Olvera v. Cnty. of Sacramento, No. CIV. 2:10–550 WBS CKD.

• Court: United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
• Writing for the Court: WILLIAM B. SHUBB
• Citation: 932 F.Supp.2d 1123
• Parties: Edward OLVERA, Carla De Rose, Individually and as Guardian Ad Litem for AND-O, CHD–O, COD–O, SD–O, AGD–O, GD–O, RD–O, minor children, Susan Morrison, Kelly Meis, Plaintiffs, v. COUNTY OF SACRAMENTO, Jeanine Lopez, Fermine Perez, Jennifer Cullivan, Bryan Jones, Robin Rogers, Keeva Pierce, Veronica Carillo, Stephanie Lynch, Lynn Frank, Solla, Laura Coulthard, and Does 1 through 20, Defendants.
• Docket Number: No. CIV. 2:10–550 WBS CKD.
• Decision Date: 19 March 2013

932 F.Supp.2d 1123

Edward OLVERA, Carla De Rose, Individually and as Guardian Ad Litem for AND-O, CHD–O, COD–O, SD–O, AGD–O, GD–O, RD–O, minor children, Susan Morrison, Kelly Meis, Plaintiffs,
v.
COUNTY OF SACRAMENTO, Jeanine Lopez, Fermine Perez, Jennifer Cullivan, Bryan Jones, Robin Rogers, Keeva Pierce, Veronica Carillo, Stephanie Lynch, Lynn Frank, Solla, Laura Coulthard, and Does 1 through 20, Defendants.

No. CIV. 2:10–550 WBS CKD.

United States District Court,
E.D. California.

March 19, 2013.

[932 F.Supp.2d 1132]

Dennis Ingols, Robert Ross Powell, Brett O. Terry, Law Offices of Robert R. Powell, San Jose, CA, Ronald R. Haven, Shepard and Haven, LLP, Sacramento, CA, for Plaintiffs.

Mark Peter O'Dea, Longyear, O'Dea & Lavra, LLP, Carol A. Wieckowski, Cathleen Janel Fralick, Daniel P. Jay, Evans, Wieckowski & Ward, Sacramento, CA, for Defendants.

ORDER RE: MOTIONS FOR SUMMARY JUDGMENT AND MOTION TO APPOINT GUARDIAN AD LITEM
WILLIAM B. SHUBB, District Judge.

Plaintiffs brought this civil rights action under 42 U.S.C. § 1983 against defendants the County of Sacramento, the Department of Health and Human Services (“DHHS”), Child Protective Services (“CPS”), CPS employees, and Sacramento County counsel based on an investigation by CPS and the removal of a minor child from plaintiffs Edward Olvera and Carla DeRose's home. Presently before the court are two motions for summary judgment pursuant to Federal Rule of Civil Procedure 56 and plaintiffs' motion to appoint a guardian ad litem for the minor children plaintiffs pursuant to Rule 17.

I. Factual and Procedural Background

Plaintiffs and spouses Olvera and DeRose are licensed marriage and family therapists and are the natural parents of minor plaintiff RD–O. As of December 2008, Olvera and DeRose were the adoptive parents of minor plaintiffs SD–O, COD–O, and GD–O, were in the process of adopting minor plaintiffs AGD–O and AND–O, and had filed an incomplete adoption request for the adoption of minor plaintiff CHD–O. Until Olvera and DeRose adopted CHD–O on May 24, 2010, his adoptive parents were plaintiffs Susan Morrison and Kelley Miess.

In 2006, Olvera and DeRose began a therapeutic program in their home for adopted children suffering from severe emotional, psychological, and behavioral disorders in which the children lived in the Olvera/DeRose home and received treatment and education. In November 2007, Olvera and DeRose purchased a larger home and enrolled more children in their full-time, in-home program.

[932 F.Supp.2d 1133]

In December 2008, CPS received a report from a mandatory reporter that a child named Russell claimed he was subject to abuse when he previously lived in the Olvera/DeRose home. Based on this report, CPS began an investigation and the case was assigned to defendant Jeannine Lopez. On December 19, 2008, Lopez interviewed several children living in the Olvera/DeRose home at their school and, later that evening, went to the Olvera/DeRose home with defendant Claudia Solla and two police officers to interview other children residing at the home. Plaintiffs allege that the interviews on December 19, 2008, were performed without consent in violation of the Fourth Amendment. Defendant Wendy Christian, a CPS employee, also returned to the Olvera/DeRose home on January 6, 2009, and allegedly entered the home without consent in violation of the Fourth Amendment.

Based on Lopez's investigation and discussions during several “staffings” with CPS employees and County counsel, it was decided that Lopez would seek a protective custody warrant for the removal of AGD–O, AD–O, and CHD–O from the Olvera/DeRose home. To seek the removal of CHD–O, Lopez began drafting an application for a protective custody warrant (“PCW”), which may have been edited by defendant Eva Schrage and County counsel defendants Lisa Travis and Christopher Guillon. Plaintiffs allege that the PCW for the removal of CHD–O contained misrepresentations and omitted exculpatory evidence in violation of the Fourth Amendment. The juvenile court ultimately issued a protective custody warrant for the removal of CHD–O, but denied the applications for protective custody warrants for the removal of AGD–O and AD–O.

Pursuant to the protective custody warrant, CHD–O was removed from the Olvera/DeRose home on February 5, 2009, and placed in foster care while contested detention hearings were conducted. Ultimately, a settlement agreement was reached in which CHD–O was allowed to return to the Olvera/DeRose home under certain conditions.

In their Third Amended Complaint (“TAC”), plaintiffs assert the following eight claims:

1) the minor children plaintiffs' § 1983 claim against Lopez and Solla based on violations of their Fourth Amendment rights;

2) CHD–O's § 1983 claim against all defendants based on violation of his Fourth Amendment right;

3) all plaintiffs' § 1983 claim against all defendants based on violations of their Fourteenth Amendment rights to familial association caused by the removal of CHD–O from the Olvera/DeRose home without procedural due process; ¹

4) all plaintiffs' § 1983 claim against all defendants based on violations of their Fourteenth Amendment rights to familial association caused by the continued detention of CHD–O and “conspiracy to commit fraud upon the juvenile court and abuse the lawful processes of the court through repeated submissions of false evidence, misrepresentation, and the withholding of exculpatory evidence” without procedural due process, (Third Am. Compl. ¶ 157 (Docket No. 75));

5) all plaintiffs' § 1983 claim against all defendants based on violations of their First Amendment rights of association;

[932 F.Supp.2d 1134]

6) all plaintiffs' state law claim for intentional infliction of emotional distress against Lopez and Solla;

7) all plaintiffs' state law claim for intentional infliction of emotional distress against all individual defendants; and

8) all plaintiffs' § 1983 claim against all defendants based on violations of their Fourth Amendment rights when Christian entered the Olvera/DeRose home.

The County of Sacramento, DHHS, CPS, and the CPS employee defendants now move for summary judgment on all of plaintiffs' claims pursuant to Rule 56 (“County's motion”). County counsel defendants Travis and Guillon also seek summary judgment on the claims against them, primarily on the ground of absolute immunity. Plaintiffs have also requested that the court appoint DeRose as guardian ad litem for the minor plaintiffs before addressing any of the minor plaintiffs' claims.

In their opposition to the County's motion, plaintiffs indicate that they waive their fifth claim under § 1983 based on alleged violations of the First Amendment and all claims against defendants Fermine Perez, Laura Coulthard, Lynn Frank, Joni Edison, Keeva Pierce, Stephanie Lynch, Veronica Carrillo, Fred Demartin, Kim Pearson, Patti Gilbert–Driggs, and Melinda Lake. (Pls.' Opp'n to Cnty.'s Mot. at 2:4–11 (Docket No. 146).) Plaintiffs also indicate that they waive all claims based on defendants' alleged conspiracy to retaliate against Olvera based on his alleged prior “whistleblowing” activity while previously employed with CPS. ( Id. at 1:15–17.)

II. DiscussionA. Motion to Appoint Guardian Ad Litem

Pursuant to Federal Rule of Civil Procedure 17(c), “[a] minor or an incompetent person who does not have a duly appointed representative may sue by a next friend or by a guardian ad litem.” Fed.R.Civ.P. 17(c). Rule 17(c) provides that the “court must appoint a guardian ad litem—or issue another appropriate order—to protect a minor or incompetent person who is unrepresented in an action.” Id. Recognizing that a motion to appoint a guardian ad litem should have been filed earlier in this action, plaintiffs now request the court to appoint DeRose as a guardian ad litem for the minor children plaintiffs (AND–O, CHD–O, COD–O, SD–O, AGD–O, GD–O, and RD–O) nunc pro tunc to the date this action was filed. All defendants have filed statements of non-opposition to this request. (Docket Nos. 157 & 158.) Accordingly, the court will grant plaintiffs' motion to appoint DeRose as guardian ad litem for the minor children plaintiffs nunc pro tunc to the date this action was filed.

B. Motions for Summary Judgment

Summary judgment is proper “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A material fact is one that could affect the outcome of the suit, and a genuine issue is one that could permit a reasonable jury to enter a verdict in the non-moving party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The party moving for summary judgment bears the initial burden of establishing the absence of a genuine issue of material fact and can satisfy this burden by presenting evidence that negates an essential element of the non-moving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 322–23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Alternatively, the moving party can demonstrate that the non-moving party cannot produce evidence to support an essential element upon which

[932 F.Supp.2d 1135]

it will bear the burden of proof at trial. Id.

Once the moving party meets its initial burden, the burden shifts to the non-moving party to “designate ‘specific facts showing that there is a genuine issue for trial.’ ” Id. at 324, 106 S.Ct. 2548 (quoting then-Fed. R. Civ. P. 56(e)). To carry this burden, the non-moving party must “do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). “The mere existence of a scintilla of evidence ... will be insufficient; there must be evidence on which the jury could reasonably find for the [non-moving party].” Anderson, 477 U.S. at 252, 106 S.Ct. 2505.

In resolving a summary judgment motion, the...