Opinion
G050930
06-30-2017
CASEY NACHTRIEB, Plaintiff and Appellant, v. COUNTY OF ORANGE et al., Defendants and Respondents.
Stanton T. Mathews & Associates, Mathews¦Nissen, Stanton T. Mathews and Noah Messing, pro hac vice, for Plaintiff and Appellant. Woodruff, Spradlin & Smart, Daniel K. Spradlin and Roberta A. Kraus for Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 30-2011-00467326) OPINION Appeal from a judgment of the Superior Court of Orange County, John C. Gastelum, Judge. Reversed in part and affirmed in part. Stanton T. Mathews & Associates, Mathews¦Nissen, Stanton T. Mathews and Noah Messing, pro hac vice, for Plaintiff and Appellant. Woodruff, Spradlin & Smart, Daniel K. Spradlin and Roberta A. Kraus for Defendants and Respondents.
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Casey Nachtrieb sued the County of Orange (County) and four of its social workers, Brigitt Walpus, Minda Herman, Laura Henry, and Mark Lottman, claiming they violated her constitutional right to familial association by causing her to lose custody of her young daughter, E.P., when they repeatedly fabricated, suppressed, and misrepresented evidence in the juvenile dependency court to make it appear Nachtrieb had caused E.P. to falsely accuse her father of sexually abusing her on multiple occasions. Nachtrieb alleged three federal civil rights claims against Defendants under Title 42 United States Code sections 1983, 1985, and 1986, and also a claim under Monell v. Dept. of Soc. Serv. of City of N.Y. (1978) 436 U.S. 658 (Monell), claiming the County's policies, practices, and customs caused the violations of Nachtrieb's constitutional rights. Finally, Nachtrieb alleged a claim for declaratory relief against all Defendants.
We refer to Walpus, Herman, Henry, and Lottman collectively as the individual defendants, and the County and the individual defendants simply as Defendants.
We refer to Title 42 United States Code section 1983 as Section 1983.
Defendants moved for summary judgment, or alternatively, summary adjudication, arguing Nachtrieb could not establish an essential element of her civil rights claims because the individual defendants did not cause the dependency court to remove E.P. from Nachtrieb's custody. According to Defendants, they recommended E.P.'s removal only after the dependency court found E.P.'s accusations against her father lacked support and Nachtrieb had caused E.P. to make those false accusations. The individual defendants also argued they acted reasonably to protect E.P., and therefore they were entitled to both absolute and qualified immunity from Nachtrieb's claims. The County argued the so-called Monell claim failed because Nachtrieb could not show the County had a policy, practice, or custom that caused the alleged violations of her civil rights. Finally, Defendants argued Nachtrieb was not entitled to declaratory relief because this claim duplicated her other causes of action.
The trial court granted the motion and entered judgment against Nachtrieb on all claims. We reverse the judgment on the three civil rights claims against the individual defendants and the Monell claim against the County, and affirm the judgment in all other respects. Even though the plaintiff bears the burden of proof at trial, a defendant moving for summary judgment bears the initial burden to present evidence showing the plaintiff cannot establish an essential element or his or her claims, or an affirmative defense defeats the claims. The defendant cannot simply argue the plaintiff lacks evidence or cannot otherwise establish an essential element of his or her claims; the defendant must present evidence affirmatively establishing the defendant's right to judgment on all claims and theories of liability the plaintiff alleged. The plaintiff has no burden to present any evidence in opposition unless and until the defendant meets its initial burden.
The individual defendants failed to meet their initial burden on Nachtrieb's civil rights claims because they did not address the principal liability theory Nachtrieb alleged in her complaint. Whether the individual defendants recommended removal of E.P. from Nachtrieb's custody only after the dependency court made its findings does not defeat Nachtrieb's allegations the individual defendants caused the dependency court to make those findings by fabricating, suppressing, and misrepresenting the evidence. Similarly, the individual defendants failed to meet their initial burden on their absolute and qualified immunity defenses because Nachtrieb's allegations the individual defendants manipulated the evidence prevents those defenses from applying and the individual defendants presented no evidence to negate those allegations.
The County similarly failed to meet its initial burden on Nachtrieb's Monell claim because the County failed to present any evidence showing the alleged policies, practices, and customs did not exist. The County's contention Nachtrieb lacked evidence of any policy, custom, or practice is not sufficient; the County must present evidence showing Nachtrieb could not establish the existence of the policies, practices, and customs she alleged. We affirm the trial court's judgment on the declaratory relief claims because Nachtrieb failed to address this cause of action in her briefs, and therefore waived all challenges to this portion of the judgment.
As explained below, both sides waived several other summary adjudication issues because they failed to address them in their briefs.
Finally, although Nachtrieb spends considerable time arguing the juvenile dependency court lacked jurisdiction to remove E.P. from her custody—and claims the trial court erred by failing to decide whether the dependency court had jurisdiction—we do not address that contention on the merits. Nachtrieb's complaint did not allege the dependency court's purported lack of jurisdiction as a basis for any of her causes of action, and therefore she may not rely on that contention to oppose Defendants' summary judgment motion. The pleadings establish the scope of the issues on summary judgment and therefore a plaintiff may not rely on an unpleaded claim or liability theory to defeat summary judgment.
I
FACTS AND PROCEDURAL HISTORY
A. The Underlying Dependency Proceedings
1. The San Bernardino County Proceedings
In 2005, Nachtrieb filed a petition in Orange County to dissolve her marriage with Scott Padelsky and obtained a restraining order against him because he struck her. The couple had one child, E.P., and in February 2006 when she was almost two years old, they agreed Nachtrieb would have exclusive legal and physical custody of E.P., with limited, monitored visitation for Padelsky. Gradually, he gained the right to unmonitored visitation after he enrolled in an anger management program and a 22-week battery prevention course.
E.P. eventually began to stay overnight with Padelsky at his father's home in San Diego County. After a September 2007 visit, Nachtrieb noticed an "unusually strong smell" and a "yellow, sticky discharge" from E.P.'s vagina. Nachtrieb did not immediately suspect Padelsky of abuse or attribute this development to his care. She allowed E.P. to stay at his home two weeks later, but E.P. again returned with a foul smell in her groin area.
A third visit in late September 2007 prompted Nachtrieb to act. E.P., who was three and one-half years old at the time, returned from the visit visibly disturbed. Nachtrieb had remarried after the divorce, and E.P. disclosed to her stepfather that someone had "tickled me inside there" and it hurt her, pointing to her vagina. E.P. then specifically stated that Padelsky had touched her "inside her hoo-hoo," which was her word for vagina.
The Nachtriebs called E.P.'s pediatrician, and on the doctor's recommendation, they called the police, who scheduled an interview. In the meantime, the Nachtriebs took E.P. to her pediatrician, Dr. Antoinette del Valle, who observed redness and swelling in E.P.'s vaginal area and determined E.P. had a bacterial infection outside of her vagina, most likely caused by contact with an unclean foreign source. According to the doctor, the type and location of the infection, together with the physical irritation and recurrence only after certain visits, "definitely suggest[ed]" sexual abuse.
The police referred the Nachtriebs to independent forensic interviewers and examiners at the Chadwick Center in San Diego, where E.P. confirmed the abuse and demonstrated how Padelsky penetrated her with his fingers. A detective also had Nachtrieb and her husband take lie-detector tests, which they passed, but Padelsky refused to take one. The police department concluded Padelsky was the only suspect.
The Nachtriebs lived in San Bernardino County at the time, and Joan McLaurin, a social worker from that county's Department of Children and Family Services soon contacted them. In an October 2007 interview, E.P. disclosed to McLaurin that "Daddy Scott" had touched her and rubbed her on her private parts at "Daddy Scott's" home. E.P. confirmed the abuse when McLaurin interviewed her a second time. E.P. also told McLaurin that Padelsky "lets me lie down when he does it."
McLaurin found the reports credible and opened dependency proceedings with a petition alleging Padelsky sexually abused E.P. The jurisdiction and disposition hearings were delayed several months, and in the interim, McLaurin interviewed E.P.'s pediatrician, her court-appointed psychologist, the police detectives who took the initial report, the forensic experts who interviewed and examined her, the Nachtriebs, Padelsky, and Padelsky's family. In a February 2008 report, McLaurin recommended that the court sustain the petition because E.P. had been sexually abused or was at risk of being sexually abused by the Padelsky. She further recommended that E.P. be removed from Padelsky's physical custody, and his visitation not be restored until E.P. has undergone further counseling and Padelsky becomes involved in a sexual perpetrators class.
The day before the scheduled jurisdiction hearing, Nachtrieb received a telephone call from another San Bernardino County social worker, Robert Escalera, who stated he had replaced McLaurin and would recommend the court dismiss the petition. According to Nachtrieb, Escalera only began to contact witnesses the day before his report to the court on March 20, 2008, and he only contacted Padelsky, Padelsky's girlfriend and family members, and a public health nurse who had no affiliation with the case. Escalera did not contact or attempt to interview the Nachtriebs, E.P.'s pediatrician, E.P.'s court-appointed psychologist, the police detectives, or the forensic examiners, nor did he meet with or even request to meet E.P. According to Nachtrieb, Escalera lied to the court on several instances. Based on Escalera's request and the approval of his supervisor, the San Bernardino County dependency court dismissed the petition.
In September 2008, E.P. reported to a school teacher another instance of abuse in which "daddy Scott was doing some bad touchings" of her "boobies" and "hoo-hoo" in a dark movie theater. In an interview by Escalera with the teacher present, E.P. repeated her description of the abuse, but Escalera dismissed it, while the teacher found her "totally credible." According to the teacher, while E.P. was "consistent and adamant" in describing the abuse, Escalera intimidated her and may have confused her in the way he referred to her father and stepfather.
Escalera refused to file a new petition, and instead referred Nachtrieb to the ongoing dissolution proceedings in Orange County. The family court judge, however, declined to consider the matter; instead, the judge counseled Nachtrieb to reunify with Padelsky for E.P.'s sake even though Nachtrieb had remarried. The family court judge also threatened Nachtrieb with contempt if she withheld E.P. from visits with Padelsky.
2. The Orange County Dependency Proceedings
The Nachtriebs moved to Orange County in late 2008, and during a December 2008 play date, E.P. told an adult neighbor, Deborah Podesta, of a third incident of sexual abuse. E.P. told Podesta that Padelsky "touches [her] hoo-hoo" with his fingers. Finding E.P., now four and one-half years old, articulate and credible, the neighbor reported the abuse to the County.
The incident apparently arose on November 22, 2008, when Padelsky took E.P. to an urgent care facility near his home in Chandler, Arizona, for treatment for a bladder infection. E.P. maintained that Padelsky touched her "hoo-hoo" again in an examination room there. When Nachtrieb took E.P. to the doctor upon her return from Arizona, the doctor found no evidence of the alleged bladder infection. The County's social worker who responded to the neighbor's report, Nancy Shaffer, was initially skeptical, but when E.P. remained "adamant that the father sexually abused her," and confirmed the abuse in a Child Abuse Services Team interview, the worker found the report "substantiated," warranting the County's intervention. Accordingly, another social worker initiated dependency proceedings in Orange County, alleging Padelsky sexually abused E.P. and Nachtrieb could not protect E.P. because of the family court orders requiring visitation.
At a Team Decision Meeting arranged by Shaffer and another social worker, and attended by Nachtrieb and by Padelsky telephonically, the participants agreed E.P. would remain in Nachtrieb's custody, with visitation and trips to see Padelsky in Arizona deferred in the interim. Consequently, at the detention hearing at the outset of the case, the dependency court ordered E.P. to remain in Nachtrieb's custody. The County then assigned Walpus to continue investigating the case.
According to Nachtrieb, Walpus engaged in a pattern of deliberately suppressing crucial exculpatory information from her reports to the court, including: (1) reports from E.P.'s psychologist, Dr. Toni Wein, who concluded E.P. had been a victim of incest; (2) statements from E.P.'s teacher documenting credible reports of Padelsky's sexual abuse; (3) reports, letters, and statements from maternal family members; (4) polygraph reports exculpating Nachtrieb, (5) the complete police reports and records from Chandler, Arizona, showing that someone other than Nachtrieb had lodged the sexual assault complaints against Padelsky arising from the urgent care visit on November 22, 2008; and (6) the police reports at the outset of the original San Bernardino County dependency proceeding reflecting E.P.'s consistent reports of abuse.
According to Nachtrieb, in addition to omitting Dr. Wein's report and her conclusion that Padelsky sexually abused E.P., Walpus pressured Dr. Wein to change her report. Wien later submitted a declaration stating, "In over 20 years of practice and interacting with social services, I had never been asked to commit a crime, as Orange County [social worker] Walpus was seemingly requesting I do."
The County later removed Walpus as E.P.'s assigned social worker in March 2009 and replaced her with Herman. According to Nachtrieb, Herman perpetuated Walpus's distortion of the evidence and in some respects added to it by failing to disclose to the court: (1) the complete police reports from San Diego and from Arizona supporting E.P.'s claims of abuse; (2) Dr. Wein's reports and conclusion that E.P. had been abused and was not being coached; (3) evidence from Nachtrieb's court-ordered therapist that Nachtrieb was not coaching E.P. and suffered post-traumatic stress following E.P.'s claims of abuse; and (4) the letter and statements from E.P.'s teacher that E.P. consistently and credibly maintained that Padelsky had sexually abused her.
Still, Herman recommended to the court in her April 2009 report for the pending jurisdiction hearing that the court sustain the allegations against Padelsky. Her summary recommendation stated: "Sustain Petition. Declare Dependency. Family Maintenance services to the mother. Enhancement Plan to father. Order [Evidence Code section] 730 evaluations of child and parents. Continue for Dispositional Hearing and results of a 730 Evaluation."
Herman elaborated more fully in her report: "The undersigned remains highly concerned about the fact that [E.P.] believes she has been sexually assaulted by her father and readily discloses her beliefs with minimal to no prompting by adults. In short, although the undersigned does not believe [E.P.] was, in fact, digitally penetrated on November 22, 2008 at the Sun Valley Pediatric Urgent Care Center [i.e., the Chandler, Arizona incident], [E.P.'s] persistence provides ample disquiet. The undersigned cannot state with any certainty that [E.P.] has not been sexually abused in the past and the fact that she continues to disclose that she has been cannot be ignored. The undersigned cannot state with any certainty that [E.P.] has been coached or otherwise influenced to disclose sexual abuse. Thus, the undersigned believes that a 730 Evaluation of [E.P.], her mother and father will provide additional and objective insight as to the nature of the sexual abuse allegations in this case and to address the most appropriate venue for visitation."
Herman recommended that the court sustain jurisdiction over E.P. because "the child is in need of the protection of the Court," and she noted that, at some point, "the petition should be amended to reflect the issues stated above." She also observed, "The undersigned further believes [E.P.] is in need of continued therapeutic intervention as are her biological parents to better understand the child's beliefs and how to best deal with them as a unit despite their divorce." But neither Herman, nor Walpus before her, recommended removing E.P. from mother's custody.
On May 6, 2009, Deputy County Counsel Janelle Price dismissed the sexual abuse count against Padelsky and amended the dependency petition to assert Nachtrieb's custody of E.P., rather than Padelsky's custody, should be terminated. The amended petition alleged a count for emotional damage or endangerment against Nachtrieb based on allegations that she "provided false, misleading and/or inaccurate information to the different entities investigating the claims of sexual abuse for the purpose of bolstering her credibility or adding support to her claims and to diminish the credibility of [Padelsky] and the paternal relatives." The amended petition further alleged, "[b]y her actions, [Nachtrieb] has intentionally or unintentionally influenced [E.P.] to continue to make disclosures of sexual abuse that are contradicted and/or cannot be substantiated by credible evidence." Finally, the amended petition alleged that the criminal investigations in Ontario, San Diego, and San Bernardino, California, and Chandler, Arizona "were closed without criminal charges being filed due to insufficient evidence and/or contradictory information."
On August 21, 2009, the dependency court conducted a hearing on the amended petition that both Nachtrieb and Defendants thought would be a jurisdictional hearing to determine whether the court had jurisdiction over E.P., not a dispositional hearing to determine whether the court should terminate Nachtrieb's custody over E.P. From Nachtrieb's perspective, she suffered a due process violation because she was not notified in advance that she might lose her child at the hearing.
Nachtrieb assumed the social worker reports faithfully recounted the evidence supporting the sexual abuse allegations against Padelsky in the original petition and that, if necessary, she would be able to present any additional evidence supporting the abuse claims at the disposition hearing on E.P.'s ultimate placement. According to Nachtrieb, because she and the dependency court relied on the social workers' reports and assessments on the question of jurisdiction, the court precluded her from calling any witnesses and prohibited her from submitting any evidence surrounding E.P.'s many disclosures of sexual abuse.
Nachtrieb's attorney objected at the jurisdictional hearing on due process grounds, stating, "[M]y due process concerns and objections would be such that this was set for jurisdiction. As the court knows, there [are] occasions when we were tactically precluded from presenting evidence that would go towards disposition, and knowing it was juris[dictional] we tailored our evidence accordingly. [¶] . . . And as it relates to that[,] I find myself in a position of [trying] to make best efforts to advocate to the court why the child should remain in the mother's home, and yet not having an opportunity to present what could have been appropriate evidence to the court in that concern."
The dependency court nonetheless proceeded with the hearing. Nachtrieb testified, but she did not know the social workers had suppressed relevant information from their reports and in their testimony. According to Nachtrieb, the information was relevant and exonerated her on the emotional damage and endangerment allegation because it supported her reasonable belief in the former sexual abuse allegations against Padelsky, and therefore undermined Price's new theory in the amended petition that Nachtrieb led E.P. to fabricate the abuse claims.
At the hearing's conclusion, the dependency court found "by a preponderance of the evidence that mother knowingly caused the child to falsely report to others on multiple occasions that she had been sexually abused by her father, and further that this conduct by mother places the child at substantial risk for serious emotional harm and/or caused her serous emotional harm . . . ." The court also explained, "This is one of those cases where the outcome of the case turns heavily on the demeanor of the witness while testifying, where the demeanor of the witness casts all other evidence in a different or clear light. Ms. Nachtrieb was completely without credibility."
After making these finding, the dependency court expressed surprise that Price disclaimed any intention to remove E.P. from Nachtrieb's custody. When Price explained she had "no comment regarding placement" because "we're not at disposition," the court demanded, "Let me get this straight. Right now you have no issue one way or the other regarding placement?" Following a brief recess, Price advised the court, "I spoke to Mark Lottman, who is the supervisor of Minda Herman, who is not available today. I also have present in the courtroom Laura Henry, who was the supervis[or] of Birgitt Walpus during her handling of the case. It is our position that [E.P.] should be removed from the mother's care until such time as a dispositional hearing can be completed. Mr. Lottman has agreed given the court's ruling and the information that has been unearthed in both of our investigations that father would not present a risk to have the child in his care . . . ."
Based on its findings and Price's representations, the dependency court ordered E.P.'s immediate placement with Padelsky. E.P. was five and one-half years old at the time and had never been out of Nachtrieb's custody. Upon being handed over to Padelsky, E.P. screamed and began to cry. The court set a disposition hearing that was eventually conducted eight months later.
On that date, Price presented Nachtrieb with a stipulated agreement to dispense with a contested disposition hearing. According to Nachtrieb, "On April 14, 2010, I was presented at a court hearing with an already-prepared stipulation written by Janelle Price, . . . which I did not help prepare, nor was I aware of it, and was not allowed to contribute to or modify other than specifying what constituted a change in the circumstance of E.P. needing medical care." Nachtrieb "requested that the Stipulation say that this was not an admission of guilt, and that I did not agree to the need for therapy, [but] was told that I did not have the option of input to the Stipulation or Case Plan."
According to Nachtrieb, "After [previously] having my daughter suddenly taken from me with no due process and no notice, or even an inkling that such a thing could . . . happen, I was [now] told that County Counsel said [that] if I did not sign the Stipulation I not only would never see my daughter again, I would never be allowed to communicate with her." Nachtrieb had seen very little of E.P. in the months since she had been placed with Padelsky, in part because the professional monitor required by her case plan cost $100 per hour.
Price gave Nachtrieb just "several minutes" to decide whether to sign the stipulation. Nachtrieb stated in a subsequent declaration, "The County, through its representative, Janelle Price, was fully aware that I was fearful of never seeing my daughter again, and that I would have done anything to avoid that circumstance. That, combined with my experience that the [County] could do anything it wished, never once acknowledging my due process rights, [put me] in a state of severe duress and I did not believe I had an option and I had to sign the [stipulation]." She signed it, and the court entered it as a stipulated agreement resolving the disposition and placement issues. The agreement afforded Nachtrieb continued visitation on a minimal basis, and vested Padelsky with sole legal and physical custody of E.P.
After the hearing, Nachtrieb sought an attorney to attempt to vacate the agreement, but she could not afford one. The dependency court continued to exercise jurisdiction over E.P. for almost two years after the disposition hearing, ultimately issuing exit orders in February 2012 vesting custody with Padelsky with limited visitation for Nachtrieb. B. The Complaint and Summary Judgment Proceedings
In April 2011, Nachtrieb filed this lawsuit against the County, Walpus, Herman, Henry, and Lottman. She did not name Price as a defendant. The operative complaint alleges three causes of action against all Defendants for violation of Nachtrieb's civil rights under Title 42 United States Code sections 1983, 1985, and 1986, a Monell cause of action against the County for having policies, practices, or customs that caused the violations of Nachtrieb's civil rights, and a declaratory relief claim against all Defendants. The trial court sustained the County's demurrer to the second and third causes of action without leave to amend, leaving the County as a defendant on the first cause of action under Section 1983, the fourth cause of action under Monell, and the fifth cause of action for declaratory relief.
Ingrid Harita, Maria Segovia, and James Waldron also are County social workers who Nachtrieb named in her complaint, but later dismissed before the trial court ruled on the summary judgment motion. Moreover, Nachtrieb also named the County of San Bernardino and its social workers as defendants in this lawsuit, but she settled her claims against those defendants.
The complaint alleged Defendants violated Nachtrieb's constitutional right to familial association free from governmental interference by causing the dependency court to remove E.P. from Nachtrieb's custody based on fabricated and incomplete evidence. Specifically, Nachtrieb alleged Walpus and Herman knowingly and intentionally prepared and signed several reports that were submitted to the dependency court and contained false and fabricated evidence regarding the sexual abuse allegations against Padelsky, and also omitted other evidence that supported those allegations. Nachtrieb further alleged Walpus and Herman intentionally or recklessly conducted superficial and inadequate investigations regarding the sexual abuse allegations, and knowingly provided false, incomplete and misleading testimony in the dependency court. According to Nachtrieb, Henry and Lottman ratified and participated in this conduct by approving and signing reports they knew contained false evidence and omitted evidence, and also by failing to properly supervise the investigations Walpus and Herman conducted.
As to the County, the complaint alleged the County's policies, practices, and customs caused the foregoing conduct and, as of March 2007, the County was aware of the jury verdict and judgment in Fogerty-Hardwick v. County of Orange, Orange County Superior Court Case No. 01CC02379 (Fogerty-Hardwick), which concluded the County "was deliberately indifferent to the need to train and/or supervise its employees adequately, leading to the deprivation of the plaintiff's rights to familial association with her daughter in violation of the Fourteenth Amendment to the United States Constitution, and that the wrongdoing was not an isolated incident." According to Nachtrieb, the County's continued indifference to the need to train and supervise its employees gave rise to the conduct at issue in this lawsuit.
Defendants moved for summary judgment, or alternatively, summary adjudication on 15 issues. The motion argued Defendants did not cause the dependency court to remove E.P. from Nachtrieb's custody, and therefore they did not violate her constitutional right to familial association, because Defendants neither requested nor recommended the removal until after the dependency court had determined the sexual abuse allegations against Padelsky were unsupported and Nachtrieb knowingly had caused E.P. to make those false allegations. The motion also argued the individual defendants were entitled to both absolute and qualified immunity for the alleged conduct because they were acting in their official capacity as social workers and Nachtrieb had no evidence to show they acted unreasonably. The County argued the Monell claim failed because there was no underlying improper conduct by the individual defendants to support the claim, and Nachtrieb had no evidence of any County policy, practice, or custom that caused the alleged violation of her rights. Finally, all Defendants argued Nachtrieb was not entitled to declaratory relief because her claim was duplicative of the other causes of action.
The trial court granted Defendants' motion and entered judgment against Nachtrieb on all of her claims. The court concluded (1) the civil rights claims against the individual defendants failed because they did not recommend or request the removal of E.P. from Nachtrieb's custody until after the dependency court determined Nachtrieb caused E.P. to make false sexual abuse allegations against Padelsky; (2) the Monell claim against the County failed because there was no underlying violation of Nachtrieb's constitutional rights by the individual defendants to support the claim; and (3) the declaratory relief claim against all Defendants failed because it was duplicative of the other causes of action. Based on its other rulings, the court did not address the individual defendants' absolute or qualified immunity defenses.
Nachtrieb then moved for a new trial, arguing she recently discovered further, material evidence about the sexual abuse allegations that Defendants had suppressed. The trial court denied that motion. Nachtrieb appeals from both the trial court's summary judgment and its order denying her a new trial.
II
DISCUSSION
A. Governing Summary Judgment Standards
"[A] summary judgment motion necessarily is addressed to the pleadings. [Citation.] 'The purpose of a summary judgment proceeding is to permit a party to show that material factual claims arising from the pleadings need not be tried because they are not in dispute.' [Citation.] Materiality depends on the issues in the case, and what matters are at issue is determined by the pleadings, the rules of pleadings, and the substantive law." (Teselle v. McLoughlin (2009) 173 Cal.App.4th 156, 172 (Teselle).) "'"The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues: the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings."'" (Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 888 (Carlsen).)
"The purpose is carried out in [Code of Civil Procedure] section 437c, subdivision (b)(1) by requiring the moving party to include in the moving papers 'a separate statement setting forth plainly and concisely all material facts which the moving party contends are undisputed . . . [together with] a reference to the supporting evidence.' 'The complaint measures the materiality of the facts tendered in a defendant's challenge to the plaintiff's cause of action' [citation], hence the moving party's separate statement must address the material facts set forth in the complaint." (Teselle, supra, 173 Cal.App.4th at p. 168.)
A party may neither obtain nor oppose summary judgment based on a claim, defense, or theory that is not alleged in the pleadings. (California Bank & Trust v. Lawlor (2013) 222 Cal.App.4th 625, 637, fn. 3 (Lawlor).) Moreover, the opposing party may not obtain summary judgment or any other affirmative relief without filing a timely motion of its own. (Cuff v. Grossmont Union High School Dist. (2013) 221 Cal.App.4th 582, 595-596 (Cuff); Miracle Auto Center v. Superior Court (1998) 68 Cal.App.4th 818, 823 (Miracle Auto).)
"A defendant who moves for summary judgment or summary adjudication bears the initial burden to show that the action or cause of action has no merit—that is, 'that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action.' [Citation.] When the burden of proof at trial will be on the plaintiff by a preponderance of the evidence, the moving defendant 'must present evidence that would preclude a reasonable trier of fact from finding that it was more likely than not that the material fact was true [citation], or the defendant must establish that an element of the claim cannot be established, by presenting evidence that the plaintiff "does not possess and cannot reasonably obtain, needed evidence"' to support a necessary element of the cause of action." (Zoran Corp. v. Chen (2010) 185 Cal.App.4th 799, 805 (Zoran).) "To meet this burden, the defendant must present evidence sufficient to show he or she is entitled to judgment as a matter of law. [Citation.] '"If a plaintiff pleads several theories, the defendant has the burden of demonstrating there are no material facts requiring trial on any of them."'" (Carlsen, supra, 227 Cal.App.4th at p. 889, italics added.)
A defendant who seeks summary judgment on the ground the plaintiff lacks evidence to support a necessary element may not simply argue the plaintiff lacks evidence; rather, the defendant must present evidence affirmatively showing the plaintiff lacks evidence to establish that element. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 855 (Aguilar); Zoran, supra, 185 Cal.App.4th at p. 808.) Typically, a defendant meets this burden by presenting either admissions the plaintiff made during discovery or the plaintiff's factually devoid responses to discovery requests seeking the plaintiff's evidence to support his or her claims. (Aguilar, at p. 855; Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 590.) A defendant's initial burden is different when he or she seeks summary judgment based on an affirmative defense. Rather than simply negating one element of the plaintiff's claim, the defendant must present evidence establishing every element of the affirmative defense. (Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 466-467.)
"'Where the evidence presented by defendant does not support judgment in his favor, the motion must be denied without looking at the opposing evidence, if any, submitted by plaintiff.'" (Hawkins v. Wilton (2006) 144 Cal.App.4th 936, 940 (Hawkins); see Zoran, supra, 185 Cal.App.4th at p. 805.) If, however, the defendant meets its burden, "the burden then shifts to the plaintiff to make a prima facie showing that there exists a triable issue of material fact." (Zoran, at p. 805.)
"'An issue of fact can only be created by a conflict of evidence. It is not created by "speculation, conjecture, imagination or guess work." [Citation.] Further, an issue of fact is not raised by "cryptic, broadly phrased, and conclusory assertions" [citation], or mere possibilities [citation]. "Thus, while the court in determining a motion for summary judgment does not 'try' the case, the court is bound to consider the competency of the evidence presented." [Citation.]' [Citation.] Responsive evidence that 'gives rise to no more than mere speculation' is not sufficient to establish a triable issue of material fact." (Carlsen, supra, 227 Cal.App.4th at pp. 889-890.)
"On appeal, we conduct a de novo review of the record to 'determine with respect to each cause of action whether the defendant seeking summary judgment has conclusively negated a necessary element of the plaintiff's case, or has demonstrated that under no hypothesis is there a material issue of fact that requires the process of trial, such that the defendant is entitled to judgment as a matter of law.'" (Zoran, supra, 185 Cal.App.4th at p. 805.) "'"[I]n practical effect, we assume the role of a trial court and apply the same rules and standards that govern a trial court's determination of a motion for summary [judgment]."'" (Lawlor, supra, 222 Cal.App.4th at p. 631.) "We examine the pleadings to ascertain the elements of the plaintiff's claim; the moving papers to determine whether the defendant has established facts justifying judgment in its favor; and, if the defendant did meet this burden, plaintiff's opposition to decide whether he or she has demonstrated the existence of a triable issue of material fact." (Zoran, at pp. 805-806.) "'"Regardless of how the trial court reached its decision, it falls to us to examine the record de novo and independently determine whether that decision is correct."'" (Lawlor, supra, 222 Cal.App.4th at p. 631.) "'[T]he reviewing court . . . " . . . reviews the trial court's ruling, not its rationale."'" (Ibid.) B. The Trial Court Did Not Err in Failing to Address Nachtrieb's Argument the Dependency Court Lacked Jurisdiction to Remove E.P. From Her Custody
Nachtrieb's principal argument is that we must reverse the trial court's summary judgment because the court entered judgment without addressing Nachtrieb's contention the dependency court lacked jurisdiction to remove E.P. from her custody. According to Nachtrieb, her summary judgment opposition repeatedly asserted the dependency court lacked jurisdiction, and therefore the trial court could not grant Defendants' summary judgment motion without deciding whether the dependency court had jurisdiction. Nachtrieb is mistaken.
Although her summary judgment opposition and her briefs in this court asserted the dependency court lacked jurisdiction, Nachtrieb failed to allege the dependency court's lack of jurisdiction as a basis for any of her claims against Defendants. Consequently, Defendants ignored that contention in their motion and the trial court was not required to address it in deciding the motion.
As explained above, a defendant moving for summary judgment is only required to address the claims and liability theories alleged in the plaintiff's operative complaint. A plaintiff may not oppose summary judgment on an unpleaded claim or theory. Instead, the plaintiff must seek to amend the complaint to allege that theory at or before the hearing on the summary judgment motion. The failure to do so forfeits the unpleaded claim or theory as a basis for opposing the summary judgment. (Hutton v. Fidelity National Title Co. (2013) 213 Cal.App.4th 486, 493; Aleksick v. 7-Eleven, Inc. (2012) 205 Cal.App.4th 1176, 1186.)
Nachtrieb's complaint alleged Defendants violated her constitutional rights by fabricating and withholding evidence in the dependency court and failing to conduct a proper investigation. We therefore decide whether the trial court properly granted summary judgment based on Defendants' challenges to those allegations. Because her complaint failed to allege her jurisdictional claim, we may not consider Nachtrieb's arguments that the dependency court lacked jurisdiction because the County improperly dismissed the sexual abuse allegations against Padelsky, improperly amended the petition to add allegations Nachtrieb caused E.P. to make false sexual abuse allegations, failed to provide notice E.P. could be removed from Nachtrieb's custody at the jurisdictional hearing on August 21, 2009, and improperly coerced Nachtrieb to enter into the stipulated agreement on April 14, 2010.
Even if Nachtrieb had alleged claims challenging the dependency court's jurisdiction to remove E.P. from her custody, we could not vacate any of the dependency court's orders on this appeal as Nachtrieb requests. This matter is before us on Nachtrieb's appeal from the judgment the trial court entered after it granted Defendants' summary judgment motion. Accordingly, the only issue before us is whether Defendants are entitled to judgment on each cause of action Nachtrieb alleged against Defendants. All we can do is either affirm or reverse the trial court's judgment as to each cause of action. We cannot grant Nachtrieb any affirmative relief—such as vacating the dependency court's orders—because she did not bring any motion in the trial court seeking affirmative relief. As explained above, summary judgment and summary adjudication cannot be granted in favor of the nonmoving party no matter what the evidence shows. (Cuff, supra, 221 Cal.App.4th at pp. 595-596; Miracle Auto, supra, 68 Cal.App.4th at p. 823.) C. The Trial Court Erred in Granting the Individual Defendants Summary Judgment
1. The Individual Defendants Failed to Negate an Essential Element of Nachtrieb's Claims
The individual defendants obtained summary judgment on Nachtrieb's civil rights claims by arguing Nachtrieb cannot show they violated her constitutional rights by causing the dependency court to remove E.P. from her custody. Our review of the record shows the individual defendants failed to meet their initial burden to show Nachtrieb lacked evidence to establish this essential element of her claims.
"Section 1983 'creates a cause of action in favor of "the party injured" against "[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . , subjects, or causes to be subjected, any . . . person . . . to the deprivation of any rights . . . secured by the Constitution and laws . . . ." (42 U.S.C. § 1983).' [Citation.] [¶] Section 1983 is not itself a source of substantive rights, '"but merely provides 'a method for vindicating federal rights elsewhere conferred.'" [Citations.]' [Citation.] It allows actions against state or local officials for actions that have violated constitutional rights." (McAllister v. Los Angeles Unified School Dist. (2013) 216 Cal.App.4th 1198, 1207 (McAllister).)
Nachtrieb alleged three separate claims for violation of her civil rights under Title 42 United States Code sections 1983, 1985, and 1986. The parties, however, do not distinguish between these claims and treat them all as claims under Section 1983. We therefore do the same.
"There are two essential elements of a claim under section 1983: (1) the conduct complained of was committed by a person acting under color of state law, and (2) the conduct deprived the plaintiff of a right, privilege or immunity secured by the Constitution or laws of the United States." (McAllister, supra, 216 Cal.App.4th at p. 1207; see Arce v. Childrens Hospital Los Angeles (2012) 211 Cal.App.4th 1455, 1472 (Arce).) "'The threshold inquiry [in analyzing a Section 1983 claim] is whether the evidence establishes that [the plaintiffs] have been deprived of a constitutional right.'" (Arce, at pp. 1472-1473.)
"[P]arents have a Fourteenth Amendment liberty interest in the companionship and society of their children. [Citation.] Official conduct that 'shocks the conscience' in depriving parents of that interest is cognizable as a violation of due process [and remediable under Section 1983]." (Wilkinson v. Torres (9th Cir. 2010) 610 F.3d 546, 554; see Lee v. City of Los Angeles (9th Cir. 2001) 250 F.3d 668, 685; Arce, supra, 211 Cal.App.4th at pp. 1472-1473.) "[But] this right is not absolute. The interest of the parents must be balanced against the interests of the state and, when conflicting, against the interests of the children." (Woodrum v. Woodward County (9th Cir. 1989) 866 F.2d 1121, 1125.) "Mere negligence or lack of due care by state officials in the conduct of their duties does not trigger the substantive due process protections of the Fourteenth Amendment and therefore does not state a claim under section 1983." (Woodrum, at p. 1126; see County of Sacramento v. Lewis (1998) 523 U.S. 833, 847.)
The individual defendants contend each of Nachtrieb's civil rights claims fails as a matter of law because they did not engage in any conduct that shocks the conscience and interfered with Nachtrieb's constitutional right to familial association. According to the individual defendants, they appropriately acted to protect E.P. and recommended or requested her removal from Nachtrieb's custody only after the dependency court found E.P.'s sexual abuse allegations against Padelsky were unsupported and Nachtrieb knowingly had caused E.P. to make those false accusations. Before the dependency court made those findings, the individual defendants contend they did nothing that caused Nachtrieb to lose custody of E.P. This challenge, however, fails to address the primary liability theory Nachtrieb's complaint alleged to support her civil rights claims.
As the individual defendants acknowledge, "[i]n essence Nachtrieb asserts [the individual defendants] violated her Fourteenth Amendment rights to familial association by falsifying reports and/or failing to provide exculpatory evidence and by conspiring amongst each other to do so, resulting in her losing custody of E.P." The individual defendants' briefs and separate statement on this issue fail to identify any facts or evidence to show they did not falsify any reports or fail to provide exculpatory evidence. Instead, they simply argue "there is no evidence that the [dependency] court was in any way influenced by any alleged misrepresentations or concealments in the social workers' reports" and "one of the 'key bases' for the court's ruling" was that it found Nachtrieb "'completely without credibility.'"
As explained above, the individual defendants' initial burden required them to present evidence defeating every liability theory Nachtrieb alleged in her complaint. (Carlsen, supra, 227 Cal.App.4th at p. 889.) Moreover, it is not sufficient for the individual defendants to simply argue there is no evidence to support Nachtrieb's liability theory; they must present evidence showing Nachtrieb lacks evidence to support an essential element of each theory. (Aguilar, supra, 25 Cal.4th at p. 855; Zoran, supra, 185 Cal.App.4th at p. 808.) The individual defendants failed to do so, and therefore did not meet their initial burden.
A recognized basis for a Section 1983 claim occurs when a social worker provides false or fabricated evidence and withholds exculpatory evidence in dependency court proceedings. (See, e.g., Hardwick v. County of Orange (9th Cir. 2017) 844 F.3d 1112, 1116-1117 (Hardwick); Costanich v. Dept. of Social & Health Services (9th. Cir. 2010) 627 F.3d 1101, 1111-1112 (Costanich); Beltran v. Santa Clara County (9th Cir. 2008) 514 F.3d 906, 908-909 (Beltran); Marshall v. County of San Diego (2015) 238 Cal.App.4th 1095, 1111-1113 (Marshall).) Moreover, contrary to the individual defendants' contention, the unrebutted claim of falsified evidence could lead a reasonable jury to conclude the dependency court was influenced by the individual defendants' conduct, and the inaccurate and incomplete evidentiary presentation contributed to the finding Nachtrieb lacked credibility.
Although not argued in their brief, and therefore waived (see, e.g., City of Corona v. Liston Brick Co. (2012) 208 Cal.App.4th 536, 542-543), we note the individual defendants' separate statement on the issue of absolute immunity cites declarations stating the individual defendants' reports "reflect an attempt . . . to honestly and accurately describe [their] investigation" and they "did not intentionally exaggerate any of the information . . . and did not intentionally leave out any exculpatory evidence or other information." This too is insufficient to meet the individual defendants' initial burden. Attempting to honestly report information, and not intentionally exaggerate or leave out information, fails to negate Nachtrieb's allegation the individual defendants falsified and fabricated evidence. (See Eriksson v. Nunnink (2011) 191 Cal.App.4th 826, 850 (Eriksson) [carefully phrased separate statement and supporting declarations that fail to squarely rebut allegations in complaint do not meet moving party's initial burden].)
2. The Individual Defendants Failed to Establish They Are Entitled to Absolute Immunity
Although the trial court did not reach the issue, the individual defendants contend we may uphold the court's decision granting summary judgment on the Section 1983 claims because they are entitled to absolute immunity for their actions as a matter of law. We disagree because the individual defendants failed to present evidence establishing their right to absolute immunity.
"Absolute immunity applies to a government official's actions in the course of fulfilling his or her legislative, executive, or prosecutorial duties." (Butler v. Elle (9th Cir. 2002) 281 F.3d 1014, 1021.) It is the "'specific function'" a government official performed, "'and not the role or title of the official, that is the touchstone of absolute immunity.'" (Costanich, supra, 627 F.3d at p. 1108.) Absolute immunity is an affirmative defense that the governmental official bears the burden of establishing. (Slater v. Clarke (9th Cir. 2012) 700 F.3d 1200, 1203; Butler, at p. 1021.)
Absolute immunity applies to the official activities of social workers only when they perform quasi-prosecutorial or quasi-judicial functions in dependency court, such as the decision to institute dependency court proceedings to terminate parental custody. Absolutely immunity does not apply when social workers perform their investigative or administrative functions. (Hardwick, supra, 844 F.3d at p. 1115; Costanich, supra, 627 F.3d at p. 1109; Beltran, supra, 514 F.3d at p. 908.)
Social workers also "are not entitled to absolute immunity from claims that they fabricated evidence during an investigation or made false statements in a dependency petition affidavit that they signed under penalty of perjury, because such actions aren't similar to discretionary decisions about whether to prosecute. A prosecutor doesn't have absolute immunity if he fabricates evidence during a preliminary investigation, before he could properly claim to be acting as an advocate [citation], or makes false statements in a sworn affidavit in support of an application for an arrest warrant." (Beltran, supra, 514 F.3d at p. 908; see Hardwick, supra, 844 F.3d at p. 1116 [complaint alleging social workers fabricated evidence "target[ed] conduct well outside of the social workers' legitimate role as quasi-prosecutorial advocates in presenting the case," and therefore absolute immunity did not apply]; Costanich, supra, 627 F.3d at p. 1109.)
Although the individual defendants acknowledge absolute immunity does not apply when a social worker deliberately fabricates evidence, they contend there is "no evidence" they deliberately fabricated evidence or otherwise used coercive or abusive investigative techniques. The individual defendants, however, cite no evidence to establish their claim that Nachtrieb lacks evidence to support her allegations they fabricated and withheld evidence in the dependency court. Nachtrieb bears the burden at trial to establish the individual defendants fabricated or withheld evidence, but the individual defendants bear the initial burden to negate that claim on summary judgment, and Nachtrieb has no burden until the individual defendants make that showing. (Hawkins, supra, 144 Cal.App.4th at p. 940 ["plaintiff has no evidentiary burden unless the moving defendant has first met its initial burden"; "defendant must 'present evidence and not simply point out through argument' the facts to support summary judgment"].)
As explained above, the separate statement the individual defendants filed in the trial court cites declarations asserting they attempted to honestly describe their investigation to the dependency court and they did not intentionally exaggerate any information or leave out any exculpatory evidence. The individual defendants do not rely on that evidence in this court, but it nonetheless is insufficient to meet their initial burden because it fails to squarely rebut Nachtrieb's allegations. The declarations the individual defendants filed do not clearly deny they fabricated evidence, and therefore do not satisfy their initial burden. (See Eriksson, supra, 191 Cal.App.4th at p. 850.) The individual defendants therefore are not entitled to summary judgment on their absolute immunity affirmative defense.
3. The Individual Defendants Failed to Establish They Are Entitled to Qualified Immunity
The individual defendants also contend their claim of qualified immunity supports the trial court's summary judgment even though the court did not reach the issue. Not so. The individual defendants again failed to present evidence to support this defense.
"Even where . . . government officials have violated citizens' constitutional rights, '[t]he doctrine of qualified immunity protects government officials "from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known."'" (Greene v. Camreta (9th Cir. 2009) 588 F.3d 1011, 1030 (Greene), vacated in part on other grounds by Camreta v. Greene (2011) 563 U.S. 692 and vacated in part on other grounds by Greene v. Camreta (9th Cir. 2011) 661 F.3d 1201; see Pearson v. Callahan (2009) 555 U.S. 223, 231 (Pearson).)
"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. The protection of qualified immunity applies regardless of whether the government official's error is 'a mistake of law, a mistake of fact, or a mistake based on mixed questions of law and fact.'" (Pearson, supra, 555 U.S. at p. 231.)
"'[Our] inquiry [on qualified immunity] turns on the "objective legal reasonableness of the action, assessed in light of the legal rules that were clearly established at the time it was taken."' [Citations.] If a government official 'could . . . have reasonably but mistakenly believed that his or her conduct did not violate a clearly established constitutional right,' he is entitled to qualified immunity." (Greene, supra, 588 F.3d at p. 1031.) To establish the affirmative defense of qualified immunity, a government official therefore must show (1) the facts alleged show the official's conduct did not violate a constitutional right, or (2) the constitutional right was not clearly established. (Costanich, supra, 627 F.3d at p. 1109; see Pearson, supra, 555 U.S. at p. 232; Arce, supra, 211 Cal.App.4th at p. 1473, fn. 10 ["qualified immunity . . . 'is an affirmative defense against section 1983 claims'"].)
"[A] parent ha[s] a clearly established right not to be subject to judicial deception perpetrated by a child protective services worker securing an order removing a child from the parent's custody." (Marshall, supra, 238 Cal.App.4th at p. 1112; see Costanich, supra, 627 F.3d at p. 1114; Greene, supra, 588 F.3d at p. 1035.) Indeed, in Marshall, the Court of Appeal explained, "In light of long-standing criminal prohibitions on making deliberately false statements under oath, no social worker could reasonably believe that she was acting lawfully in making deliberately false statements to the [dependency] court in connection with the removal of a dependent child from a [parent]." (Marshall, at p. 1113, italics & fn. omitted.)
Here, the individual defendants do not dispute that this constitutional right is clearly established or that Nachtrieb alleged they violated this right by fabricating and withholding evidence from the dependency court. Instead, the individual defendants contend they are entitled to qualified immunity because "there is no clearly established law holding that a social worker cannot proceed with a judicial proceeding when there are serious issues and evolving and conflicting opinions as to the cause of a child's physical or emotional injuries." The individual defendants miss the point and fail to meet their initial burden of showing they are entitled to qualified immunity.
To meet their initial burden, the individual defendants had to present evidence showing they were entitled to qualified immunity because either Nachtrieb cannot establish a constitutional violation, or the right she alleged was not clearly established. The individual defendants did neither. As explained above, the individual defendants failed to present evidence showing they did not fabricate or withhold evidence and they do not dispute Nachtrieb had a clearly established constitutional right not to have the individual defendants fabricate and withhold relevant and exculpatory evidence in the dependency court. Rather than address the specific right Nachtrieb alleged they violated, the individual defendants argue the law fails to clearly establish a different right that Nachtrieb does not even allege the individual defendants violated. That is insufficient to meet the individual defendants' initial burden. D. The County Failed to Meet Its Initial Burden to Negate an Essential Element of Nachtrieb's Monell Claim
The County sought summary judgment on Nachtrieb's Monell claim on the ground she had no evidence showing a policy, practice, or custom of the County lead to and caused the individual defendants' violation of Nachtrieb's constitutional rights. The County failed to meet its initial burden on this challenge.
A plaintiff may not hold a municipality or other local government body liable under Section 1983 for a violation of constitutional rights solely because the body employed the individual who violated the plaintiff's rights. "[I]n other words, a municipality cannot be held liable under [section] 1983 on a respondeat superior theory." (Monell, supra, 436 U.S. at p. 691; Jackson v. Barnes (9th Cir. 2014) 749 F.3d 755, 762-763, italics omitted (Jackson).) "To create liability under [section] 1983, the constitutional violation must be caused by 'a policy, practice, or custom of the entity' [citation], or be the result of an order by a policy-making officer." (Tsao v. Desert Palace, Inc. (9th Cir. 2012) 698 F.3d 1128, 1139 (Tsao).) The plaintiff must show "an 'official policy, custom, or pattern' on the part of [the municipality] was 'the actionable cause of the claimed injury.'" (Id. at p. 1143.)
A policy is "'"a deliberate choice to follow a course of action . . . made from among various alternatives by the official or officials responsible for establishing final policy with respect to the subject matter in question."'" (Tsao, supra, 698 F.3d at p. 1143.) A municipality may be held liable for policies of action as well as policies of inaction. (Jackson, supra, 749 F.3d at p. 763; Tsao, at p. 1143.) Policies of action are "those that result in the municipality itself violating someone's constitutional rights or instructing its employees to do so." (Tsao, at p. 1143; see Jackson, at p. 763.) Policies of inaction are "those that result, through omission, in municipal responsibility 'for a constitutional violation committed by one of its employees, even though the municipality's policies were facially constitutional, the municipality did not direct the employee to take the unconstitutional action, and the municipality did not have the state of mind required to prove the underlying violation.'" (Ibid.)
"A policy of inaction or omission may be based on failure to implement procedural safeguards to prevent constitutional violations. [Citation.] To establish that there is a policy based on a failure to preserve constitutional rights, a plaintiff must show, in addition to a constitutional violation, 'that this policy "amounts to deliberate indifference" to the plaintiff's constitutional right' [citation], and that the policy caused the violation, 'in the sense that the [municipality] could have prevented the violation with an appropriate policy.'" (Tsao, supra, 698 F.3d at p. 1143; see Jackson, supra, 749 F.3d at p. 763.) "To show deliberate indifference, [the plaintiff] must demonstrate 'that [the municipality] was on actual or constructive notice that its omission would likely result in a constitutional violation.' [Citation.] Only then does the omission become 'the functional equivalent of a decision by [the municipality] itself to violate the Constitution.' [Citation.] . . . '[P]olicies of omission regarding the supervision of employees . . . can be "policies" or "customs" that create municipal liability . . . only if the omission "reflects a deliberate or conscious choice" to countenance the possibility of a constitutional violation.'" (Tsao, at p. 1145; see Kirkpatrick v. County of Washoe (9th Cir. 2016) 843 F.3d 784, 793-794; Jackson, at p. 763.)
In her fourth cause of action, Nachtrieb alleged the County is liable for the individual defendants' violations of her constitutional rights because the County had a "policy of using trickery, duress, fabrication and/or false testimony and/or evidence, and in failing to disclose exculpatory evidence, in preparing and presenting reports and court documents to the court, causing an interference with [Nachtrieb's] rights, including those as to familial relations." She also alleged the County "act[ed] with deliberate indifference in implementing a policy of inadequate training, and/or [in] failing to train its officers, agents, employees and state actors, in providing the constitutional protections guaranteed to individuals, including those under the Fourteenth Amendment, when performing actions related to child abuse and dependency type proceedings." She further alleged the County has a "policy, practice, or custom of making knowingly false allegations of misconduct in juvenile dependency petitions and/or reports as a means of intimidating parents, by coercion, into accepting the wrongful recommendations and orders based on falsified evidence . . . ." Finally, Nachtrieb alleged the County was "on notice that on March 23, 2007, a jury in [Fogerty-Hardwick] reached a verdict, concluding that [the County] was deliberately indifferent to the need to train and/or supervise its employees adequately, leading to the deprivation of the plaintiff's right to familial association with her daughter, in violation of the Fourteenth Amendment to the United States Constitution, and that the wrongdoing was not an isolated incident."
The County contends this claim fails as a matter of law because Nachtrieb "made no showing that the County had a policy, custom or practice that was the cause of a violation of her constitutional rights" or that "the County had an inadequate training program." The County, however, failed to meet its initial summary judgment burden on this challenge because it failed to present any evidence to show Nachtrieb lacked evidence to establish any element of this cause of action. As explained above, Nachtrieb had no burden to present any evidence until the County presented evidence sufficient to negate an essential element of Nachtrieb's claim. The County cannot meet its initial burden by merely arguing there is no evidence to support Nachtrieb's claim. (Hawkins, supra, 144 Cal.App.4th at p. 940; see Zoran, supra, 185 Cal.App.4th at p. 805.)
The County also argues it is entitled to summary judgment on this cause of action because the trial court granted summary judgment on Nachtrieb's causes of action under Section 1983 against the individual defendants. Without the causes of action against the individual defendants, the County contends Nachtrieb's cause of action against it cannot survive summary judgment. This argument fails because, as explained above, we conclude the trial court erred in granting the individual defendants summary judgment on Nachtrieb's Section 1983 claims.
The County also contends we must treat as undisputed the facts it identified in its separate statement about the training it provides its employees because Nachtrieb failed to cite any evidence disputing the County's description of its training. Those facts, however, even if undisputed, are not sufficient to meet the County's initial burden because the facts merely state that each of the individual defendants attended a six-week core training before they started working in their current positions, and they complete a minimum of 40 hours of additional training every two years. The County fails to identify the specific nature of its training. Most importantly, the County does not state its training instructs employees to be truthful, include all exculpatory evidence in their reports, and not to use intimidation during investigations. In short, the County fails to show its trains its employees not to violate a parent's constitutional rights in the manner Nachtrieb alleged. E. The Parties Waived All Challenges to the Trial Court's Ruling on the Summary Adjudication Issues They Failed to Address in Their Briefs
In their motion, Defendants sought summary adjudication on 15 issues. The parties' briefing in this court, however, failed to address each of those issues. Consequently, the parties waived all challenges to the trial court's ruling on the issues they did not address. (See, e.g., Estate of Sobol (2014) 225 Cal.App.4th 771, 783; Behr v. Redmon (2011) 193 Cal.App.4th 517, 538 [failure to brief issue "constitutes a waiver or abandonment of the issue on appeal"].) To avoid confusion on remand, we summarize each issued identified in Defendants' notice of motion and the issue's status.
On issue nos. 1, 3, 5, and 7, the individual defendants sought summary adjudication on Nachtrieb's first cause of action under Section 1983 on the ground she could not establish the individual defendants interfered with her familial relationship in an unconstitutional manner. The trial court granted the motion on these issues. As explained above, we reverse because the individual defendants failed to address Nachtrieb's principal liability theory regarding the fabrication and withholding of evidence.
On issue nos. 2, 4, 6, and 8, the individual defendants sought summary adjudication on Nachtrieb's first three causes of action for civil rights violations based on the affirmative defenses of qualified and absolute immunity. The trial court did not decide whether the individual defendants were entitled to immunity based on its ruling on the first set of issues, but the individual defendants rely on these defenses as alternative grounds for upholding the court's ruling. As explained above, the individual defendants failed to meet their initial summary adjudication burden on these defenses, and therefore they do not provide a basis for upholding the court's ruling.
On issue no. 9, defendant Ingrid Harita sought summary adjudication on Nachtrieb's first three causes of action because she did not participate in the investigation or dependency court proceedings regarding Nachtrieb and she was entitled to qualified immunity. The trial court lumped this issue in with the first eight issues without specifically ruling on it. This issue is moot because Nachtrieb dismissed Harita with prejudice well before the court ruled on Defendants' motion.
On issue no. 10, the individual defendants sought summary adjudication on Nachtrieb's three civil rights claims and her declaratory relief claim on the ground the dependency court's findings and orders barred those claims. The trial court ruled this issue was moot based on its ruling on the other issues discussed above. On appeal, the individual defendants do not raise this issue as a basis for upholding the trial court's judgment, and therefore we do not decide it.
On issue no. 11, the County sought summary judgment on behalf of the Orange County Department of Children and Family Services on the ground it is not a separate legal entity and cannot be sued in its own name. The trial court granted the motion on this issue. Because Nachtrieb fails to address this issue on appeal, she waived it. We therefore affirm the court's judgment in favor of the Orange County Department of Children and Family Services.
On issue no. 12, the County sought summary adjudication on Nachtrieb's Section 1983 claim on the ground it cannot be held liable for the individual defendants' violation of Nachtrieb's civil rights based on a respondeat superior theory. The trial court granted the County's motion on this issue and Nachtrieb waived all challenges to this issue by failing to address it on appeal. Affirming the court's decision to grant the County summary adjudication on the Section 1983 claim, however, does not affect Nachtrieb's separate Monell claim against the County.
On issue no. 13, the County sought summary adjudication on Nachtrieb's Monell claim. The County argued there was no underlying violation of Nachtrieb's rights to support this claim, the County had no policy, practice, or custom that caused any violation of Nachtrieb's rights, and the County adequately trained its employees. The trial court granted the County summary adjudication based on its ruling the Section 1983 claim failed as to the individual defendants. As explained above, we reverse the trial court's ruling on this issue because the court erred in granting the individual defendants summary adjudication on the Section 1983 claim and the County failed to meet its initial summary adjudication burden on the other challenges to this cause of action.
On issue no. 14, Defendants sought summary adjudication on Nachtrieb's declaratory relief claim on the ground it was duplicative of the other causes of action alleged in the complaint. The trial court granted the motion, concluding the declaratory relief claim was redundant and superfluous. We affirm because Nachtrieb did not address this claim on appeal and therefore waived all challenges to the court's ruling.
On issue no. 15, the individual defendants sought summary adjudication on Nachtrieb's punitive damages claim. The trial court concluded this issue was moot based on its ruling on the other issues. The individual defendants do not argue this issue on appeal, and therefore we do not decide it.
Based on our conclusion the trial court erred in granting the individual defendants summary adjudication on the civil rights causes of action and the County summary adjudication on the Monell claim, we need not address Nachtrieb's challenge to the court's decision denying her motion for new trial.
III
DISPOSITION
The judgment is reversed in part and affirmed in part. The judgment is reversed on the first, second, and third causes of action against the individual defendants for violation of Nachtrieb's civil rights, and the fourth causes of action against the County under Monell. The judgment is affirmed on first cause of action against the County, the fifth cause of action for declaratory relief against Defendants, and on all causes of action against the Orange County Department of Children and Family Services. Nachtrieb shall recover her costs on appeal.
ARONSON, ACTING P. J. WE CONCUR: IKOLA, J. THOMPSON, J.