1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 FRANCISCO ARRELLANO, et al., Case No. 23-cv-00187-DMR

8 Plaintiffs,

ORDER ON MOTION TO DISMISS

9 v. SECOND AMENDED COMPLAINT

10 SONOMA COUNTY, et al., Re: Dkt. No. 62 11 Defendants.

12 Plaintiffs Francisco Arrellano and his minor son S.A., by and through his guardian ad litem 13 Arrellano, bring this second amended complaint (“SAC”) against Defendants Sonoma County and 14 Deena Mistry. [Docket No. 61 (SAC).] Defendants move to dismiss. [Docket No. 62 (Mot.).] 15 This motion is appropriate for resolution without a hearing. Civ. L.R. Rule 7-1(b). For the 16 following reasons, the motion is granted in part and denied in part. 17 I. BACKGROUND 18 A. Statement of Facts 19 Plaintiffs make the following allegations in the SAC, all of which are taken as true for 20 purposes of this motion.1 Arrellano is S.A.’s father and shares joint legal and physical custody of 21 him with S.A.’s mother. SAC ¶ 1. Deena Mistry was a social worker employed at the Sonoma County Department of Health and Human Services (“DHHS”) to investigate child dependency and 22 child custody issues within the County of Sonoma. Id. at ¶ 8. Sonoma County is the government 23 entity that owned, operated, and controlled DHHS and employed Mistry. Id. at ¶ 7. Plaintiffs 24 allege that Defendants wrongfully caused Arrellano to lose custody of S.A. between June 10, 2021 25 and October 22, 2021. Id. at ¶ 34. 26

27 1 When reviewing a motion to dismiss for failure to state a claim, the court must “accept as true all 1 In June 2021, Arrellano enjoyed shared custody over S.A. with S.A.’s mother, Chelsea 2 Malen, and lawfully had S.A. for overnight visits each weekend and every alternating Thursday. 3 Id. at ¶ 11. On June 2, 2021, Malen reported to DHHS that S.A. was vomiting due to anxiety and 4 that his anxiety was caused solely by Arrellano. Id. at ¶ 15. Arrellano alleges that this report was 5 false because other incidents had caused S.A.’s anxiety, incidents which Arrellano had previously 6 reported to DHHS. Id. at ¶¶ 13-15. After DHHS received Malen’s report of possible abuse on 7 June 2, 2021, Mistry began an investigation. Id. at ¶ 17. 8 Arrellano alleges that Mistry had determined by June 10, 2021 that S.A. was not in danger of imminent physical or emotional harm. Id. at ¶ 22. Despite this, Mistry continued the 9 investigation and interviewed Arrellano on June 10, 2021. Id. at ¶¶ 23-24. During the interview, 10 Mistry engaged in coercive and threatening conduct against Arrellano. She presented him with a 11 family counseling form and told him that if he did not sign up for counseling for a term of five 12 years, she would take custody of S.A. away from him. Id. at ¶¶ 25, 28. However, Mistry did not 13 disclose that if Arrellano agreed to counseling but then failed to appear at any one of his 14 counseling appointments, his parental rights could be summarily taken away. Id. Arrellano 15 refused to sign the counseling form. Id. at ¶ 28. In the report Mistry later filed about the 16 investigation, she falsely stated that she had made full disclosures about the counseling form to 17 Arrellano. Id. at ¶ 26. 18 After her interview with Arrellano, Mistry drafted an emergency safety plan which stated 19 that Mistry was taking S.A. away from Arrellano for the next 30 days (June 10, 2021 until July 10, 20 2021) to support her investigation. Id. at ¶ 29. Mistry provided the safety plan to Malen, 21 connected Malen with an attorney, and directed Malen to file an emergency custody order in 22 family court to take custody of S.A. away from Arrellano. Id. at ¶¶ 29, 31. Malen did so, and the 23 family court relied on the safety plan to deny Arrellano his visitation and overnight custody rights 24 over S.A. Id. at ¶ 34. Arrellano was ultimately deprived of his custody rights from June 10, 2021 25 to October 22, 2021. Id. 26 Plaintiffs allege that the investigation ended on June 10, 20212 and that Defendants took no 27 1 steps to interview any other witnesses after Mistry met with Arrellano on June 10, 2021. Id. at ¶ 2 29. The investigation concluded there was no probable cause to substantiate the allegations of 3 abuse or any immediate threat to S.A. Id. Plaintiffs assert that the safety plan therefore falsely 4 represented there was an ongoing DHHS investigation that necessitated taking custody of S.A. 5 away from Arrellano from June 10 to July 10, 2021. Id. 6 Arrellano was not aware of the safety plan or the full extent of Mistry’s conduct until 7 October 22, 2021, after the family court informed him that it had relied on the safety plan to grant 8 Malen’s emergency custody order, and after Plaintiff received S.A.’s dependency file from DHHS. Id. at ¶¶ 34-35. Before October 22, 2021, Defendants had represented to Arrellano that DHHS 9 had taken no action against him. Id. In addition, Plaintiffs allege that Defendants “intentionally 10 delayed for several months” before disclosing S.A.’s dependency file to Arrellano on October 22, 11 2021, and that the file was “heavily redacted such that Plaintiff did not know the full details of this 12 incident.” Id. at ¶¶ 35, 38. 13 Plaintiffs allege that Sonoma County “has an unstated policy of not disclosing rights to 14 male fathers and coercing male fathers to consent to counseling or face the threat of losing their 15 custodial and visitation rights.” Id. at ¶ 28. Plaintiffs assert that Defendants do not take these 16 actions against women. Id. Plaintiffs also claim that Mistry provided additional advice and a 17 legal referral to Malen, but not to Arrellano, because Arrellano is a man. Id. at ¶ 32. 18 Finally, Plaintiffs allege that the safety plan denied them due process by effectively taking 19 custody of S.A. away from Arrellano without probable cause and without a hearing. Id. at ¶¶ 28, 20 31. 21 22 because the report states that the Mistry’s investigation ended on July 14, 2021, the court should 23 accept July 14 as the actual date the investigation ended. Incorporation by reference is appropriate “if the plaintiff refers extensively to the document or the document forms the basis of the 24 plaintiff’s claim.” Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 1002 (9th Cir. 2018) (quoting United States v. Ritchie, 342 F.3d 903, 907 (9th Cir. 2003). However, “it is improper to 25 assume the truth of an incorporated document if such assumptions only serve to dispute facts stated in a well-pleaded complaint.” Id. at 1014. Plaintiffs assert that the investigative report 26 contained false statements and that Mistry misrepresented the date she ended her investigation. Assuming the truth of facts stated in the report would take Mistry’s word over Plaintiffs’ and 27 would “override the fundamental rule that courts must interpret the allegations and factual disputes B. Procedural History 1 On April 26, 2022, Arrellano filed a claims form against Defendants pursuant to the 2 Government Claims Act. SAC ¶ 36. On October 19, 2022, Plaintiffs brought this action in 3 Sonoma County Superior Court, and it was later removed to this court. [Docket No. 1.] 4 Defendants moved to dismiss the complaint, [Docket No. 11], and the court granted the motion to 5 dismiss with leave to amend on July 13, 2023. [Docket No. 34.] At the July 13, 2023 hearing, the 6 court ordered that in the first amended complaint (FAC), Plaintiffs had to allege whether and how 7 they complied with the Government Claims Act, including specific facts explaining the history of 8 their claim presentation to Sonoma County and the dates of the alleged events giving rise to their 9 claims. Id. The court also ordered Plaintiffs, if they planned to assert a Monell claim in the FAC, 10 to clearly allege the ways in which Mistry violated the Constitution and identify the specific 11 theory or theories of Monell liability under which Sonoma County is liable for Mistry’s alleged 12 actions. Id. 13 On February 16, 2024, Plaintiffs filed the FAC. [Docket No. 52.] Defendants again 14 moved to dismiss. [Docket No. 53.] In the May 28, 2024 order granting the motion, the court 15 gave Plaintiffs a final opportunity to allege specific facts to support their claims. [Docket No. 60.] 16 Plaintiffs’ SAC asserts two claims: 1) negligence and 2) violation of the Fourteenth 17 Amendment under 42 U.S.C. § 1983. 18 II. LEGAL STANDARDS 19 A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of the claims alleged in 20 the complaint. See Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). 21 When reviewing a motion to dismiss for failure to state a claim, the court must “accept as true all 22 of the factual allegations contained in the complaint,” Erickson v. Pardus, 551 U.S. 89, 94 (2007) 23 (per curiam) (citation omitted), and may dismiss a claim “only where there is no cognizable legal 24 theory” or there is an absence of “sufficient factual matter to state a facially plausible claim to 25 relief.” Shroyer v. New Cingular Wireless Servs., Inc., 622 F.3d 1035, 1041 (9th Cir. 2010) (citing 26 Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009); Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 27 2001)) (quotation marks omitted). A claim has facial plausibility when a plaintiff “pleads factual 1 misconduct alleged.” Iqbal, 556 U.S. at 678 (citation omitted). In other words, the facts alleged 2 must demonstrate “more than labels and conclusions, and a formulaic recitation of the elements of 3 a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 554, 555 (2007) (citing 4 Papasan v. Allain, 478 U.S. 265, 286 (1986)); see Lee v. City of L.A., 250 F.3d 668, 679 (9th Cir. 5 2001), overruled on other grounds by Galbraith v. Cty. of Santa Clara, 307 F.3d 1119 (9th Cir. 6 2002). 7 As a general rule, a court may not consider “any material beyond the pleadings” when 8 ruling on a Rule 12(b)(6) motion. Lee, 250 F.3d at 688 (citation and quotation marks omitted). However, “a court may take judicial notice of ‘matters of public record,’” id. at 689 (citing Mack 9 v. S. Bay Beer Distrib., 798 F.2d 1279, 1282 (9th Cir. 1986)), and may also consider “documents 10 whose contents are alleged in a complaint and whose authenticity no party questions, but which 11 are not physically attached to the pleading,” without converting a motion to dismiss under Rule 12 12(b)(6) into a motion for summary judgment. Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 13 1994), overruled on other grounds by Galbraith, 307 F.3d at 1125-26. The court need not accept 14 as true allegations that contradict facts which may be judicially noticed. See Mullis v. U.S. Bankr. 15 Court, 828 F.2d 1385, 1388 (9th Cir. 1987). 16 Under Federal Rule of Civil Procedure 15(a), leave to amend should be granted as a matter 17 of course, at least until the defendant files a responsive pleading. Fed. R. Civ. P. 15(a)(1). After 18 that point, Rule 15(a) provides generally that leave to amend the pleadings before trial should be 19 given “freely . . . when justice so requires.” Fed. R. Civ. P. 15(a)(2). “This policy is to be applied 20 with extreme liberality.” Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir. 21 2003) (quotation omitted). However, leave to amend may be denied where the complaint “could 22 not be saved by any amendment,” i.e., “where the amendment would be futile.” Thinket Ink Info. 23 Res., Inc. v. Sun Microsystems, Inc., 368 F.3d 1053, 1061 (9th Cir. 2004). 24

III. DISCUSSION

25 A. Negligence 26 Plaintiffs’ negligence claim is subject to the Government Claims Act, which requires that 27 personal injury claims be presented to the public entity within six months of accrual. Cal. Gov. 1 Code §§ 945.4, 950.6, 911.2(a). “Generally, the right to bring and prosecute an action arises 2 immediately upon the commission of the wrong claimed, and the statute of limitations runs from 3 that time.” Collins v. County of Los Angeles, 241 Cal. App. 2d 451, 454 (1966). Here, Plaintiffs’ 4 claim accrued on June 10, 2021, the date that Mistry interviewed Arrellano and Arrellano lost his 5 custody rights. Arrellano did not present a government claim until April 26, 2022. 6 Plaintiffs argue that Defendants should be equitably estopped from raising the statute of 7 limitations defense because their own conduct caused Arrellano’s delay. [Docket No. 63 8 (Opp’n).] “It is well settled that a public entity may be estopped from asserting the limitations of the [Government Claims Act] where its agents or employees have prevented or deterred the filing 9 of a timely claim by some affirmative act.” John R. v. Oakland Unified Sch. Dist., 48 Cal. 3d 438, 10 445 (1989). A party seeking to invoke equitable estoppel must establish that “(1) the party to be 11 estopped . . . [was] apprised of the facts; (2) he must intend that his conduct shall be acted upon, or 12 must so act that the party asserting the estoppel had a right to believe it was so intended; (3) the 13 other party . . . must be ignorant of the true state of facts; and (4) he must rely upon the conduct to 14 his injury.” J.M. v. Huntington Beach Union High Sch. Dist., 2 Cal. 5th 648, 656 (2017) (citing 15 Driscoll v. City of Los Angeles, 67 Cal. 2d 297, 305 (1967)). The act or omission must be one that 16 constitutes a non-disclosure or misrepresentation of material fact, rather than law. Millview Cty 17 Water Dist. v. State Water Resources Control Bd., 32 Cal. App. 5th 585, 599 (2019). To plead 18 equitable estoppel, a plaintiff “must point to some fraudulent concealment, some active conduct by 19 the defendant ‘above and beyond the wrongdoing upon which the plaintiff’s claim is filed, to 20 prevent the plaintiff from suing in time.’” Lukovsky v. City & Cnty. of San Francisco, 535 F.3d 21 1044, 1052 (9th Cir. 2008) (quoting Guerrero v. Gates, 442 F.3d 697, 706 (9th Cir.2006)). Facts 22 giving rise to fraudulent concealment must be pleaded with particularity. Jackson v. City of 23 Modesto, No. 1:21-CV-0415 AWI EPG, 2022 WL 3083649, at *5 (E.D. Cal. Aug. 3, 2022). 24 When a public entity is the party to be estopped, “there must be affirmative misconduct (not mere 25 negligence) and a serious injustice outweighing the damage to the public interest of estopping the 26 government.” Bey v. City of Oakland, No. 14-CV-01626-JSC, 2016 WL 1639372 (N.D. Cal. Apr. 27 26, 2016). 1 To invoke equitable estoppel, Plaintiffs make two allegations. First, Defendants 2 misrepresented to Arrellano that no action was taken against him, when in fact Mistry had taken 3 action to remove S.A. from Arrellano’s custody using the safety plan. SAC ¶ 35. Second, 4 Defendants delayed disclosure of S.A.’s dependency file and only disclosed a redacted version of 5 the file. SAC ¶¶ 35, 38. 6 The first allegation is insufficient to support equitable estoppel. Arrellano cannot plead 7 that he was “ignorant of the true state of facts.” See Huntington Beach Union, 2 Cal. 5th at 656. 8 Plaintiffs themselves allege that Mistry told Arrellano she was going to take away his custody in retaliation for his refusing to agree to family counseling. SAC ¶ 28. Later in the SAC, Plaintiffs 9 allege that, at some time “before the family court hearing,” Mistry told Arrellano that the 10 allegations of abuse had been found to be unsubstantiated. SAC ¶ 35. It is not clear how Mistry’s 11 representation was false—Mistry’s report did find that the allegations of abuse were 12 unsubstantiated, and DHHS did not initiate a juvenile dependency proceeding against Arrellano. 13 In light of their own allegations, Plaintiffs cannot meet their burden to establish equitable estoppel 14 based on a theory that Mistry intended Arrellano to believe she had nothing to do with his loss of 15 custody. 16 Plaintiffs’ second estoppel theory rests on their allegation that Defendants withheld S.A.’s 17 dependency file until four months after the investigation was completed. “Stonewalling” such as 18 refusing requests for reports about the nature of a claim may be grounds for estoppel. See Est. of 19 Amaro v. City of Oakland, 653 F.3d 808, 814 (9th Cir. 2011). Plaintiffs’ allegation falls short of 20 “stonewalling”—DHHS did not refuse to provide the dependency file, it just provided it a few 21 months after the conclusion of the investigation. Tellingly, Plaintiffs do not allege that the 22 redactions prevented Plaintiffs from understanding Mistry’s role in the removal of custody from 23 Arrellano. In short, Plaintiffs have not pleaded a viable estoppel theory. 24 Plaintiffs have received two opportunities to amend their complaint to specifically plead 25 equitable estoppel. Further amendment is futile. Plaintiffs’ negligence claim is dismissed with 26 prejudice as time-barred. 27 B. Section 1983 1 Plaintiffs’ section 1983 claim alleges that Defendants violated the Due Process and the 2 Equal Protection Clauses of the Fourteenth Amendment. 3 1. Equal Protection 4 “The Equal Protection Clause of the Fourteenth Amendment commands that no State shall 5 ‘deny to any person within its jurisdiction the equal protection of the laws,’ which is essentially a 6 direction that all persons similarly situated should be treated alike.” City of Cleburne v. Cleburne 7 Living Ctr., 473 U.S. 432, 439 (1985) (quoting Plyler v. Doe, 457 U.S. 202, 216 (1982)). 8 Typically, claims under the Equal Protection Clause challenge “governmental classifications that 9 ‘affect some groups of citizens differently than others.’” Engquist v. Oregon Dep’t of Agr., 553 10 U.S. 591, 601 (2008) (quoting McGowan v. Maryland, 366 U.S. 420, 425 (1961)). “To state a 11 claim under 42 U.S.C. § 1983 for a violation of the Equal Protection Clause of the Fourteenth 12 Amendment a plaintiff must show that the defendants acted with an intent or purpose to 13 discriminate against the plaintiff based upon membership in a protected class.” Barren v. 14 Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (citing Washington v. Davis, 426 U.S. 229, 239– 15 40 (1976)). 16 Plaintiffs make only conclusory assertions that Mistry treated Arrellano differently than 17 Malen because Arrellano is a man, and that Sonoma County “has an unstated policy” of treating 18 fathers differently than mothers. Plaintiffs do not cite supporting any facts other than Mistry’s 19 interactions with Arrellano and Malen in this case. Nothing in those allegations evinces an intent 20 by Mistry or Sonoma County to discriminate based on sex. 21 Plaintiffs failed to allege an equal protection claim. Because further amendment is futile, 22 the claim is dismissed with prejudice. 23 2. Monell 24 A municipality may face section 1983 liability if it “‘subjects’ a person to a deprivation of 25 rights or ‘causes’ a person ‘to be subjected’ to such deprivation.” Connick v. Thompson, 563 U.S. 26 51, 60 (2011) (quoting Monell, 436 U.S. at 692). However, the municipality may be held liable 27 “only for ‘[its] own illegal acts.’” Id. (quoting Pembaur v. Cincinnati, 475 U.S. 469, 479 (1986)). 1 It cannot be held vicariously liable for its employees’ actions. Id. (citations omitted). To establish 2 municipal liability, plaintiffs “must prove that ‘action pursuant to official municipal policy’ caused 3 their injury.” Id. (quoting Monell, 436 U.S. at 691). “The ‘official policy’ requirement was 4 intended to distinguish acts of the municipality from acts of employees of the municipality, and 5 thereby make clear that municipal liability is limited to action for which the municipality is 6 actually responsible.” Pembaur, 475 U.S. at 479-80 (emphasis in original). Official municipal 7 policy includes “the decisions of a government’s lawmakers, the acts of its policymaking officials, 8 and practices so persistent and widespread as to practically have the force of law.” Connick, 563 9 U.S. at 61 (citations omitted). Such policy or practice must be a “moving force behind a violation 10 of constitutional rights.” Dougherty v. City of Covina, 654 F.3d 892, 900 (9th Cir. 2011) (citing 11 Monell, 436 U.S. at 694). An official municipal policy may be either formal or informal. City of 12 St. Louis v. Praprotnik, 485 U.S. 112, 131 (1988) (acknowledging that a plaintiff could show that 13 “a municipality’s actual policies were different from the ones that had been announced.”). 14 Plaintiffs’ Monell allegations are tied to their unviable equal protection claim. As 15 Plaintiffs have received ample opportunities for amendment, all municipal liability claims are 16 dismissed and judgment is entered in favor of Sonoma County. 17 3. Due Process 18 Plaintiffs allege that Mistry violated due process by temporarily suspending Arrellano’s 19 custodial and visitation rights without a hearing and without probable cause. 20 “It is well established that a parent has a fundamental liberty interest in the companionship 21 and society of his or her child and that the state’s interference with that liberty interest without due 22 process of law is remediable under [42 U.S.C. § ] 1983.” Crowe v. Cnty. of San Diego, 608 F.3d 23 406, 441 (9th Cir. 2010) (citing Lee v. City of Los Angeles, 250 F.3d 668, 685 (9th Cir. 2001)). 24 However, “[t]he interest of the parents must be balanced against the interests of the state and, 25 when conflicting, against the interests of the children.” Woodrum v. Woodward Cty., Okl., 866 26 F.2d 1121, 1125 (9th Cir. 1989). The right to familial association has both a substantive and a 27 procedural component. Keates v. Koile, 883 F.3d 1228, 1236 (9th Cir. 2018). Where a state 1 plaintiff can show “conscience shocking behavior by the government.” Murguia v. Langdon, 61 2 F.4th 1096, 1118 (9th Cir. 2023), cert. denied sub nom. Tulare v. Murguia, 144 S. Ct. 553, 217 L. 3 Ed. 2d 295 (2024) (citing Brittain v. Hansen, 451 F.3d 982, 991 (9th Cir. 2006)). Where the state 4 has a legitimate interest in interfering with a parent-child relationship, the state must “provide the 5 parents with fundamentally fair procedures.” Santosky v. Kramer, 455 U.S. 745, 754 (1982). 6 Plaintiffs allege that Mistry completed her abuse investigation on June 10, 2021, the date 7 of her final interview, and found nothing but a “moderate harm of emotional stress.” SAC ¶ 22. 8 However, Mistry instructed Malen to file an emergency custody order, and Mistry represented to 9 the family court (through the safety plan) that there was an ongoing abuse investigation which 10 justified taking S.A. from Arrellano’s custody for 30 days. Plaintiffs allege that the only reason 11 Mistry made this representation was to retaliate against Arrellano for refusing to agree to family 12 counseling. SAC ¶ 31. Taking these allegations as true, Mistry’s representation to the family 13 court of an ongoing abuse investigation was false, because her investigation in fact ended on June 14 10, 2021. 15 Defendants dispute that Mistry made a false representation, arguing that Mistry’s abuse 16 investigation did not conclude until July 14, 2021. As noted above, the court cannot consider 17 Defendants’ proffered facts about the investigation timeline at the pleadings stage. Defendants 18 make no other argument regarding Plaintiffs’ due process claim. 19 “Our caselaw clearly establishes that, as part of the right to familial association, parents 20 and children have a ‘right to be free from judicial deception’ in child custody proceedings and 21 removal orders.” David v. Kaulukukui, 38 F.4th 792, 800 (9th Cir. 2022) (citing Greene v. 22 Camreta, 588 F.3d 1011, 1034 (9th Cir. 2009), vacated in part on other grounds, 563 U.S. 692, 23 131 S.Ct. 2020, 179 L.Ed.2d 1118 (2011), 661 F.3d 1201 (9th Cir. 2011)). Defendants offer no 24 valid argument why Kaulukukui should not apply to this case. Therefore, the court denies the 25 motion to dismiss Plaintiffs’ due process claim as to the safety plan. 26 However, that claim only covers a limited time period. Plaintiffs have not alleged that in 27 temporarily removing Arrellano’s custody rights, the family court relied on any misrepresentations 1 only contemplated taking custody of S.A. from Arrellano from June 10 to July 10, 2021. The 2 family court denied Arrellano’s custody rights until October 22, 2021, months after the safety plan 3 had expired, for reasons not explained in the SAC. Plaintiffs’ allegations only support a due 4 process violation from June 10, 2021 to July 10, 2021.3 5 Plaintiffs’ allegations regarding Mistry’s threats and failures to make full disclosures 6 regarding the family counseling form do not implicate due process. SAC ¶ 28. Plaintiffs concede 7 that Arrellano did not sign the form, and “the mere threat by a social worker to take away a child 8 is insufficient to support a Fourteenth Amendment claim.” Dees v. Cnty. of San Diego, 960 F.3d 9 1145, 1153 (9th Cir. 2020). Mistry’s allegedly coercive conduct regarding the counseling form is 10 not a separate due process claim. 11 Finally, Plaintiffs appear to argue that their procedural due process rights were violated by 12 citing the California Welfare and Institutions (W&I) Code sections 300, 301, 306, 315, and 319, 13 which proscribe mandatory procedures pertaining to dependent children. None of these statutes 14 are applicable here because the state never declared S.A. to be a dependent child of the juvenile 15 court. Plaintiffs admit that DHHS never initiated dependency proceedings over S.A. Although 16 custody temporarily was taken from Arrellano, this was pursuant to a private custody dispute in 17 family court. The family court follows the California Family Code, not the W&I Code. See In re 18 Chantal S., 13 Cal. 4th 196 (1996) (discussing the distinction between juvenile court and family 19 court). In any event, a state statute prescribing certain procedures does not necessarily create a 20 constitutional right to those procedures. See James v. Rowlands, 606 F.3d 646, 657 (9th Cir. 21 2010) (finding that W&I Code §§ 307.4 and 11400 did not create procedural rights protected by 22 the due process clause). 23 Plaintiffs have stated a due process claim only with respect to the alleged 24

25 3 Plaintiffs also point to various omissions in Mistry’s investigative report that were allegedly material to a finding that Arrellano did not abuse S.A. See, e.g., SAC ¶¶ 26, 30. These allegations 26 are immaterial to Plaintiffs’ due process claim. Plaintiffs never allege that the family court relied on Mistry’s investigative report. Plaintiffs also concede that the investigative report concluded 27 that Arrellano did not abuse S.A. Therefore, any omissions in the investigative report do not 1 misrepresentation Mistry made in the safety plan submitted to the family court that her abuse 2 investigation was ongoing when in fact it had concluded. This claim covers the period between 3 June 10, 2021 and July 10, 2021. 4 4. Immunity 5 Mistry argues that both absolute and qualified immunity apply to shield her from liability 6 in her role as a social worker. She bases her entire argument on the factual assertion that she made 7 no false representations in the safety plan because the investigation ended on July 14, 2021, not 8 June 10, 2021 as alleged by Plaintiffs. As discussed above, the court cannot consider this factual 9 argument at the pleadings stage. 10 As the court held in its previous order, social workers do not have absolute immunity for 11 “investigatory conduct” or for acts or omissions which have only a “loose relation” to the 12 initiation of a dependency proceeding. Rieman v. Vazquez, No. 22-56054, 2024 WL 927667, at *4 13 (9th Cir. Apr. 2, 2024). Mistry never initiated dependency proceedings. At most, her interference 14 with Malen’s and Arrellano’s family court proceedings amounts to “investigatory conduct,” as she 15 claimed she was separating S.A. and his father to support her abuse investigation. Therefore, 16 absolute immunity does not apply. 17 Social workers are government actors who may have qualified immunity. See Rieman, 2024 WL 927667, at *5. “Qualified immunity shields government actors from civil liability 18 pursuant to § 1983 if ‘their conduct does not violate clearly established statutory or constitutional 19 rights of which a reasonable person would have known.’” Id. (quoting Benavidez v. Cnty. of San 20 Diego, 993 F.3d 1134, 1151 (9th Cir. 2021)). “In determining whether an officer is entitled to 21 qualified immunity, [courts] consider (1) whether there has been a violation of a constitutional 22 right; and (2) whether that right was clearly established at the time of the officer’s alleged 23 misconduct.” Lal v. California, 746 F.3d 1112, 1116 (9th Cir. 2014). 24 Plaintiffs have alleged a violation of due process based on judicial deception. Since at 25 least 2016, “well before” the events of this case, the law has “clearly established that a parent and 26 child’s constitutional right to familial association is violated when a state official interferes with a 27 parent’s lawful custody through judicial deception.” David v. Kaulukukui, 38 F.4th 792, 804 (9th 1 Cir. 2022) (citing Benavidez v. County of San Diego, 993 F.3d 1134, 1141 (9th Cir. 2021)). 2 Plaintiffs have alleged that Mistry made false statements in the safety plan that misled the family 3 court judge. Therefore, Mistry is not entitled to qualified immunity at this stage. 4 IV. CONCLUSION 5 Plaintiffs have adequately pleaded a section 1983 claim under the Due Process Clause of 6 the Fourteenth Amendment against Mistry, but only as to the alleged false statements in the safety 7 plan and only between June 10, 2021 and July 10, 2021. All other claims are dismissed with 8 prejudice. The claims against Sonoma County are dismissed and judgment is entered in its favor. 9 10 11 IT IS SO ORDERED. KE DISTR i> 12 || Dated: August 16, 2024 ay = © 13 Rf oN 2[Tx EO 5 hief Magistrate Jud] < Zz, Z , Wa a 16 Oh {ude Donna M fo ay 17 oe wy 5 18 LY OF 7

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