the County

was using these types of tactics as a policy, custom or practice and, if so, how these

tactics were actually used by the County to violate Plaintiffs’ constitutional rights.

Without citing any specific formal County policy or longstanding custom or

practice, Plaintiffs simply contend that certain actions of the individual social

worker Defendants are examples of the County’s “continued retaliation and

intimidation of Kelley.” AOB 43. This is woefully insufficient to implicate

Monell liability against the County. See Benavidez, 993 F.3d at 1154.

Plaintiffs have not shown that the County’s practices are of “sufficient

duration, frequency and consistency” to constitute a policy, or that the alleged

policy was the “moving force” behind a constitutional violation. See Trevino, 99

F.3d at 918; Canton, 489 U.S. at 389-91. Accordingly, Plaintiffs’ claim for

government liability against the County pursuant to 42 U.S.C. § 1983 fails.


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IX. THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION BY TAKING JUDICIAL NOTICE OF THE JUVENILE COURT RECORDS AND PLACING THE RECORDS UNDER SEAL

A district court’s decision to seal or unseal judicial records is reviewed for

abuse of discretion. In re Midland Nat’l Life Ins. Co. Annuity Sales Practices

Litig., 686 F.3d 1115, 1119 (9th Cir. 2012). A district court’s order granting

judicial notice is also reviewed for abuse of discretion. Lee v. City of L.A., 250

F.3d 668, 689 (9th Cir. 2001). A district court abuses its discretion if it “bases its

decision on an erroneous legal standard or clearly erroneous findings of fact,”

Earth Island Inst. v. Carlton, 626 F.3d 462, 468 (9th Cir. 2010), or if the reviewing

court “has a definite and firm conviction that the court below committed a clear

error of judgment in the conclusion it reached upon a weighing of the relevant

factors.” Smith v. Jackson, 84 F.3d 1213, 1221 (9th Cir. 1996).

Here, the District Court properly granted Defendants’ motion to file under

seal their unredacted Motion to Dismiss and seven exhibits. ER-7. All exhibits are

Juvenile Court records, which are protected from disclosure under California law.

See Cal. Welf. & Inst. Code § 827. Because the exhibits contain sensitive

information about Teenager, the District Court found compelling reasons for filing

the documents under seal. ER-6–7; see Cir. For Auto Safety v. Chrysler Group,

LLC, 809 F.3d 1092, 1096 (2016).


51

Defendants also requested that the District Court to take judicial notice of

the exhibits. ER-11. Plaintiffs contend that Defendants “prematurely and

unlawfully opened discovery” by obtaining the Juvenile Court records, and allege

the exhibits are incomplete. AOB 47. Yet, Plaintiffs admit the exhibits “do not

conflict” with any of their contentions. AOB 47. Federal courts may “take notice

of proceedings in other courts, both within and without the federal judicial system,

if those proceedings have a direct relation to the matters at issue.” United States ex

rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th

Cir. 1992). The District Court properly took notice of the state court proceedings

because they are relevant to subject matter jurisdiction and Plaintiffs’ claims. ER-

11–12.

The District Court used the correct legal standard in deciding to seal the

Juvenile Court records, and did not abuse its discretion in granting Defendants’

motion to file the documents under seal and granting judicial notice.

X. THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION BY DISMISSING PLAINTIFFS’ FEDERAL CLAIMS WITHOUT LEAVE TO AMEND

The District Court denied Plaintiffs leave to amend because it found

Plaintiffs’ federal claims all so defective that they could not be saved by

amendment. ER-31. Appellate courts review de novo a district court’s denial of

leave to amend on grounds of futility. Sanford v. MemberWorks, Inc., 625 F.3d


52

550, 557 (9th Cir. 2010). Although leave to amend is to be “freely given when

justice so requires,” denial of a motion to amend is proper if it is clear “that the

complaint would not be saved by any amendment.” Carvalho v. Equifax Info.

Servs., LLC, 629 F.3d 876, 892-93 (9th Cir. 2010) (internal quotation marks and

citation omitted).

Here, the District Court explained that it read Plaintiffs’ FAC as accepting

the state court judgments, as this was the only way it could assert jurisdiction over

Plaintiffs’ claims. ER-14. As a result, Plaintiffs are not able to cure pleading

defects in their FAC by alleging facts that contradict the state court rulings. ER-

31. Additionally, Plaintiffs’ claims cannot be amended successfully because

Plaintiffs had no liberty interest in the continued custody of Teenager. ER-29.

The District Court’s denial of leave to amend was proper because Plaintiffs’ FAC

cannot be saved by amendment.

XI. THE DISTRICT COURT DID NOT ERR IN DISMISSING PLAINTIFFS’ STATE LAW CAUSES OF ACTION (SEVENTH, EIGHTH, NINTH, AND TENTH)

In their FAC, Plaintiffs alleged several state causes of action—violation of

the Bane Act (Cal. Civ. Code § 51) (seventh cause of action), as well as several

California common law causes of action—misrepresentation (eighth cause of

action), defamation (ninth cause of action), and intentional infliction of emotional

distress (tenth cause of action). ER-75–77 (FAC ¶¶ 161-173), ER-78–80 (FAC ¶¶


53

175-188), ER-81–82 (FAC ¶¶ 190-199), ER-83–84 (FAC ¶¶ 201-212). The

District Court properly dismissed the entire action because it found the state law

claims “suffer from many of the same defects as the federal claims.” ER-31.

Moreover, Plaintiffs do not advance an argument in support of reversing the

District Court’s judgment with respect to the state law causes of action (AOB 51–

52), thereby abandoning them. See Cachil Dehe Band of Wintun Indians v.

California, 547 F.3d 962, 968 n.3 (9th Cir. 2008) (“[The appellant] does not,

however, advance any argument in support of reversing the district court’s

judgment with respect to that claim. Accordingly, we deem the claim

abandoned.”). And even if this Court were to consider them, each of the state law

causes of action fails for additional reasons. Defendants explain below.

A. The Seventh Cause of Action Fails Because Defendants Did Not Violate the Bane Act.

The Bane Act prohibits a person from preventing another from exercising

her constitutional rights by threats, intimidation, or coercion. Cal. Civ. Code § 52;

King v. State of California, 242 Cal. App. 4th 265, 294 (2015). The statute does

not provide any substantive protections; instead, it enables individuals to sue for

damages as a result of other violations. See Cameron v. Craig, 713 F.3d 1012,

1022 (9th Cir. 2013). To be liable under the Bane Act, the defendant must have

“interfered with or attempted to interfere with the plaintiff’s legal right by

threatening or committing violent acts.” Julian v. Mission Cmty. Hosp., 11 Cal.


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App. 5th 360, 395 (2017). “Speech is insufficient to establish the requisite threat

unless it includes threat of violence.” Id.

The Bane Act cause of action fails for at least two reasons. First, it fails at

the threshold, as there was no constitutional violation, as Defendants explained

above.

Second, there was no plausible allegation of violence. Plaintiffs contend that

Defendants’ statements in meeting with Plaintiffs, calling Plaintiffs, and providing

notice of Defendants’ intent to remove Teenager were acts of violence. ER-76–77

(FAC ¶¶ 163-170). But simply reciting the word “violence” is not enough.

Plaintiffs claim Defendants’ speech was meant to intimidate (ER-76, (FAC ¶ 163)),

but Plaintiffs fail to identify any speech that threatened violence. See Julian, 11

Cal. App. 5th at 395. A plaintiff bears the burden of coming forward with facts,

and plausible ones at that. Iqbal, 556 U.S. at 680. Plaintiffs have not done so here.

B. The Eighth Cause of Action Also Fails Because the County Is Not Liable for Common Law Misrepresentation.

“Except as otherwise provided by statute: (a) A public entity is not liable for

an injury, whether such injury arises out of an act or omission of the public entity

or a public employee or any other person.” Cal. Gov’t Code § 815(a). In

California, all government tort liability must be based on statute. Tom Jones

Enters., Ltd. v. Cty. of L.A., 212 Cal. App. 4th 1283, 1291 (2013). That is,

“sovereign immunity is the rule in California; governmental liability is limited to


55

exceptions specifically set forth by statute.” Cochran v. Herzog Engraving Co.,

155 Cal. App. 3d 405, 409 (1984). A plaintiff must identify the statute that creates

municipal liability. Cty. of L.A. v. Sup. Ct., 102 Cal. App. 4th 627, 638 (2002).

Here, Plaintiffs claim the County made misrepresentations to Plaintiffs

during their training to become foster parents (ER-78–80 (FAC ¶¶ 176-181)), but

Plaintiffs’ cause of action against the County for common law “misrepresentation”

fails because it is not a statutory cause of action. Further, the County is immune

from liability under section 818.8 of the California Government Code: “A public

entity is not liable for an injury caused by misrepresentation by an employee of the

public entity, whether or not such misrepresentation be negligent or intentional.”

Cal. Gov’t Code § 818.8; see Nuveen Mun. High Income Opportunity Fund v. City

of Alameda, 730 F.3d 1111, 1124 (9th Cir. 2013) (citing Jopson v. Feather River

Air Quality Management District, 108 Cal. App. 4th 492 (2003)).

C. The Ninth Cause of Action Was Properly Dismissed Because Plaintiffs Failed to State a Cause of Action for Defamation.

“Defamation is an invasion of the interest in reputation. The tort involves

the intentional publication of a statement of fact which is false, unprivileged, and

has a natural tendency to injure or which causes special damage.” Ringler

Associates Inc. v. Maryland Casualty Co., 80 Cal. App. 4th 1165, 1179 (2000).

Under California law, the allegedly defamatory statement must be specifically

identified, and the plaintiff must plead the substance of the statement. Jacobson v.


56

Schwarzenegger, 357 F. Supp. 2d 1198, 1216 (C.D. Cal. 2004). “Even under

liberal federal pleading standards, general allegations of the defamatory statements

which do not identify the substance of what was said are insufficient.” Id.

(internal quotations and citations omitted).

Here, Plaintiffs appear to contend that Ayala complained about Plaintiffs’

inappropriate comments, and Defendants investigated the complaint and deemed it

“substantiated (public),” thereby publishing defamatory statements. ER-81–82

(FAC ¶¶ 191-194). Plaintiffs do not identify, however, any statement with

adequate specificity or show that it is provably false. See Jacobson, 357 F. Supp.

2d at 1216; Gilbert v. Sykes, 147 Cal. App. 4th 13, 27 (2007) (“[T]o state a

defamation claim that survives a First Amendment challenge, plaintiff must present

evidence of a statement of fact that is provably false.”) (citations omitted);

Ringler, 80 Cal. App. 4th at 1181 (“It is an essential element of defamation that the

publication be of a false statement of fact rather than opinion.”). Nor do they say

how Defendants’ investigation was communicated to some third party. See

Ringler, 80 Cal. App. 4th at 1179 (defining publication as “communication to some

third person who understands both the defamatory meaning of the statement and its

application to the person to whom reference is made”). Thus, Plaintiffs’

defamation claim fails.


57

D. The Tenth Cause of Action Was Also Properly Dismissed Because Plaintiffs Failed to State a Claim for Intentional Infliction of Emotional Distress.

A cause of action for intentional infliction of emotional distress (“IIED”)

exists when there is “(1) extreme and outrageous conduct by the defendant with the

intention of causing, or reckless disregard of the probability of causing, emotional

distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3)

actual and proximate causation of the emotional distress by the defendant’s

outrageous conduct.” Hughes v. Pair, 46 Cal. 4th 1035, 1050 (2009), citing Potter

v. Firestone Tire & Rubber Co., 6 Cal. 4th 965, 1001 (1993). A defendant’s

conduct is outrageous when it is so “extreme as to exceed all bounds of that usually

tolerated in a civilized community.” Id. “Liability for intentional infliction of

emotional distress does not extend to mere insults, indignities, threats, annoyances,

petty oppressions, or other trivialities.” Id. (internal quotation omitted).

Plaintiffs’ IIED cause of action is based on three allegations that

Defendants’ actions caused them emotional distress. ER-83 (FAC ¶¶ 204-206).

First, Plaintiffs claim that Defendants encouraged Teenager to reject Plaintiffs

because of their sexual orientation. ER-83 (FAC ¶ 204). The California Court of

Appeal found that this allegation was baseless. 2-SER-53. Next, Plaintiffs claim

Defendants removed Teenager “without any rational or legal basis” (ER-83 (FAC

¶ 205)), but the Juvenile Court ordered Teenager’s removal and terminated


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Plaintiffs’ rights with respect to his dependency case, and the Court of Appeal

affirmed those decisions. ER-18; 2-SER-28, 40, 50–54. Finally, Plaintiffs claim

Defendants investigated a complaint about their use of the word “gay” (ER-83

(FAC ¶ 206)), yet the District Court found that Teenager complained about

Plaintiffs’ discussion of his sexual orientation. ER-9; 2-SER-12. None of this

conduct can be characterized as exceeding all bounds of that tolerated in a civilized

community. See Hughes, 46 Cal. 4th at 1051.

Further, Plaintiffs fail to establish that they suffered severe emotional

distress. The California Supreme Court “has set a high bar” with respect to this

requirement. Hughes, 46 Cal. 4th at 1051. “Severe emotional distress means

emotional distress of such substantial quality or enduring quality that no reasonable

person in civilized society should be expected to endure it.” Id. (internal

quotations and citation omitted). Plaintiffs claim they were “traumatized,” must

“relive the nightmare” of Teenager being gone from their home, suffer “anxiety”

and have undergone therapy for symptoms of PTSD. ER-83–84 (FAC ¶¶ 203-

211). These injuries do not rise to the level of severe emotional distress. See

Hughes, 46 Cal. 4th at 1051 (holding plaintiff’s asserted “discomfort, worry,

anxiety, upset stomach, concern, and agitation” resulting from defendant’s

comments were not sufficiently severe); Lawler v. Montblanc N. Am., LLC, 704


59

F.3d 1235, 1246 (9th Cir. 2013) (anxiety, sleeplessness, upset stomach, and muscle

twitches were not severe emotional distress).

Moreover, Defendants are entitled to statutory immunity from liability for

discretionary acts and for all actions associated with the Juvenile Court

proceedings. See Cal. Gov’t Code §§ 820.2, 821.6; Cal. Civ. Code § 47(b);

Watson v. Cty. of Santa Clara, No. C-06-04029 RMW, 2010 U.S. Dist. LEXIS

50019, at *27-28 (N.D. Cal. May 19, 2010) (social worker defendants were

immune from IIED claim under Cal. Civ. Code § 47(b), and Cal. Gov’t Code

§§ 821.6 and 820.2); Meza v. Meza, No. SA CV 12-01777-GAF (VBK), 2013 U.S.

Dist. LEXIS 77225, at *42 (C.D. Cal. May 2, 2013) (same). Plaintiffs’ IIED claim

was therefore properly dismissed.

E. The County Is Not Directly or Vicariously Liable for Alleged Violations of State Law.

Plaintiffs alleged generally that the individual Defendants were employed as

agents of the County. ER-44–45 (FAC ¶ 19). To the extent Plaintiffs claim the

County is vicariously liable for the individual Defendants’ alleged wrongdoings,

Plaintiffs’ claims fail. The County cannot be liable on a theory of vicarious

liability because the individual Defendants did not violate any state laws and are

entitled to statutory immunities. See Cal. Gov’t Code § 815.2(a)-(b).

To the extent Plaintiffs claim the County is directly liable for their state law

claims, their claims similarly fail. Because Plaintiffs have not established that any


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County employee committed violent acts or threatened them with violence, the

County cannot be directly liable under the Bane Act. See Cal. Gov’t Code § 815.2;

Sandoval v. Cty. of Sonoma, No. 11-cv-05817-TEH, 2016 U.S. Dist. LEXIS

18561, at *12-13 (N.D. Cal. Feb. 16, 2016). Nor do Plaintiffs point to any statute

to subject the County to direct liability for their common law tort causes of action

(ninth and tenth). See Cal. Gov’t Code § 815(a); Hillblom v. Cty. of Fresno, 539 F.

Supp. 2d 1192, 1212-13 (E.D. Cal. 2008).

CONCLUSION

For the reasons set forth above, Defendants respectfully request that this

Court affirm the District Court’s Order Granting Defendants’ Motions to Dismiss

and dismissing the entirety of Plaintiffs’ First Amended Complaint.

Dated: May 24, 2021 Respectfully submitted,

Office of County Counsel

By: /s/ Jeffrey Miyamoto, Senior Deputy Attorneys for Defendants/Appellees County of San Diego, Jessica Ayala, Valerie Hills, Margo Fudge, Myrna Murillo, Alicia Rogers, Wendy Curiel, Valesha Bullock and Nick Macchione E-mail: [email protected]


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CERTIFICATE OF BRIEF COMPLIANCE

9th Cir. Case Number(s) 20-56111

I am the attorney or self-represented party.

This brief contains 13,872 words, excluding the items exempted by Fed. R.

App. P. 32(f). The brief’s type size and typeface comply with Fed. R. App. P.

32(a)(5) and (6).

I certify that this brief (select only one):

complies with the word limit of Cir. R. 32-1.

is a cross-appeal brief and complies with the word limit of Cir. R. 28.1-1.

is an amicus brief and complies with the word limit of Fed. R. App. P. 29(a)(5), Cir. R. 29-2(c)(2), or Cir. R. 29-2(c)(3).

is for a death penalty case and complies with the word limit of Cir. R. 32-4.

complies with the longer length limit permitted by Cir. R. 32-2(b) because (select only one):

it is a joint brief submitted by separately represented parties; a party or parties are filing a single brief in response to multiple briefs; or a party or parties are filing a single brief in response to a longer joint

brief.

complies with the length limit designated by court order dated _____________.

is accompanied by a motion to file a longer brief pursuant to Cir. R. 32-2(a).

Signature /s/ Jeffrey Miyamoto Date May 24, 2021


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STATEMENT OF RELATED CASES

Defendants/Appellees are not aware of any related cases under Circuit Rule

28-2.6.

Dated: May 24, 2021 Respectfully submitted,

Office of County Counsel

By: /s/ Jeffrey Miyamoto, Senior Deputy Attorneys for Defendants/Appellees County of San Diego, Jessica Ayala, Valerie Hills, Margo Fudge, Myrna Murillo, Alicia Rogers, Wendy Curiel, Valesha Bullock and Nick Macchione E-mail: [email protected]
