FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
A.C., a minor; A.E.1, a minor; No. 19-55895
A.E.2, a minor, by and through
Samuel H. Park, their Guardian ad D.C. No.
litem, 3:18-cv-02227-
Plaintiffs-Appellants, AJB-AGS
v.
OPINION
ERICA R. CORTEZ, an individual;
KATE DWYRE JONES, an individual;
COUNTY OF SAN DIEGO, a public
entity; DOES, 1 through 30 inclusive,
Defendants-Appellees.
Appeal from the United States District Court
For the Southern District of California
Anthony K. Battaglia, District Judge, Presiding
Submitted October 5, 2021 *
Pasadena, California
Filed May 13, 2022
*
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2 A.C. V. CORTEZ
Before: Susan P. Graber and Morgan Christen, Circuit
Judges, and Richard Seeborg, ** District Judge.
Opinion by Judge Seeborg
SUMMARY ***
Civil Rights
The panel affirmed the district court’s dismissal of an
action brought pursuant to 42 U.S.C. § 1983 alleging that
attorneys for the County of San Diego, in defending the
County against plaintiffs’ earlier lawsuit, reviewed
plaintiffs’ juvenile case files without first obtaining a court
order, in violation of plaintiffs’ privacy rights.
In a previously issued memorandum disposition, the
panel held that the individual defendants were entitled to
qualified immunity for the reasons stated in Nunes v. Arata,
Swingle, Van Egmond & Goodwin (PLC), 983 F.3d 1108,
1113–14 (9th Cir. 2020) (per curiam). The panel’s previous
disposition did not address plaintiffs’ claim brought pursuant
to Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978), and
after plaintiffs moved for reconsideration, rehearing, and
rehearing en banc, the panel invited supplemental briefing
on the Monell claim.
**
The Honorable Richard Seeborg, Chief United States District
Judge for the Northern District of California, sitting by designation.
***
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
A.C. V. CORTEZ 3
The panel held that, contrary to plaintiffs’ argument,
Gonzalez v. Spencer, 336 F.3d 832 (9th Cir. 2003) (per
curiam), abrogated on other grounds by Filarsky v. Delia,
566 U.S. 377 (2012) does not stand for the proposition that
a right to privacy necessarily attaches to the type of records
at issue here. Thus, Gonzalez did not recognize a per se
constitutional right in juvenile records that is always violated
by third-party access. Further, even if plaintiffs were
entitled to informational privacy, the balancing test
recognized in Seaton v. Mayberg, 610 F.3d 530, 539 (9th
Cir. 2010), showed the County’s interest in defending this
litigation outweighed plaintiffs’ asserted privacy interest.
Even assuming that the social workers’ records comprised
sensitive medical and psychological records, there was no
constitutional violation because the County’s need to access
the records was high. Plaintiffs initiated that need, and the
professional obligations that lawyers owe their clients
minimized the risk of misuse, harassment, or
embarrassment. Thus, the district court properly dismissed
plaintiffs’ Monell claim.
COUNSEL
Shawn A. McMillan, Stephen D. Daner, and Adrian M.
Paris, Law Offices of Shawn A. McMillan A.P.C., San
Diego, California, for Plaintiffs-Appellants.
Thomas E. Montgomery, County Counsel; Jeffrey
Michalowski and John P. Cooley, Senior Deputies; Office of
County Counsel, San Diego, California; for Defendants-
Appellees.
4 A.C. V. CORTEZ
OPINION
SEEBORG, District Judge:
Plaintiffs in this action are minors who resided in San
Diego County. In 2017, Plaintiffs sued the County and
County social workers for allegedly violating their Fourth
Amendment rights by interviewing them without a court
order or parental consent during the course of a child-abuse
investigation. During that investigation, the County created
and maintained files related to the alleged child abuse.
Attorneys defending the County reviewed the child-abuse
investigation file without first obtaining a court order.
Plaintiffs then brought this action, alleging that the attorneys
who accessed the file violated their right to privacy.
Plaintiffs’ claim relies heavily on Gonzalez v. Spencer,
336 F.3d 832 (9th Cir. 2003) (per curiam), abrogated on
other grounds by Filarsky v. Delia, 566 U.S. 377 (2012). We
conclude that Gonzalez does not stand for the proposition
that a right to privacy necessarily attaches to the type of
records at issue here. Further, even if we assume that
Plaintiffs were entitled to informational privacy, the
balancing test recognized in Seaton v. Mayberg, 610 F.3d
530, 539 (9th Cir. 2010), shows the County’s interest in
defending this litigation outweighed Plaintiffs’ asserted
privacy interest. Accordingly, we affirm. 1
I. BACKGROUND
Juvenile case files include “[d]ocuments relating to a
child concerning whom a petition has been filed in juvenile
1
This opinion supplements a memorandum disposition, A.C. v.
Cortez, No. 19-55895, 2021 WL 4705511 (9th Cir. Oct. 8, 2021)
(unpublished), in which we affirmed the dismissal of the claims against
the individual Defendants. All claims in this action are now decided.
A.C. V. CORTEZ 5
court that are maintained in the office files of probation
officers, social workers of child welfare services programs,
and CASA [Court Appointed Special Advocates]
volunteers.” Cal. R. Ct. 5.552(a)(4). The types of documents
in a case file generally contain “reports to the court by
probation officers, social workers . . . , and CASA
volunteers” and “[t]ranscripts, records, or reports relating to
matters prepared or released by the . . . child welfare services
program.” Id. 5.552(a)(3), (5). In California, a court order is
required to access juvenile case files, except for a list of
statutorily excepted categories of people, such as the subject
minor and attorneys litigating a juvenile or criminal
proceeding involving the minor. California Welfare &
Institutions Code § 827.
In 2017, Plaintiffs sued San Diego County, claiming that
County social workers violated their Fourth Amendment
rights by interviewing them without a court order or parental
consent. Williams v. County of San Diego, S.D. Cal. Case
No. 17-cv-0815 MMA-JLB. Attorneys for the Office of
County Counsel defended the lawsuit. As part of that
defense, Erica Cortez and Kate Jones accessed the County’s
juvenile case files concerning Plaintiffs.
Plaintiffs then brought this separate lawsuit in 2018,
arguing that the lawyers’ inspection of the juvenile case files
violated their privacy rights. They sued Cortez, Jones, and
the County itself. The Complaint contains two counts: a
42 U.S.C. § 1983 claim against the individual Defendants
and a Monell claim, premised on the allegations that the
County had a practice of allowing attorneys to access and
use juvenile files to defend against lawsuits. Monell v. Dep’t
of Soc. Servs., 436 U.S. 658 (1978). Defendants moved to
dismiss the complaint under Federal Rule of Civil Procedure
12(b)(6). The district court granted the motion, despite
6 A.C. V. CORTEZ
finding that the County’s policy allowed its attorneys to
access juvenile case files without a court order, potentially
contrary to California law. A.C. v. Cortez et al., 398 F. Supp.
3d 748 (S.D. Cal. 2019).
The district court applied the balancing test articulated in
Seaton, 610 F.3d at 538 n.47, 539, which essentially weighs
the potential for harm to Plaintiffs’ privacy interest against
Defendants’ need for access. The court concluded that the
balancing test favored Defendants in light of the need to
access the files to defend the County in the 2017 litigation.
A.C., 398 F. Supp. 3d at 753. The district court also ruled
that the individual Defendants are entitled to qualified
immunity because Plaintiffs failed to show “that there was a
constitutional deprivation” and, even if there were, “it was
not clearly established at the time County Counsel accessed
the files that they were violating [Plaintiffs’] constitutional
rights.” Id. Plaintiffs timely appealed to us.
While this appeal was pending, another panel of this
court held that qualified immunity applied to an alleged
privacy violation against individual Defendants in a nearly
identical case, citing the trial court’s decision in this case.
Nunes v. Arata, Swingle, Van Egmond & Goodwin (PLC),
983 F.3d 1108, 1113–14 (9th Cir. 2020) (per curiam). We
then issued a memorandum disposition in this appeal,
holding that the individual Defendants sued here were
entitled to qualified immunity for the reasons stated in
Nunes. A.C., 2021 WL 4705511 at *1. Nunes, however, did
not address whether there exists a constitutional right in the
first instance; it decided only the issue of qualified
immunity, which cannot apply against the County.
Leatherman v. Tarrant Cnty. Narcotics Intel. &
Coordination Unit, 507 U.S. 163, 166–167 (1993).
A.C. V. CORTEZ 7
Our previous disposition did not address the Monell
claim. After Plaintiffs moved for reconsideration, rehearing,
and rehearing en banc, we invited supplemental briefing. We
have jurisdiction under 28 U.S.C. § 1291, and we now affirm
the district court’s order dismissing Plaintiff’s complaint.
II. STANDARD OF REVIEW
We review findings of fact for clear error and legal
conclusions de novo, except for the district court’s denial of
leave to amend, which we review for abuse of discretion.
Pannebecker v. Liberty Life Assurance Co., 542 F.3d 1213,
1217 (9th Cir. 2008); Gompper v. VISX, Inc., 298 F.3d 893,
898 (9th Cir. 2002).
III. DISCUSSION
A. The Question to be Decided
Defendants insist that we should not reach the
constitutional question presented in this case. Defendants
argue that Plaintiffs waived any informational privacy
claims by not pursuing the theory below and not raising it in
their opening brief. Yet, Defendants raised informational
privacy to the district court, the district court’s opinion
reached the issue, and the parties have squarely addressed
informational privacy on appeal. We therefore take the
opportunity to clarify the confusion caused by Gonzalez.
B. Gonzalez Did Not Identify a Constitutional Right
Gonzalez did not recognize a per se constitutional right
in juvenile records that is always violated by third-party
access. The decision contains a limited discussion of the
constitutional question:
8 A.C. V. CORTEZ
If Spencer violated Gonzalez’s constitutional
rights, he is entitled to at least nominal
damages, even if Spencer could have
obtained the documents lawfully.
Because Spencer improperly obtained
access to Gonzalez’s juvenile court file, we
need not reach the question whether
Spencer’s use of Gonzalez’s file in
depositions also violated his constitutional
rights.
. . . Spencer is not entitled to qualified
immunity.
336 F.3d at 835 (citation omitted). Gonzalez has been
characterized as “opaque.” Nunes, 983 F.3d at 1114. Most of
the district courts to consider the issue have concluded that
Gonzalez did not recognize a constitutional right to privacy
in juvenile records per se. E.g., Rigsby v. County of Los
Angeles, No. CV-11-02766, 2011 WL 13143544, at *3 (C.D.
Cal. Aug. 2, 2011), aff’d, 531 F. App’x 811 (9th Cir. 2013);
see also Nunes, 983 F.3d at 1113 (discussing cases).
Gonzalez mentioned neither the Constitution nor any
federal law in the relevant part of the opinion. As we noted
in Nunes, “[s]uch an opinion, which leaves fundamental
questions unanswered about the origin, nature, and scope of
the right at issue, cannot place the constitutional issue
‘beyond debate.’” 983 F.3d at 1114. We conclude that
Gonzalez cannot be viewed as identifying a constitutional
right for qualified immunity purposes or otherwise.
The quoted passage in Gonzalez at most assumed that
there was some existing constitutional right to privacy in
A.C. V. CORTEZ 9
juvenile records. See 336 F.3d at 839 (Fletcher, J.,
dissenting) (noting that the issue was only whether Gonzalez
had a “federal constitutional right of privacy based on a
settled expectation arising out of state law”). We need not
try to excavate further the intent behind the “opaque”
passage in Gonzalez. It is sufficient to resolve that Plaintiffs
cannot rely on Gonzalez for the existence of a per se
constitutional right. Because we hold that Gonzalez did not
identify a specific constitutional right in the first place, en
banc review is not necessary to ensure the uniformity of our
decisions, as Plaintiffs request. Fed. R. App. P. 35.
C. Applying Informational Privacy to Juvenile Records
“[F]ederal constitutional law recognizes a ‘right to
informational privacy’ stemming from ‘the individual
interest in avoiding disclosure of personal matters.’” Endy
v. County of Los Angeles, 975 F.3d 757, 768 (9th Cir. 2020)
(quoting In re Crawford, 194 F.3d 954, 958 (9th Cir. 1999)).
That said, the right “is not absolute; rather, it is a conditional
right which may be infringed upon a showing of proper
governmental interest.” Id. (internal quotation marks
omitted). Our balancing test to determine whether the
government’s right to infringe outweighs the individual’s
privacy interest considers: “(1) the type of information
requested, (2) the potential for harm in any subsequent non-
consensual disclosure, (3) the adequacy of safeguards to
prevent unauthorized disclosure, (4) the degree of need for
access, and (5) whether there is an express statutory
mandate, articulated public policy, or other recognizable
public interest militating toward access.” Seaton, 610 F.3d
at 539 (quoting Tucson Woman’s Clinic v. Eden, 379 F.3d
531, 551 (9th Cir. 2004)) (internal quotation marks omitted).
California’s definition of juvenile records is broad,
including “records, or reports relating to” those prepared by
10 A.C. V. CORTEZ
child welfare workers, the contents of which vary
dramatically. Cal. R. Ct. 5.552(a). In its early stages, a social
worker’s child-abuse file might contain only relatively
innocuous biographical data and academic records.
Eventually, however, it would not be unusual for such a file
to contain intimate details that families would not share with
strangers, including medical diagnoses, reports of abuse,
substance-abuse treatment records, and the like. Thus,
although courts may assume that juvenile records contain
personal matters, an individualized determination will be
required at the threshold stage to determine whether a
particular file contains such information. We apply the
standard informational privacy balancing test to minors. See,
e.g., Planned Parenthood of S. Ariz. v. Lawall, 307 F.3d 783,
785, 789–90 (9th Cir. 2002).
D. No Informational Privacy Violation Here
The district court applied the five-factor balancing test
articulated in Seaton, 610 F.3d at 593, and found no violation
of Plaintiffs’ right to informational privacy. The court’s
conclusion is sound.
As to the first factor, the type of information requested,
Plaintiffs contend that the files contained their medical,
psychological, and psychiatric records, and we presume that
the files contain at least some highly sensitive information.
The second factor, the potential for harm, is unclear but
seems low, as it has been years since the information was
accessed, and it has not been used in the underlying lawsuit
(about social workers interviewing Plaintiffs without
consent) or in any other proceeding. The third factor,
safeguards against misuse, helps assuage any concerns about
harm because Plaintiffs allege only that the County’s
attorneys accessed the files. Attorneys have a duty to keep
their clients’ files confidential, and a “statutory or regulatory
A.C. V. CORTEZ 11
duty to avoid unwarranted disclosures generally allays
privacy concerns.” NASA v. Nelson, 562 U.S. 134, 155
(2011) (internal quotation marks omitted).
The next factor, the need for access, is the most crucial
in this case, because that need is high. The County’s
attorneys have a duty to represent their client, and they
concluded that adequate representation required their
reviewing the files. This situation is analogous to the concept
of litigation waiver in other areas of the law: where a
Plaintiff puts a particular subject at issue, such that lawyers
and courts will need to examine records to investigate the
claim, Plaintiffs’ privacy rights and expectations may be
diminished or extinguished. 2 See, e.g., Vinson v. Superior
Ct., 740 P.2d 404, 410–11 (Cal. 1987). We emphasize that
Plaintiffs’ 2017 suit pertained to how County employees
conducted themselves with respect to the juveniles, thus
giving rise to the attorneys’ need to access the juveniles’
files. Our decision should not be misunderstood as holding
that, whenever someone sues the County on any topic, its
attorneys necessarily may access the Plaintiff’s juvenile file.
The last factor, policies pertaining to access, is somewhat
unclear. Defendants argue that there is such a policy because
a state regulation provides that, when someone sues the
county, social services agencies shall give county attorneys
all files related to the Plaintiff. Cal. Dept. of Soc. Servs.
Manual of Policies & Procs. § 19-004.5. On the other hand,
California Welfare & Institutions Code § 827 requires a
court order to access juvenile files, and it seems that the
2
Indeed, this logic arguably could decide the case: Plaintiffs’ 2017
suit waived their privacy rights and expectations, at least with regard to
the lawyers for the entity that they sued.
12 A.C. V. CORTEZ
attorneys here do not fall under the “court personnel”
exception.
Ultimately, this state-law issue need not be decided
definitively because the need for access is sufficiently high
that it outweighs the lesser possibility of harm. Even
assuming that the social workers’ records comprised
sensitive medical and psychological records, there was no
constitutional violation because the County’s need to access
the records was high. Plaintiffs initiated that need, and the
professional obligations that lawyers owe their clients
minimize the risk of misuse, harassment, or embarrassment.
Thus, the district court properly dismissed Plaintiffs’ Monell
claim. Because no amendment could save the complaint, the
district court correctly denied leave to amend. Gompper,
298 F.3d at 898.
AFFIRMED.