Marshall v. County of San Diego

Filed 7/22/15
CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

RITA MARSHALL, D063675

Plaintiff and Appellant,

v. (Super. Ct. No.
37-2008-00085115-CU-CR-CTL)
COUNTY OF SAN DIEGO et al.,

Defendants and Respondents.

APPEAL from a judgment of the Superior Court of San Diego County, Ronald S.

Prager, Judge. Affirmed.

Law Offices of Shawn A. McMillan, Shawn A. McMillan, Stephen D. Daner and

Samuel H. Park for Plaintiff and Appellant.

Thomas E. Montgomery, County Counsel and David L. Brodie, Deputy County

Counsel for Defendants and Respondents.

I.

INTRODUCTION

Shortly after his birth in 2003, the County of San Diego Health and Human

Services Agency (the Agency) placed a dependent child named J.J. with appellant Rita
Marshall. Marshall cared for J.J. for two and a half years and began the process of

adopting him. However, in June 2006, the Agency commenced proceedings that led to

J.J.'s removal from Marshall's care and his placement in another home for adoption.

Marshall filed this action against the County of San Diego (the County) and

several County social workers who were involved in the proceedings that led to J.J.'s

removal. In the causes of action relevant to this appeal, Marshall brought two claims

pursuant to 42 United States Code section 1983 (hereafter section 1983) against the social

workers in which she claimed that the social workers violated her right to due process in

removing J.J. without providing her adequate notice and an opportunity to be heard, and

in making deliberately false statements to the trial court that led to the removal. Marshall

also brought a section 1983 claim against the County, alleging that the social workers

violated her constitutional rights pursuant to a County custom or policy.

In summary judgment proceedings, the trial court concluded that the social

workers were entitled to qualified immunity with respect to Marshall's claims against

them because there was no evidence from which a reasonable jury could find that the

social workers had violated Marshall's "clearly established" constitutional rights.

(Carroll v. Carman (2014) ___U.S. ___ [135 S.Ct. 348, 350] (Caroll).) ["A government

official sued under § 1983 is entitled to qualified immunity unless the official violated a

statutory or constitutional right that was clearly established at the time of the challenged

conduct"].) The court also concluded that the County was entitled to judgment as a

matter of law with respect to Marshall's section 1983 claim.

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 On appeal, Marshall contends that the trial court erred in granting summary

judgment for the County and the social workers. With respect to Marshall's claims based

on the social workers having purportedly made deliberately false statements to the trial

court, we conclude that Marshall had a clearly established constitutional right not to have

J.J.'s placement terminated based on a social worker's statement that was either

deliberately false or made with reckless disregard for its truth. However, we further

conclude that the social workers are entitled to qualified immunity with respect to

Marshall's claims premised on this theory of liability because there is no evidence from

which a reasonable jury could find that that J.J.'s placement with Marshall was terminated

based on statements that were either deliberately false or made with reckless disregard for

their truth. We also reject the remainder of Marshall's other claims, and affirm the

judgment.

II.

FACTUAL AND PROCEDURAL BACKGROUND

A. Factual background

1. J.J. is placed in Marshall's Care

J.J. was born on November 22, 2003. Within days of his birth, the trial court

declared J.J. a dependent of the court and the Agency placed him with Marshall.

In June 2004, Marshall informed the Agency that she wanted to adopt J.J.

Throughout his placement with Marshall, respondent Noreen Harmelink, the

primary social worker assigned to J.J., reported to the trial court that J.J. was doing

well in Marshall's home.

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 2. Marshall initiates the adoption process for J.J.

The court terminated the parental rights of J.J.'s birth parents in May 2005,

and, in November 2005, entered an order setting adoption as J.J.'s permanent plan.

In December 2005, the Agency received forms from Marshall requesting to initiate the

adoption process for J.J.

Agency adoptions applicant worker Elizabeth Edwards met with Marshall in

March 2006 to begin the adoption homestudy process. Edwards gave Marshall forms

to fill out and return, including the formal "Application to Adopt" form. Marshall

never returned the forms.

3. The Agency seeks to remove J.J. from Marshall's home

On June 19, 2006, respondent Linda Johanesen, the Agency social worker for two

other children placed in Marshall's home, K.B. and C.B., verbally informed Marshall that

the Agency was planning to remove K.B., C.B. and J.J. from Marshall's home. On June

26, Marshall filed an objection to the Agency's proposal to remove J.J. with the trial

court.1 Marshall also requested that the court formally designate her as J.J.'s prospective

adoptive parent.

1 Marshall's objection was marked "received" by the court on June 26, but was not
stamped "filed" until July 12.

4
 Johanesen and her supervisor, respondent Robin Thompson, filed an ex parte

application on June 28, 2006 to remove J.J. from Marshall's home.2 The June 28 ex parte

application stated in relevant part:

"The Agency received two recent CPS [Child Protective Services]
referrals on the [Marshall] home for physical discipline. Currently,
there are 11 total referrals and have been 11 holds placed on this
home. This home is currently on hold. [Marshall] has not complied
with requests for the adoptive homestudy and her homestudy has
been closed as unapproved.

"Recent psychological evaluations recently performed on two other
children in this home recommend that the caregiver's [sic] received
[sic] psychoeducation to develop appropriate discipline strategies. It
is the Agency's position that [Marshall] will not comply with the
recommendation since she has not complied with the requirements
for the adoptive homestudy. Attached is the Addendum Report for
[C.B.] and [K.B.] who also reside in this home. . . . The Agency is
asking to remove these children also. [Marshall] has been given the
proper [statutory] notice. [Marshall] has made no attempt to contest
the children's removal."

That same day, June 28, the trial court granted the application and vacated J.J.'s

placement with Marshall, effective that day.3

4. The July 20 hearing

The trial court held a hearing on July 20 on Marshall's objection to the removal

and request to be designated J.J.'s prospective adoptive parent. Just before the hearing

began, Harmelink gave Marshall a copy of a July 20 addendum report that outlined the

2 Harmelink was on vacation at the time the ex parte application was filed.

3 J.J. was not actually removed from Marshall's home until October 6, 2006.
5
reasons for the Agency's request that the court reaffirm its decision to vacate J.J.'s

placement with Marshall.

In the report, in support of its removal recommendation, the Agency noted that

there had been a recent referral alleging physical abuse on a child in Marshall's home,

and that there had been 11 different child abuse referrals since 2001, which had

resulted in 11 different "holds" on Marshall's home. The report also stated that

Marshall "typically maintains six [foster] children in her care," that the children were

often young and with special needs, and that Marshall "works full time." The report

stated that Marshall appeared to be "stretched beyond her capability to be physically

and emotionally available to the children in the manner one would anticipate from an

adopting caregiver." The Agency also noted that K.B. and C.B. had recently

undergone psychological evaluations, and that the psychologist had "expressed

concerns regarding the care these children have received in [Marshall's] home." The

report also stated that Marshall had failed to follow through with the adoptive

homestudy process with J.J.

The trial court briefly adjourned the hearing in order to give Marshall time to

read the addendum report. After the brief recess, the court resumed the hearing. At the

conclusion of the hearing, the court entered an order overruling Marshall's objection to

the removal. The court also rejected Marshall's request to be designated J.J.'s

prospective adoptive parent.

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 5. Additional proceedings

Marshall filed a writ petition in this court seeking review of the July 20 order.

While Marshall's writ petition was pending, the Agency removed J.J. from Marshall's

home and placed him in a new home.

On October 25, 2006, this court issued an opinion vacating the trial court's July

20 order. (Rita M. v. Superior Court (Oct. 25, 2006, D049099) [nonpub. opn.] (Rita M.

I).) The court concluded that Marshall was "not provided sufficient notice that J.J.

would be removed and [Marshall] would not be approved to adopt him" (ibid.), and

ordered that Marshall be provided a new hearing "where she will have an adequate

opportunity to address the Agency's concerns about her care of J.J." (Ibid.)

Apparently unaware that the Agency had removed J.J. from Marshall's home between

the time Marshall filed her writ petition and the time of oral argument on the

petition,4 this court stated, "No change of J.J.'s current placement is required pending

this hearing." (Ibid.)

On remand, approximately seven months later, the trial court held a new

hearing and concluded that removing J.J. from his new adoptive home would not be in

his best interest.5 Marshall filed a second writ petition in which she contended that

4 In opposing respondents' motion for summary judgment, Marshall offered the
declaration of the attorney who represented her in her appeal from the July 20 order. The
attorney stated that he recalled County counsel informing this court at oral argument that
J.J. was still living with Marshall.

5 Marshall stated in her declaration that the hearing on remand was delayed "due to
a number of continuances."
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the trial court erred in failing to place J.J. in her home for adoption. This court denied

Marshall's petition. (Rita M. v. Superior Court (Sept. 21, 2007, D051025) [nonpub.

opn.] (Rita M. II).)

B. Procedural history

1. The complaint

Marshall filed a complaint in June 2008 against the County and various County

social workers, including Thompson, Johanesen, and Harmelink (we refer to Thompson,

Johanesen, and Harmelink collectively as "the social workers").6

As relevant to this appeal, Marshall brought claims pursuant to section 1983

against both the social workers and the County.7 Marshall's claims against the social

workers alleged violations of her right to due process (third cause of action) and her due

process right to familial association (fourth cause of action). Both causes of action

against the social workers are premised on two sets of purported constitutional violations.

First, Marshall claims that the social workers violated her constitutional rights by

"removing . . . J.J. from the care, custody, and control of his identified prospective

adoptive parent, [Marshall], without exigent circumstances, and without providing

6 Marshall's complaint also named several additional County social workers as
defendants. However, those defendants are not respondents in this appeal.

7 "Section 1983 provides a cause of action against state actors who violate an
individual's rights under federal law." (Filarsky v. Delia (2012) ___ U.S. ___ [132 S.Ct.
1657, 1660].) In addition, "when execution of a government's policy or custom . . .
inflicts the injury . . . the government as an entity is responsible under [section] 1983."
(Monell v. Department of Social Services (1978) 436 U.S. 658, 694 (Monell).)

8
adequate notice or an opportunity to be heard . . . . "8 Second, Marshall contends that the

social workers violated her constitutional rights by "using false and fabricated evidence

and testimony . . . during the pendency of the dependency proceedings . . . ."9

With respect to the County, Marshall claimed that the social workers committed

violations of her constitutional rights pursuant to a County policy or custom.

2. Respondents' first motion for summary judgment and/or adjudication

Respondents filed a motion for summary judgment and/or adjudication in March

2012. With respect to Marshall's judicial deception theory of liability, the trial court

ruled that Marshall had presented sufficient evidence from which a jury could find that

the social workers had violated her due process right to be free from judicial deception

with respect to statements made in the June 28 ex parte application. However, the court

concluded that the social workers were entitled to qualified immunity as to this theory of

liability on the ground that Marshall's right to be free from judicial deception was not

clearly established at the time the social workers acted.

With respect to Marshall's notice theory of liability, the trial court ruled that

Marshall had a clearly established right to notice and a full hearing before J.J.'s

placement with her could be terminated, and that there was a triable issue of fact with

respect to whether the social workers had provided Marshall with adequate notice of the

June 28 ex parte hearing. Accordingly, the court ruled that the social workers were not

8 For ease of reference, we refer to this as the "notice" theory of liability.

9 For ease of reference, we refer to this as the "judicial deception" theory of liability.
9
entitled to judgment as a matter of law on their qualified immunity defense with respect

to Marshall's notice theory of liability.

The court denied respondents' motion with respect to Marshall's claim against the

County on the ground that the only evidence of the County's policies and customs was a

declaration of a County employee who lacked the knowledge necessary to make the

statements set forth in the declaration.

3. County's motion for summary adjudication

The court permitted the County to file a second motion for summary adjudication

of the section 1983 unlawful policies claim against it. The court reasoned in part that the

denial of the first motion was based entirely on the fact that the County had supported its

motion with a declaration from "the wrong person," and that permitting a successive

motion had the potential to obviate a lengthy trial.

The County filed a motion for summary adjudication on the unlawful practices

claim in August 2012. The Court granted the motion, reasoning that Marshall had failed

to show that any of her alleged constitutional violations were caused by a County custom

or policy.

4. The social workers' motion for summary judgment

The social workers filed a request for authorization to file an additional motion for

summary judgment with respect to Marshall's notice theory of liability in November

2012. In support of this request, the social workers contended that they had provided the

required statutory notice and that this issue had not been addressed in the prior motion.

The court permitted the social workers to file the new motion for summary judgment.

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 The social workers filed a motion for summary judgment on Marshall's notice

theory of liability in December 2012. In their motion, the social workers contended that

it was undisputed that Johanesen had provided Marshall with oral notice of the Agency's

intent to remove J.J. from Marshall nine days prior to Thompson and Johanesen's filing

of the June 28, 2006 ex parte application and that they were entitled to qualified

immunity for any deficiencies in the adequacy of the notice. The court granted the

motion, ruling that a reasonable social worker would not have known that she was

violating Marshall's due process rights.

5. The final judgment and appeal

The trial court entered a final judgment in favor of respondents in January 2013,

from which Marshall timely appealed.

III.

DISCUSSION

A. The trial court had inherent authority to entertain successive motions for summary
judgment and/or adjudication

Marshall contends that the trial court erred in permitting respondents to file

successive motions for summary judgment and/or adjudication. Citing Le Francois v.

Goel (2005) 35 Cal.4th 1094, 1109 (Le Francois), Marshall contends that "[a] trial court

lacks authority to grant a repetitive motion, where the requirements of [Code of Civil

Procedure] section 437c[, subdivision] (f)(2) are not satisfied." Marshall's contention

raises a question of law, which we review de novo. (See People v. Lujan (2012) 211

Cal.App.4th 1499, 1507 [determining whether a trial court has the inherent authority to

11
take an action is reviewed de novo]; City of Dana Point v. California Coastal

Commission (2013) 217 Cal.App.4th 170, 187 [claims raising an issue of statutory

interpretation are reviewed de novo].)

1. Governing law

Code of Civil Procedure section 437c, subdivision (f)(2) provides:

"A motion for summary adjudication may be made by itself or as an
alternative to a motion for summary judgment and shall proceed in
all procedural respects as a motion for summary judgment.
However, a party may not move for summary judgment based on
issues asserted in a prior motion for summary adjudication and
denied by the court, unless that party establishes to the satisfaction
of the court, newly discovered facts or circumstances or a change of
law supporting the issues reasserted in the summary judgment
motion."

In Le Francois, supra, 35 Cal.4th at pages 1096-1097, the Supreme Court

concluded that "[Code of Civil Procedure] section[] 437c, subdivision (f)(2) . . .

prohibit[s] a party from making renewed motions not based on new facts or law, but

do[es] not limit a court's ability to reconsider its previous interim orders on its own

motion, as long as it gives the parties notice that it may do so and a reasonable

opportunity to litigate the question." The Le Francois court agreed with a "line of

cases . . . which holds that [Code of Civil Procedure] section[] 437c . . . validly limit[s]

the parties' ability to make repetitive motions but do[es] not limit the court's authority to

act on its own motion." (Le Francois, supra, at p. 1103.) The Le Francois court

reasoned, "On its face, [Code of Civil Procedure, section 437c, subdivision (f)(2)] merely

says that 'a party may not' make a motion that violates its provisions. (Italics added.) It

says nothing limiting the court's ability to act." (Le Francois, supra, at p. 1105.)

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 2. Application

Marshall contends that the trial court has inherent authority under Le Francois

only to correct its own errors, and that Le Francois does not permit a trial court to allow

a party to file "repetitive motions" for summary judgment and/or adjudication. We do

not read Le Francois so narrowly. The Le Francois court noted that the text of Code of

Civil Procedure section 437c, subdivision (f)(2) restricts only a party's ability to file a

motion, and does not restrict a court's inherent authority in any manner. (Le Francois,

supra, 35 Cal.4th at p. 1105.) In addition, to interpret Code of Civil Procedure section

437c, subdivision (f)(2) as prohibiting a court from allowing a party to file a successive

summary judgment or adjudication motion would raise the "difficult constitutional

question[]" (Le Francois, supra, at p. 1105) of whether the Legislature may restrict a

court's authority in such a fashion. (See id. at p. 1104 [noting that the court's

interpretation of Code Civ. Proc., § 437c, subd. (f)(2) as restricting only parties' acts

obviated the need to consider whether it would be constitutional for the Legislature to

"limit the court's ability to reconsider its own rulings"].) In contrast, interpreting Code of

Civil Procedure section 437c, subdivision (f)(2) as permitting a trial court to exercise its

inherent authority to permit a party to file a successive motion for summary judgment

and/or adjudication is both consistent with the Le Francois court's interpretation of the

statute and avoids this difficult constitutional question. (See Myers v. Philip Morris

Companies, Inc. (2002) 28 Cal.4th 828, 846-847 ["An established rule of statutory

construction requires us to construe statutes to avoid 'constitutional infirmit[ies]' "];

accord Le Francois, supra, at p. 1105, citing Myers.)

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 Marshall also contends that the trial court's authority was limited to "grant[ing]

reconsideration of its own motion . . . based on the evidence originally submitted."

(Quoting In re Marriage of Barthold (2008) 158 Cal.App.4th 1301, 1314 (Barthold),

italics in original.) In Barthold, the Court of Appeal applied Le Francois and concluded

"that the trial court's inherent authority to correct its errors applies even when the trial

court was prompted to reconsider its prior ruling by a motion filed in violation of [Code

of Civil Procedure] section 1008." (Barthold, supra, at pp. 1303-1304.) In rejecting a

party's contention that such a holding would encourage the filing of unwarranted motions

for reconsideration, the Barthold court stated, "[W]e stress that in order to grant

reconsideration on its own motion, the trial court must conclude that its earlier ruling was

wrong, and change that ruling based on the evidence originally submitted." (Id. at p.

1314.)

Barthold does not preclude the trial court's action in this case. The Barthold court

was discussing a trial court's authority to grant reconsideration of a prior order based on a

motion filed in violation of Code of Civil Procedure section 1008. In contrast, in this

case, the trial court did not reconsider a prior order. It permitted respondents to file new

motions for summary judgment and/or adjudication. Thus, even assuming that the

Barthold court was correct in its statement that a trial court may grant reconsideration of

a prior order on its own motion based only on the evidence originally submitted,10

neither Barthold nor Le Francois limits a trial court's authority to permit a party to file a

10 The Barthold court did not cite any portion of Le Francois for this proposition, or
any other authority.
14
successive motion for summary judgment and/or adjudication supported by evidence that

was not presented in connection with a prior motion.

Accordingly, we conclude that the trial court did not err in permitting respondents

to file successive motions for summary judgment and/or adjudication.

B. The trial court did not err in granting summary judgment in favor of respondents

Marshall claims that the trial court erred in granting summary judgment in favor of

respondents. Specifically, Marshall contends that the trial court erred in granting

judgment as a matter of law for the social workers on her section 1983 claims against

them. Marshall also argues that the trial court erred in granting judgment as a matter of

law for the County on Marshall's section 1983 claim asserted against the County.

1. Relevant summary judgment law

A moving party is entitled to summary judgment when the party establishes that it

is entitled to the entry of judgment as a matter of law. (Code Civ. Proc., § 437c, subd.

(c).) A defendant may make this showing by demonstrating that the plaintiff cannot

establish one or more elements of all of his causes of action, or that the defendant has a

complete defense to each cause of action. (Id., subd. (o).) This court reviews an order

granting a motion for summary judgment de novo. (See, e.g., Jones v. Wachovia Bank

(2014) 230 Cal.App.4th 935, 945.) "We will affirm a summary judgment if it is correct

on any ground, as we review the judgment, not its rationale." (Overstock.com, Inc. v.

Goldman Sachs & Co. (2014) 231 Cal.App.4th 513, 528, fn. 10.)

15
 2. The social workers are entitled to qualified immunity as matter of law on
Marshall's claims premised on their purported failure to provide her with
notice and a full hearing before the termination of J.J.'s adoptive placement

a. Marshall's claims

Marshall's section 1983 claims against Thompson and Johanesen are based in part

on her allegation that they "failed to provide notice reasonably calculated to apprise

[Marshall] of the location, date, and time of . . . [an] ex parte hearing, which was held on

June 28, 2006" at which the court vacated the Agency's placement of J.J. with Marshall.

Marshall also contends that "Harmelink failed to provide [Marshall] a copy of a [July 20,

2006] Addendum Report with sufficient time to afford her an opportunity to properly and

competently defend against the accusations leveled against her."11

Marshall contends that these actions violated her constitutional right as a

prospective adoptive parent, "to notice and 'a full hearing' before the adoptive placement

can be terminated . . . ." (Adoption of Baby Girl B. (1999) 74 Cal.App.4th 43, 51.)

b. The defense of qualified immunity

"A government official sued under [section] 1983 is entitled to qualified immunity

unless the official violated a statutory or constitutional right that was clearly established

at the time of the challenged conduct. [Citation] A right is clearly established only if its

contours are sufficiently clear that 'a reasonable official would understand that what he is

doing violates that right.' [Citation] In other words, 'existing precedent must have placed

11 Marshall's third and fourth causes of action are also premised in part on her claim
that the social workers violated her due process right to be free from deception in the
presentation of evidence to the courts. (See pt. III.B.3., post.)
16
the statutory or constitutional question beyond debate.' " (Carroll, supra, 135 S.Ct. at p.

350.) Further, the United States Supreme Court has " 'repeatedly told courts . . . not to

define clearly established law at a high level of generality,' [citation] since doing so

avoids the crucial question whether the official acted reasonably in the particular

circumstances that he or she faced." (Plumhoff v. Rickard (2014) ___ U.S. ___ [134 S.Ct.

2012, 2023] (Plumhoff).)

The doctrine " 'protects "all but the plainly incompetent or those who knowingly

violate the law" ' " (Carroll, supra, 135 S.Ct. at p. 350), and "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 v. Callahan (2009) 555

U.S. 223, 231 (Pearson).)

Finally, because "qualified immunity is 'an immunity from suit rather than a mere

defense to liability . . . it is effectively lost if a case is erroneously permitted to go to

trial.' ]" (Pearson, supra, 555 U.S. at p. 231.) For this reason, the Supreme Court has "

'repeatedly . . . stressed the importance of resolving immunity questions at the earliest

possible stage in litigation.' " (Id. at pp. 231-232.)

c. The manner by which Thompson and Johanesen provided notice of
the Agency's intent to remove J.J. from her care did not violate
Marshall's clearly established constitutional right

Marshall contends that Thompson and Johanesen violated her constitutional right

to due process by failing to provide her with notice of the June 28, 2006 ex parte hearing

at which the court entered an order vacating J.J.'s placement with Marshall. Marshall

argues that in failing to provide her with notice of the hearing, Thompson and Johanesen

17
violated her right "to notice and 'a full hearing' before the adoptive placement [could] be

terminated . . . ." (Adoption of Baby Girl B., supra, 74 Cal.App.4th at p. 51, citing,

among other cases, C.V.C. v. Superior Court (1973) 29 Cal.App.3d 909 (C.V.C.).) We

are not persuaded.

Marshall acknowledges in her complaint that on June 19, 2006, Johanesen

"verbally informed her that [the Agency] was going to remove J.J. . . . ." Marshall further

acknowledges that Johanesen told Marshall that "if [Marshall] objected to the removal,

she would have to go to court and fill out some paperwork."

In providing notice in this manner, Johanesen complied with the statutory scheme

governing the removal of a child from a prospective adoptive parent of a dependent

child.12 Welfare and Institutions Code, section 366.26, subdivision (n)(3) provides that

"[p]rior to a change in placement and as soon as possible after a decision is made to

remove a child from the home of a designated prospective adoptive parent, the agency

shall notify . . . the designated prospective adoptive parent . . . of the proposal . . . ."

Johanesen's June 19 verbal notice provided Marshall with notice of the Agency's intent to

change the placement of J.J. prior to the actual change in placement, and Marshall

presents no argument that the notice was not provided as soon as possible after the

decision was made to remove J.J. from Marshall's home. Further, Marshall cites no

authority indicating that the oral notice that Johanesen undisputedly provided is

12 We assume for purposes of this discussion that Marshall was a prospective
adoptive parent in June 2006, notwithstanding that in July 2006, the trial court denied her
request to be designated as such.
18
insufficient under Welfare and Institutions Code section 366.26, subdivision (n), and

presents no argument that the form of notice mandated by statute fails to ensure the

notice constitutionally required as stated in Adoption of Baby Girl B., supra, 74

Cal.App.4th at page 51.

To the extent that Marshall may be understood to be contending that Thompson

and Johanesen violated her right to due process by filing an ex parte application on June

28, because Marshall had filed an objection to the removal on June 26,13 we reject this

argument, as well. J.J.'s placement with Marshall was not terminated until October 6

when the Agency actually removed J.J. from Marshall, and the court held a hearing on

July 20 (well before October 6) on Marshall's objection to the removal.14 The liberty

interest that invokes the protections of due process is notice and an opportunity to be

heard before the child is removed. (See, e.g., C.V.C., supra, 29 Cal.App.3d at p. 920

["Here petitioners were accorded a judicial hearing before the child was removed but the

court erred to their prejudice by restricting its review"]; Marten v. Thies (1979) 99

Cal.App.3d 161, 169 ["The court in C.V.C. discovered that the Fourteenth Amendment's

guarantee of due process requires that prospective adoptive parents be given notice and

13 Marshall filed a declaration stating that she served the Agency with her objection
by way of certified mail on June 26. Johanesen and Thompson both stated in declarations
that "[a]t no time before (and including) June 28, 2006 did I become aware that Ms.
Marshall objected to the removal of J.J."

14 Welfare and Institutions Code section 366.26, subdivision (n)(3)(A) provides in
relevant part: "Within five court days or seven calendar days, whichever is longer, of the
date of notification [of the Agency's provision of notice of the proposal to remove a
dependent child] . . . the designated prospective adoptive parent may file a petition with
the court objecting to the proposal to remove the child . . . ."
19
an opportunity to be heard before the termination of status and removal of the child from

the preadoptive placement except in extraordinary circumstances"].) Because J.J. was

not removed from Marshall's home until more than three months after the ex parte

hearing and after the court had conducted a hearing on Marshall's objection, Thompson

and Johanesen's failure to provide Marshall with notice of the June 28 ex parte hearing

did not violate Marshall's right "to notice and 'a full hearing' before the adoptive

placement can be terminated." (Adoption of Baby Girl B., supra, 74 Cal.App.4th at p.

51.)15

Accordingly, we conclude that the trial court properly determined that Thompson

and Johanesen are entitled to qualified immunity with respect to Marshall's section 1983

claims against them insofar as those claims are premised on Thompson and Johanesen's

failure to provide Marshall with notice of the June 28 ex parte hearing.

15 Marshall contends that, in light of Rita M. I, supra, D049099, the doctrine of
collateral estoppel establishes that her "procedural due process rights were violated." In
order for the doctrine of collateral estoppel to apply, " '[i]t must appear that the precise
question was raised and determined in the former suit.' " (Shopoff & Cavallo LLP v.
Hyon (2008) 167 Cal.App.4th 1489, 1520.) The Rita M. I court did not specifically
address whether Rita's due process rights were violated by the Agency's failure to provide
her with notice of the June 28 ex parte hearing. Accordingly, we reject Marshall's
contention that the doctrine of collateral estoppel applies with respect to her contention
that Thompson and Johanesen violated her right to due process by failing to provide her
with notice of the June 28 ex parte hearing.
20
 d. Harmelink's failure to provide Marshall with the July 20 addendum
report prior to the hearing did not violate Marshall's clearly
established constitutional right

Marshall contends that Harmelink violated her right to due process by failing to

provide her with a copy of the July 20 addendum report sufficiently in advance of the

July 20 hearing to provide her with time to prepare a response to the Agency's

"accusations." Citing this court's decision in Rita M. I, supra, D049099, Marshall

contends that this action was "unfair, and was in violation of her due process rights."

Even assuming that Harmelink's failure to provide Marshall with the report until

the commencement of the July 20 hearing violated Marshall's right to due process,

Marshall has presented no authority or argument demonstrating that this failure violated a

clearly established constitutional right (see Carroll, supra, 135 S.Ct. at p. 350 ["A right is

clearly established only if its contours are sufficiently clear that 'a reasonable official

would understand that what he is doing violates that right' [citation]"]), and we are aware

of no such authority.

We also reject Marshall's suggestion that Harmelink's failure to provide the report

earlier violated Marshall's clearly established right to a "full hearing" before the

termination of J.J.'s adoptive placement. (Adoption of Baby Girl B., supra, 74

Cal.App.4th at p. 51). "[A] defendant cannot be said to have violated a clearly

established right unless the right's contours were sufficiently definite that any reasonable

official in the defendant's shoes would have understood that he was violating it."

(Plumhoff, supra, 134 S.Ct. at p. 2023.) Since Marshall has pointed to no authority

demonstrating that Marshall's right to a "full hearing" (Adoption of Baby Girl B., supra,

21
at p. 51) encompassed the right to receive the report prior to the hearing, we cannot say

that all reasonable social workers would have understood that failing to provide the report

earlier violated this right.

Accordingly, we conclude that Harmelink is entitled to qualified immunity with

respect to Marshall's section 1983 claims against her insofar as those claims are premised

on Harmelink's failure to provide Marshall with a copy of the July 20 addendum report

prior to the July 20 hearing.

3. The social workers are entitled to qualified immunity as a matter of law on
Marshall's claims premised on judicial deception

a. Marshall's claims

Citing Chism v. Washington State (9th Cir. 2011) 661 F.3d 380, 388-389 (Chism),

Marshall contends that the social workers violated her due process right to be free from

governmental deception in the presentation of evidence during judicial proceedings.

Marshall argues that the social workers violated this right by making deliberately false

statements and failing to present material exculpatory evidence to the trial court in

connection with the request to terminate J.J.'s placement with Marshall. Under Chism, in

order to demonstrate a violation of her due process right to be free from judicial

deception Marshall is required to make " 'a substantial showing of [the social workers']

deliberate falsehood or reckless disregard for the truth and . . . establish that, but for the

dishonesty, the [termination of J.J.'s placement with her] would not have occurred.'

[Citation.]" (Chism, supra, at p. 386.)

22
 b. Marshall had a clearly established constitutional right not to have
J.J.'s placement terminated based on a social worker's statement
that was either deliberately false or made with reckless disregard for
its truth

The social workers are entitled to qualified immunity unless they violated a

"clearly established" constitutional right. (Carroll, supra, 135 S.Ct. at p. 350.) Marshall

contends that she had a clearly established constitutional right not to have J.J.'s placement

terminated based on a social worker's statement that was either deliberately false or made

with reckless disregard for its truth. We agree.

In Greene v. Camreta (9th Cir. 2009) 588 F.3d 1011, 1034-1035 (Greene),

vacated in part on other grounds by Camreta v. Greene (2011) ___ U.S. ___ [131 S.Ct.

2020] and vacated in part on other grounds by Greene v. Camreta (9th Cir. 2011) 661

F.3d 1201, the Ninth Circuit concluded that, as of March 2003, a parent had 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. (Greene,

supra, at p. 1035; see id. at p. 1018.) The Greene court reasoned:

"[T]he right to be free from deception in the presentation of evidence
during a protective custody proceeding was clearly established at the
time Camreta [the child protective services worker] filed his
affidavit with the Juvenile Court. In Devereaux v. Perez, 218 F.3d
1045 (9th Cir. 2000) [reh'g en banc granted by 235 F.3d 1206 and
reh'g en banc (2001) 263 F.3d 1070], for example, we held in the
context of a child abuse proceeding that 'the constitutional right to be
free from the knowing presentation of false or perjured evidence' is
clearly established. Id. at 1055–56. Even earlier, we stated
emphatically that 'if an officer submitted an affidavit that contained
statements he knew to be false or would have known were false had
he not recklessly disregarded the truth, . . . he cannot be said to have
acted in an objectively reasonable manner, and the shield of
qualified immunity is lost.' Hervey v. Estes, 65 F.3d 784, 788 (9th

23
 Cir. 1995) (internal quotations and citation omitted); see also Butler
[v. Elle (9th Cir. 2002) 281 F.3d 1014, 1024]; Whitaker [v. Garcetti
(9th Cir. 2007) 486 F.3d 572, 582] (concluding that 'the contours of
the Fourth Amendment right against judicial deception' were clearly
established by 1996). See also Snell v. Tunnell, 920 F.2d 673 (10th
Cir. 1990) (holding social workers who deliberately fabricated
evidence of child sexual abuse to secure a removal order not entitled
to qualified immunity)." (Greene, supra, at pp. 1034-1035.)

We agree with Greene, and believe that its reasoning applies equally to statements

made to a court by a social worker seeking the removal of a dependent child from a

caregiver's custody.16 (See Devereaux v. Abbey (9th Cir. 2001) 263 F.3d 1070, 1075 (en

banc) (Devereaux) [" 'Precedent directly on point is not necessary to demonstrate that a

right is clearly established. Rather, if the unlawfulness is apparent in light of preexisting

law, then the standard is met. In addition, even if there is no closely analogous case law,

a right can be clearly established on the basis of common sense.' "].) In light of long-

standing criminal prohibitions on making deliberately false statements under oath,17 no

social worker could reasonably believe that she was acting lawfully in making

deliberately false statements to the juvenile court in connection with the removal of a

dependent child from a caregiver.18 Since qualified immunity protects officials " 'who

16 "[A] foster parent has at least a 'limited constitutional "liberty" [interest]' in
maintaining her relationship with the foster child." (In re Jerry P. (2002) 95 Cal.App.4th
793, 815.)

17 Marshall notes that California has criminalized perjury since 1872. (See Pen.
Code, § 118.)

18 The County's cursory attempt to distinguish Greene on the ground that the
decision applies only to "protective custody warrants," is unpersuasive, since the object
24
act in ways they reasonably believe to be lawful' " (Garcia v. County of Merced (9th Cir.

2011) 639 F.3d 1206, 1208), we think that it is "virtually self-evident" (Devereaux,

supra, 263 F.3d at p. 1075) that qualified immunity does not apply to such acts. (See

Walker v. City of New York (E.D.N.Y. 2014) 63 F.Supp.3d 301, 312 ["It is axiomatic that

a caseworker seeking the protection of qualified immunity cannot have utilized perjury

and intentional fabrications during her investigation and in presenting a case to the

Family Court"].)

Citing Costanich v. Dep't of Soc. and Health Services (9th Cir. 2010) 627 F.3d

1101, 1114 (Costanich), the County maintains that Marshall's "right not to have social

workers present fabricated evidence against her in a civil juvenile dependency proceeding

was not clearly established until 2010." We disagree.

To begin with, the County's argument that "Costanich is binding precedent on this

court" is incorrect. (See, e.g., Raven v. Deukmejian (1990) 52 Cal.3d 336, 352

["Decisions of the lower federal courts interpreting federal law, though persuasive, are

not binding on state courts"]; McLaughlin v. Walnut Properties, Inc. (2004) 119

Cal.App.4th 293, 297 ["Since we are construing a federal statute, we must apply and

interpret federal law. Decisions of the United States Supreme Court are binding. Lower

federal court decisions, including those of the Ninth Circuit Court of Appeal, are not"].)

In making this argument, the County also misapplies precedent holding that federal

district courts must follow the decisions of the federal circuit courts of appeal (citing

of the social workers' statements in this case was the removal of J.J. from Marshall's
physical custody.
25
Hart v. Massanari (9th Cir. 2001) 266 F.3d 1155, 1169 (Hart)). This court is not, as the

County asserts, an "inferior court" to the Ninth Circuit, as the Hart court itself

recognized. (Ibid. [distinguishing between "inferior courts" in the federal system and

"state courts"].)

In any event, Costanich supports our conclusion. In Costanich, the Ninth Circuit

considered, whether, as of 2001, an individual had a clearly established right not to be

subjected to deliberately falsified information in a civil child abuse proceeding.

(Costanich, supra, 627 F.3d at p. 1114-1115.) The Costanich court noted that in 2001 in

Devereaux, supra, 263 F.3d 1070, the Ninth Circuit held " 'that there is a clearly

established constitutional due process right not to be subjected to criminal charges on the

basis of false evidence that was deliberately fabricated by the government.' " (Costanich,

supra, at p. 1114, quoting Devereaux, supra, at 1074-1075.) The Costanich court

concluded that the logic of Devereaux applies equally to civil child abuse proceedings,

stating, "Although Devereaux does not specifically address civil child abuse proceedings,

the right not to be accused based upon deliberately fabricated evidence is sufficiently

obvious, and Devereaux is sufficiently analogous to the facts here, that government

officials are on notice that deliberately falsifying information during civil investigations

which result in the deprivation of protected liberty or property interests may subject them

to [section] 1983 liability." (Costanich, supra, at p. 1115.)

We acknowledge that the Costanich court did state, "[G]iven the distinctions

between criminal prosecutions [at issue in Devereaux] and civil foster care proceedings

we cannot say that this right was clearly established as of 2001, when the conduct at issue

26
in this case occurred." (Costanich, supra, 627 F.3d at p. 1115, italics added.)19

However, even assuming we were to follow Costanich's reasoning that, as of 2001, an

individual did not have a clearly established constitutional right not to be subjected to

deliberately falsified evidence in connection with a civil child abuse investigation,20 the

acts that are alleged to have occurred in this case took place in 2006—five years after the

Ninth Circuit's en banc decision in Devereaux and three years after the alleged acts at

issue in Greene. Thus, Costanich does not support the County's contention that, as of

2006, Marshall did not clearly have such a constitutional right.

We are also aware that the Costanich court stated, "[G]oing forward, reasonable

government officials are on notice that deliberately falsifying evidence in a child abuse

investigation and including false evidentiary statements in a supporting declaration

violates constitutional rights where it results in the deprivation of liberty or property

interests, be it in a criminal or civil proceeding." (Costanich, supra, 627 F.3d at p. 1115.)

However, this language cannot reasonably be read as a holding by the Costanich court

that for acts occurring after 2001, no clearly established right existed, since this was not

the question before the Costanich court.21 Rather, we read the Costanich court's "going

19 The Costanich court did not cite Greene. At the time Costanich was decided,
Greene was pending before the United States Supreme Court. (See Camreta v. Greene
(2010) 562 U.S. 960 and Alford v. Greene (2010) 562 U.S. 960. )

20 We emphasize that we express no opinion on the correctness of this aspect of
Costanich court's reasoning.

21 As the County recognizes, qualified immunity applies unless a government official
violated a right that "was 'clearly established at the time of the challenged conduct.' "
27
forward" language (ibid.), as merely establishing that, for acts occurring after the

publication of Costanich, government officials are indisputably on notice of the existence

of a clear constitutional right to be free from judicial deception in civil child abuse

proceedings affecting the custody of a child.

Accordingly, we conclude that as of the summer of 2006, Marshall had a clearly

established constitutional right not to have J.J.'s placement terminated based on a social

worker's statement that was either deliberately false or made with reckless disregard for

its truth.

c. The social workers are entitled to qualified immunity because there
is no evidence from which a reasonable jury could find that J.J.'s
placement with Marshall was terminated based on statements that
were either deliberately false or made with reckless disregard for
their truth

Marshall's judicial deception claim is based on statements made by the social

workers in the June 28 ex parte application and the July 20 addendum report. We

consider Marshall's claims concerning each document, in turn.

Marshall contends that the June 28 ex parte application contained several

statements that Thompson and Johanesen knew or should have known were false. First,

Marshall argues that the statement that she had not complied with requests for an

adoptive homestudy was false. Edwards stated in a declaration that, in March 2006, she

gave Marshall several documents that had to be completed as part of the adoption

(Quoting Ashcroft v. al-Kidd (2011) ___U.S. ___ [131 S.Ct. 2074, 2080].) Thus, the
Costanich court's qualified immunity holding was necessarily limited to a determination
of whether a right was clearly established at the time that the challenged conduct at issue
in that case occurred (i.e. 2001). (Costanich, supra, 627 F.3d at p. 1115.)
28
homestudy process, including an Application to Adopt form. Edwards also stated that

Marshall failed to return the forms. Marshall points to no evidence demonstrating that

she in fact returned the Application to Adopt, or that Edwards's statement was false.

Thus, a reasonable juror could not find that Thompson and Johanesen deliberately

fabricated the statement, "Marshall has not complied with requests for the adoptive

homestudy."

In a related argument, Marshall contends that the statement in the ex parte

application that her "homestudy has been closed as unapproved," was false. In support of

this contention, Marshall cites evidence that, at best, suggests that the Agency may have

not have formally closed her homestudy application until shortly after the filing of the

June 28 ex parte application. This evidence does not establish that the statement was

materially false, since the gist of the statement was that the Agency had decided not to

approve Marshall's home for J.J.'s adoption. Thus, a reasonable juror could not find

Thompson and Johanesen liable for this statement.

Marshall further argues that the statement, "Marshall has been given the proper

[statutory] notice," was untrue. We reject this contention for the reasons stated in part

II.B.2.c, ante. Marshall also contends that the statement, "Marshall has made no attempt

to contest the children's removal," was untrue as to J.J.22 While Marshall presented

evidence that she mailed the Agency her objection to the Agency's proposal to remove

J.J. on June 26, there is no evidence that either Thompson or Johanesen was aware of this

22 Marshall does not dispute that the statement was true as to the other children
mentioned in the ex parte application, C.B. and K.B.
29
objection on June 26 when they signed the application or on June 28 when they filed the

ex parte application. Thus, there is no evidence on which a reasonable jury could find

that Thompson or Johanesen deliberately fabricated the statement that Marshall had not

attempted to contest J.J.'s removal.

Marshall also argues that because Johanesen was not J.J.'s social worker, she could

not have had personal knowledge of the events described in the ex parte application, and

thus, she committed perjury in submitting it to the court. We reject this argument

because the vast majority of the statements in the ex parte application did not pertain to

J.J., but rather, referred to the suitability of Marshall's home in general, as well as to

issues related to K.B. and C.B. With respect to the one statement that arguably related

only to J.J., i.e., the statement that Marshall had not complied with requests necessary to

complete the adoptive homestudy, Marshall has failed to demonstrate that a reasonable

juror could find the statement to be false. Thus, a reasonable jury could not find that

Johanesen committed perjury in making this statement.23

Marshall also argues that Harmelink and Thompson deliberately fabricated several

statements in their July 20 addendum report. To begin with, for the reasons stated above,

we reject Marshall's arguments with respect to statements in the report to the effect that

she not had complied with requests for the adoptive homestudy, and that the homestudy

23 Citing Liston v. County of Riverside (9th Cir. 1997) 120 F.3d 965, Marshall also
contends that Thompson and Johanesen "suppressed known exculpatory evidence." We
reject this argument because none of the statements that the social workers' omitted of
which Marshall complains would have provided a basis for a reasonable jury to find that
the social workers "intentionally or recklessly omitted facts required to prevent
technically true statements in the [application] from being misleading.'" (Id. at p. 973.)
30
had been closed due to noncompliance. We also reject Marshall's contention that a

reasonable jury could find that Harmelink and Thompson deliberately fabricated the

statement that Marshall "has not made any significant step to initiate the process in

becoming a prospective adoptive parent to J.J.," in light of undisputed evidence,

discussed above, that Marshall had not returned a completed Application to Adopt form

for J.J. We also reject Marshall's contention that Harmelink and Thompson deliberately

fabricated a statement concerning when Marshall had begun to work on her adoptive

homestudy, since, when read in context, the statement clearly pertained to the adoptive

homestudy for C.B. and K.B., and Marshall does not contend that the statement was

inaccurate as to these children.

Marshall also contends that Thompson and Harmelink deliberately falsified the

following statement, "Marshall's boyfriend lives in the home with her and the children,

yet she failed to disclose this information to the Agency." Marshall did state in a

declaration that she had previously informed Harmelink that her boyfriend lived in her

home. However, Marshall's boyfriend's residence was not among the factors that

Thompson and Harmelink listed as a basis for their recommendation that J.J. be removed

from the home. Accordingly, we conclude that a reasonable juror could not find that but

for the alleged dishonesty with respect to Marshall's boyfriend's residence, the

termination of J.J.'s placement with Marshall would not have occurred. The record thus

does not contain a triable issue of material fact with respect to Marshall's claim that

Thompson and Harmelink's July 20 addendum report violated Marshall's constitutional

31
right not to have J.J.'s placement terminated based on fabricated evidence. (See Chism,

661 F.3d at p. 386 [outlining elements of a judicial deception claim].)24

Accordingly, we conclude that the social workers are entitled to qualified

immunity as a matter of law with respect to Marshall's section 1983 claims against them

insofar as those claims are premised on their alleged violation of Marshall's right to be

free from deception in the presentation of evidence by government agents during judicial

proceedings.25

4. The trial court properly granted judgment as a matter of law for the County
on Marshall's section 1983 claim

Marshall claims that the trial court erred in granting judgment as a matter of law

for the County on Marshall's claim section 1983 claim.

a. Governing law

A municipality can be sued under section 1983 for "constitutional deprivations

visited pursuant to governmental 'custom.' " (Monell, supra, 436 U.S. at pp. 690-691.)

However, "Congress did not intend municipalities to be held liable unless action pursuant

24 Marshall also contends that the report contains a number of statements that were
"presented out-of-context, and did not state the whole truth." We have carefully reviewed
the statements and conclude that, no reasonable juror could find that Thompson and
Harmelink made deliberately misleading statements to the court in the July 20 addendum
report.

25 In light of our conclusion that the social workers are entitled to qualified immunity
with respect to all of Marshall's claims against them, we need not consider respondents'
argument that the social workers are also entitled to absolute immunity for their actions.
(See Nader v. Blackwell (6th Cir. 2008) 545 F.3d 459,478 (lead opn. of Boggs, C.J.)
["Given our holding that [defendant] has qualified immunity from suit, it is unnecessary
for us to decide whether he also enjoys absolute immunity"].)
32
to official municipal policy of some nature caused a constitutional tort. In particular,

. . . a municipality cannot be held liable solely because it employs a tortfeasor—or, in

other words, a municipality cannot be held liable under § 1983 on a respondeat superior

theory." (Id. at p. 691.)

Thus, in order to establish her section 1983 claim against the County, Marshall

would be required to prove that a County employee committed a constitutional violation

pursuant to a formal governmental policy or a long-standing practice or custom which

constitutes the standard operating procedure of the County. (See Trevino v. Gates (9th

Cir. 1996) 99 F.3d 911, 918.) In order to make such a showing, Marshall would have to

"demonstrate that, through its deliberate conduct, the municipality was the 'moving force'

behind the injury alleged," and establish a "direct causal link between the municipal

action and the deprivation of federal rights." (Bryan County Commissioners v.

Brown (1997) 520 U.S. 397, 404 (Bryan County).) Courts are required to "adhere to

rigorous requirements of culpability and causation," lest "municipal liability collapse[]

into respondeat superior liability." (Id. at p. 415.) This is because, as the United States

Supreme Court has "repeatedly reaffirmed," in enacting section 1983, "Congress did not

intend municipalities to be held liable unless deliberate action attributable to the

municipality directly caused a deprivation of federal rights." (Bryan County, supra, at p.

415.)

33
 b. Application

Marshall's section 1983 claim against the County is based on the social workers'

alleged violations of her constitutional rights discussed in part II.B.2., and part III.B.3.,

ante. With one exception, addressed below, we concluded that no reasonable juror could

find that the social workers violated Marshall's constitutional rights. Thus, Marshall

cannot prevail on her section 1983 claim against the County insofar as that claim is

premised on either Thompson and Johanesen's failure to provide her with proper notice of

the June 28 ex parte hearing or on the social workers' alleged judicial deception. (See,

e.g., Jackson v. City of Bremerton (9th Cir. 2001) 268 F.3d 646, 653 ["Neither a

municipality nor a supervisor . . . can be held liable under § 1983 where no injury or

constitutional violation has occurred"].)

In accordance with this court's opinion in Rita M. I, supra, D049099, we assumed

in part II.B.2.d., ante, and we similarly assume here, that Harmelink's failure to provide

Marshall with the July 20 addendum report until the commencement of the July 20

hearing violated Marshall's right to due process. Accordingly, we must consider whether

a County custom or practice was the "moving force" behind Harmelink's assumed

violation of Marshall's constitutional rights. (Bryan County, supra, 520 U.S. at p. 415.)

At the outset, we acknowledge that Johanesen stated in a deposition that it was not

the Agency's practice "to give ex partes, or addendums, or court reports to the caregivers"

unless the caregiver was either a de facto parent or a "prospective adoptive parent that's

34
been given that status by the court."26 However, as the County correctly argues,

Marshall "must show the [County's] policies caused her injuries, not just that the workers

caused her injuries and they were following policies." (Italics added.) For the reasons

discussed below, even assuming that a reasonable jury could find that Johanesen's

testimony established a County custom, no reasonable jury could find that, through this

custom, the County engaged in "deliberate conduct" that was the " 'moving force' behind"

Marshall's injury. (Bryan County, supra, 520 U.S. at p. 415.)

Importantly, Marshall has presented no argument that would indicate that the

County's custom is, in and of itself, unconstitutional. Further, as the Rita M. I , supra,

D049099, court outlined, it was the particular circumstances of Marshall's case that gave

rise to the due process concerns in this case. Specifically, the Rita M. I court stated, "This

case concerns us" (italics added), observing, "For more than two years, from November

2003, when J.J. was placed in Rita's home, until May 2006, the Agency social workers

reported J.J. was thriving in Rita's home," and that the social workers had suddenly

changed course in June of 2006 and decided to seek the removal of J.J. It was these

circumstances, of "this case" (Rita M. I, supra, D049099, italics added), and not the

County's practice of not providing addendum reports to the caregivers of dependent

children, that gave rise to Marshall's assumed constitutional injury. The Rita M. I court

outlined those circumstances as follows:

26 Marshall was not declared a prospective adoptive parent by the trial court until a
proceeding that occurred after the filing of this court's opinion in Rita M. I on October 26,
2006. (See Rita M. II, supra, D051025.)
35
 "The circumstances of the case and the hearing lead us to conclude
[Marshall] was not treated fairly. Although at the hearing [Marshall]
was given the opportunity to present her objections, she was not
presented with the social worker's addendum report until just before
the hearing began. Indeed, the court needed to call a brief recess so
[Marshall] could read the report. During the hearing, in response to
[Marshall]'s question, the social worker acknowledged [Marshall]
may not have been notified that she would not be approved to adopt
the children in her home. [Marshall] expressed her confusion during
the hearing, stating she could not understand why she would not be
approved. This confusion is understandable in light of the fact that
for the more than two years while [Marshall] was caring for J.J. in
her home, the Agency continued to report that he was thriving and
[Marshall] was providing loving care. The Agency acknowledges
this and states in their brief it is unknown why the social workers
overseeing [Marshall]'s foster care of J.J. were not aware of the CPS
referrals against [Marshall]. In our view, it is inexcusable that the
social workers who were monitoring a child's welfare in foster care
did not know of numerous referrals against the foster parent. It is
also disturbing that [Marshall] may not have been notified that she
would not be approved to adopt and was not provided the social
worker's report until the beginning of the hearing." (Rita M. I ,
supra, D049099.)

We agree with the sentiment expressed in Rita M. I, namely, that it was the

particular circumstances of this case, and not a County policy of not providing addendum

reports to the caregivers unless the caregiver was either a de facto parent or a

"prospective adoptive parent that's been given that status by the court," that gave rise to

the due process violation we have assumed here. In the absence of evidence that the

County's custom was the "moving force" (Bryan County, supra, 520 U.S. at p. 415)

behind Harmelink's assumed violation of Marshall's constitutional rights, the County

cannot fairly be said to be the wrongdoer, and thus subject to section 1983 liability. (See

Collins v. City of Harker Heights (1992) 503 U.S. 115, 122 ["The city is not vicariously

36
liable under § 1983 for the constitutional torts of its agents: It is only liable when it can

be fairly said that the city itself is the wrongdoer"].)27

Accordingly, we conclude that the trial court properly granted judgment as a

matter of law for the County on Marshall's section 1983 claim.

IV.

DISPOSITION

The judgment is affirmed. Marshall is to bear costs on appeal.

AARON, J.

WE CONCUR:

NARES, Acting P. J.

McINTYRE, J.

27 Marshall also contends that respondents proffered the declarations of several
witnesses that were purportedly in conflict with the witnesses' deposition testimonies.
For example, Marshall contends that "Johanesen, in her declaration, states that she
'prepared' the June 28, 2006 ex parte application, but at deposition Johanesen admits that
Thompson drafted the ex parte application, and Johanesen only supplied her signature."
Marshall fails to present any argument concerning how these purported inconsistencies
were material to the trial court's summary judgment rulings or why such inconsistencies
require reversal on appeal. Accordingly, we conclude that Marshall is not entitled to
reversal of the judgment based on these purported inconsistencies.
Marshall also claims that the trial court abused its discretion in overruling various
evidentiary objections. However, she fails to present any argument in her brief in support
of this contention, and instead merely cites to portions of the clerk's transcript. It is well
established that an appellate court need not consider such improperly incorporated
arguments. (See, e.g. Parker v. Wolters Kluwer United States, Inc. (2007) 149
Cal.App.4th 285, 291.) Accordingly, Marshall's contention in this regard is forfeited.
37