211 Cal.App.4th 1455, B231941, Arce v. County of Los Angeles

Docket Nº:B231941, B233214
Citation:211 Cal.App.4th 1455, __ Cal.Rptr.3d __
Opinion Judge:ZELON, J.
Party Name:JACQUELINE ARCE, et al. Plaintiffs and Appellants, v. CHILDRENS HOSPITAL LOS ANGELES, et al., Defendants and Respondents. JAQUELINE ARCE, et al. Plaintiffs and Appellants, v. COUNTY OF LOS ANGELES, et al., Defendants and Respondents.
Attorney:Law Offices of Shawn A. McMillan, Shawn A. McMillan and Stephen D. Daner for Plaintiffs and Appellants. Ryan, Datomi & Mosely, Kathryn S.M. Mosely and Dawn Cushman for Defendants and Respondents Childrens Hospital Los Angeles, Sandy Himmelrich, Elizabeth Wilson and Karen Kay Imagawa. Monroy, Aver...
Judge Panel:Perluss, P.J., and Woods, J., concurred.
Case Date:December 17, 2012
Court:California Court of Appeals

Page 1455

211 Cal.App.4th 1455

__ Cal.Rptr.3d __

JACQUELINE ARCE, et al. Plaintiffs and Appellants,


CHILDRENS HOSPITAL LOS ANGELES, et al., Defendants and Respondents.

JAQUELINE ARCE, et al. Plaintiffs and Appellants,


COUNTY OF LOS ANGELES, et al., Defendants and Respondents.

B231941, B233214

California Court of Appeals, Second District, Seventh Division

December 17, 2012

APPEAL from a judgment of the Superior Court of Los Angeles County No. BC420124. Kenneth R. Freeman, Judge.

Page 1456

[Copyrighted Material Omitted]

Page 1457

[Copyrighted Material Omitted]

Page 1458

[Copyrighted Material Omitted]

Page 1459

[Copyrighted Material Omitted]

Page 1460


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

Ryan, Datomi & Mosely, Kathryn S.M. Mosely and Dawn Cushman for Defendants and Respondents Childrens Hospital Los Angeles, Sandy Himmelrich, Elizabeth Wilson and Karen Kay Imagawa.

Monroy, Averbuck & Gysler, Clayton C. Averbuck and Jennifer E. Gysler for Defendants and Respondents County of Los Angeles, Rosario Fernandez, Karl Maruyama, Susan Gei, Patricia Ploehn, Laura Shotzbarger, Sydney Tucker, Lori Wikler, Eva Yomtobian, Robert Woolridge, Mendy Camarillo-Valle and Nancy Bryden.




Appellants Jacqueline Arce, Antonio L. and their children, A.L. and N.L., filed an action alleging that the County of Los Angeles, the Los Angeles County Department of Children and Family Services (DCFS) and Childrens Hospital Los Angeles (CHLA) violated their constitutional rights by detaining both children without judicial authorization or adequate cause. They also alleged that DCFS made knowingly false and malicious statements during dependency proceedings and that a CHLA social worker harassed the parents after the children were returned to their custody. The complaint asserted numerous state and federal claims, including violations of 42 United States Code section 1983 (section 1983). Each defendant filed a demurrer to the complaint.

The trial court sustained the demurrers without leave to amend, concluding that: (1) plaintiffs’ allegation that A.L. was diagnosed with “Shaken Baby Syndrome” demonstrated that exigent circumstances supported the temporary detention of both children; and (2) CHLA was immune from plaintiffs’ state law claims pursuant to Penal Code section 11172.

Page 1461

Plaintiffs appeal the judgment dismissing their section 1983 claims and various state law claims. We reverse the judgment and conclude that plaintiffs have adequately stated claims under section 1983, but not under state law.1


A. Summary of Plaintiffs’ Complaint

I. Summary of factual allegations in plaintiffs’ second amended complaint

In August of 2009, Jacqueline Arce (mother), Antonio L. (father) and their two sons, A.L. and N.L. (the children), filed a complaint alleging numerous federal and state claims against the County of Los Angeles (the County), DCFS, CHLA) and numerous individuals employed by each of those entities.

The second amended complaint, filed on April 14, 2010, 2 alleged that, on the morning of Tuesday, September 16, 2008, mother dropped off 11-month old A.L. at Camp Runnymede Daycare, which was owned and operated by Holly Downs. At approximately 10:00 a.m., mother called Downs to check on A.L. and was informed that he had just finished his breakfast and was about to lie down for a nap.

At approximately 3:00 p.m., Downs called mother and reported that A.L. had “‘fallen off the bed’” and was acting “‘weird.’” One minute later, Downs called mother again and said that paramedics had arrived and wanted to speak to her. The paramedics informed mother that A.L. was being airlifted to CHLA because he was “‘acting inappropriately’” and “‘needed proper treatment.’” Mother and father immediately traveled to CHLA.

When the parents arrived at the hospital, they were met by emergency room social worker Brett McGillivray, who told them that A.L. was undergoing an MRI. A team of doctors informed the parents that A.L. was suffering from seizures and had “bleeding in his brain.” The doctors also stated that A.L.’s symptoms could not have been caused by a fall from a bed.

Page 1462

At 5:10 p.m., the parents and McGillivray called Downs to discuss what had happened to A.L. During the call, Downs “changed her [original] story, ” stating that A.L. had never fallen off a bed. Downs claimed that she had heard A.L crying in his crib but that he had eventually stopped. When Downs went to check on A.L., she saw him “‘lying... limp like a noodle.’” Upon hearing these statements, McGillivray told the parents to end the call because he believed Downs was lying. After the call ended, McGillivray told the parents that Downs had previously informed paramedics that A.L. had fallen from a changing table.

McGillivray called the police to report suspected child abuse. At approximately 7:00 p.m., officers from the Los Angeles Police Department (LAPD) arrived at CHLA and requested that the parents fill out a criminal report. McGillivray informed the officers that, based on his experience as a social worker, he believed the parents were “acting appropriately for th[e] incident” and were not responsible for A.L.’s injuries. The police interviewed the parents and met with A.L.’s treating physician, who reported that although the child’s head trauma was consistent with a fall, more testing was required to identify the specific cause of the injury. Based on the information they had gathered, the officers suspected that Downs had abused A.L.

On the morning of September 17, 2008, A.L. underwent additional tests, including a second MRI, a skeletal exam and an eye exam. Later that day, an ophthalmologist informed the parents that the tests indicated A.L. had retinal hemorrhaging in both eyes and acute subdural hematoma on the left side of his brain, which was causing his seizures. According to CHLA doctors, “these symptoms w[e]re usually indicative of Shaken Baby Syndrome.”

After meeting with the ophthalmologist, father called Downs to talk about “what had really happened to A.L.” Downs changed her story again, stating that A.L. had been “hitting his head all day with a rack of toys, and... fallen from a changing table twice.” Shortly after the call, the parents met with emergency social worker Shawn Rivas, who had come to the hospital to interview the parents and observe A.L. A detective told Rivas that the LAPD was charging Downs with aggravated assault based, in part, on the fact that she had “repeatedly changed her story regarding the incident.”

While the parents were at the hospital, father had a “personality conflict” with several CHLA employees, including CHLA physician Karen Iwagawa and CHLA social workers Sandy Himmelrich and Elizabeth Wilson. As a result of this conflict, Iwagawa, Himmelrich and Wilson engaged in a “malicious effort to convince police officers” that the parents, and not Downs, had abused A.L.

Page 1463

On Friday, September 19, two days after A.L. had been diagnosed with symptoms that were consistent with Shaken Baby Syndrome, mother was napping in A.L.’s hospital room when she was awakened by two social workers and employees of the hospital. The social workers told mother they were putting a “‘hold’ on A.L. because it was unclear how or by who A.L. had been injured.” Although the social workers did not have a warrant or court order authorizing the detention of A.L., they told mother to leave the hospital and informed her that she would have to make an appointment with the next available social worker if she wanted to see her son.

While mother was being removed from the hospital, DCFS social worker Eva Yomtobian traveled to the parents’ home, where mother’s sister and brother-in-law, Jessica Acre-Gomez and Ignacio Gomez (the Gomezes), were taking care of A.L.’s three year old sibling, N.L. Yomtobian told the Gomezes that she had a warrant to detain N.L., which was not true, and let herself into the home. Yomtobian then threatened to arrest the Gomezes and detain their children, Isaac and Ignacio, if they did not cooperate. Based on these threats, the Gomezes permitted Yomtobian to conduct a search of the parents’ home, which lasted two hours. At the end of the search, Yomtobian took custody of N.L. and placed him in a foster home. While in the custody of DCFS, N.L. was subjected to a physical examination that was conducted without the parents’ consent.

After the parents were informed that DCFS had detained N.L., they repeatedly called Yomtobian to find out where their son had been placed. Yomtobian waited two days before returning these calls. On the morning of Sunday, September 21, Yomtobian gave the parents the number of N.L.’s foster home. When the parents called N.L., he sobbed uncontrollably.

On Monday, September 24, four days after A.L. and N.L. were detained, DCFS filed a petition in juvenile court seeking jurisdiction over the children pursuant to Welfare and Institutions Code section 300. Yomtobian, who was angry at the parents for “question[ing] her authority and motives, ” included numerous false statements in the petition and an accompanying detention report, alleging, among other things, that: (1) the parents could not explain how A.L. was injured; (2) A.L.’s injuries occurred through the result of the parents’ deliberate, unreasonable and neglectful conduct; and (3) the evidence collected by DCFS “clearly indicat[ed]” that the parents had physically abused A.L. and that there was a “very high risk” they would engage in similar conduct in the future. Yomtobian also withheld “important exculpatory information, ” including the fact that the LAPD was “treating daycare owner Holly Downs as its primary suspect, and increased the charges to aggravated assault following their investigation.”

Page 1464

That same...

To continue reading