Parkes v. County of San Diego
| Decision Date | 23 June 2004 |
| Docket Number | No. 02CV1770 JAH(WMC).,02CV1770 JAH(WMC). |
| Citation | 345 F.Supp.2d 1071 |
| Court | U.S. District Court — Southern District of California |
| Parties | Shane G. PARKES, et. al., Plaintiffs, v. COUNTY OF SAN DIEGO, et. al., Defendants. |
Paul W Leehey, Fallbrook, CA, for Shane G Parkes, Lisa M Parkes, Chloe Conyngham-Booth, a minor by and through her Guardian ad Litem, Holly M Parkes, a minor, by and through her Guardian ad Litem Craig Parkes, plaintiffs.
Deborah Anne McCarthy, County of San Diego Office of County Counsel, John J Sansone, Dep County Counsel, County of San Diego Office of County Counsel, William S Donnell, Deputy City Attorney, Office of the City Attorney Civil Division, San Diego, CA, for County of San Diego, by and through San Diego County Department of Health and Huamn Services, San Diego County Department of Health and Human Services, Roberto Calderon, Trudy Simoes, Diana Prince, William T Giddens, San Diego City of, Mary Gressel, Ramirez, Officer, Does, 1-100, inclusive, defendants.
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT [Doc. No. 44]
Pending before the Court, is Defendants' motion for summary judgment. The motion was heard before this Court on April 2, 2004. After hearing argument by counsel, and a thorough review of the pleadings and exhibits filed, the Court GRANTS IN PART AND DENIES IN PART Defendants' motion for summary judgment.
This action arises from a report made to the San Diego County Health & Human Services Agency Child Abuse Hotline regarding Plaintiff Holly M. Parkes ("Holly"). On June 6, 2001, Holly, then four years old, told her teacher, Debbie Hare, her vagina was sore, because her daddy tickled her there. Ms. Hare made an audiotape of her conversation with Holly. On June 7, 2001, Dee Dee Smith, the director of Holly's pre-school, told Holly's mother, Plaintiff Lisa Parkes ("mother") about Holly's statements and played her the audiotape. Ms. Smith telephoned Child Protective Services ("CPS") and told the mother to return the next day to meet with someone from CPS. On June 8, 2001, Defendant Diana Prince, Protective Services Worker, went to Holly's school to conduct an investigation. After interviewing Holly and Plaintiff Chloe Conyngham-Booth ("Chloe"), Holly's six year old sister, and speaking with the mother, Prince took Holly and Chloe into protective custody. The children were taken to Polinsky Children's Center. Medical examinations were conducted on the children after their arrival.
The matter was transferred to Defendant Roberto Calderon, Court Intervention Worker, and a dependency petition was filed pursuant to California Welfare and Institutions Code § 300. Defendant Gertrude "Trudy" Simoes was Calderon's supervisor. A detention hearing was held on June 13, 2001. The judge found the initial removal was necessary and there was no reasonable means by which the children's physical or emotional health would be protected without removing them from the parents. The judge detained the children in Polinsky and gave the agency discretion to detain the children with a relative upon a favorable home evaluation. The maternal grandmother from New Zealand and Craig Parkes, a paternal uncle from San Diego, appeared at the hearing and volunteered as relative placements for the children. The mother agreed to allow evidentiary examinations. An evidentiary interview and medical exam were conducted on Holly at the Center for Child Protection at Children's Hospital on June 14, 2001. Holly and Chloe were placed in their home with their maternal grandmother on June 25, 2001. The petition was dismissed on July 25, 2001 and Plaintiffs agreed to enter into a Voluntary Case Plan. Plaintiffs moved to New Zealand on July 28, 2001.
On June 10, 2002, Plaintiffs filed a complaint in Superior Court alleging assault, battery, false imprisonment, intentional infliction of emotional distress, legal malpractice and violations of civil rights for the alleged unlawful taking, examinations and continued detention of Holly and Chloe. Defendant County of San Diego filed an answer and removed the action to the United States District Court for the Southern District of California on September 6, 2002. On October 17, 2003, Defendants County of San Diego, Prince, Calderon, Simoes and Giddens filed a motion for summary judgment.1 On February 12, 2004, Plaintiffs filed an opposition. Defendants filed a reply on February 13, 2004. Plaintiffs filed objections to the reply on February 20, 2004. This Court heard oral argument on the motion on April 2, 2004. During the hearing, this Court granted Plaintiffs' request for leave to file a surreply. The matter was thereafter taken under submission.
Summary judgment is properly granted when "there is no genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). Entry of summary judgment is appropriate "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The party moving for summary judgment bears the initial burden of establishing an absence of a genuine issue of material fact. Celotex, 477 U.S. at 323, 106 S.Ct. 2548. Where the party moving for summary judgment does not bear the burden of proof at trial, it may show that no genuine issue of material fact exists by demonstrating that "there is an absence of evidence to support the non-moving party's case." Id. at 325, 106 S.Ct. 2548. The moving party is not required to produce evidence showing the absence of a genuine issue of material fact, nor is it required to offer evidence negating the moving party's claim. Lujan v. National Wildlife Fed'n, 497 U.S. 871, 885, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990); United Steelworkers v. Phelps Dodge Corp., 865 F.2d 1539, 1542 (9th Cir.1989). Rather, the motion may, and should, be granted so long as whatever is before the District Court demonstrates that the standard for the entry of judgment, as set forth in Rule 56(c), is satisfied." Lujan, 497 U.S. at 885, 110 S.Ct. 3177 (quoting Celotex, 477 U.S. at 323, 106 S.Ct. 2548).
Once the moving party meets the requirements of Rule 56, the burden shifts to the party resisting the motion, who "must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Without specific facts to support the conclusion, a bald assertion of the "ultimate fact" is insufficient. See Schneider v. TRW, Inc., 938 F.2d 986, 990-91 (9th Cir.1991). A material fact is one that is relevant to an element of a claim or defense and the existence of which might affect the outcome of the suit. The materiality of a fact is thus determined by the substantive law governing the claim or defense. Disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment. T.W. Electrical Service, Inc. v. Pacific Electrical Contractors Ass'n, 809 F.2d 626, 630 (9th Cir.1987)(citing Anderson, 477 U.S. at 248, 106 S.Ct. 2505).
Plaintiffs filed objections to Defendants' reply. Specifically, they object to the submission of the exhibits and declarations, an argument contained in the reply and specific provisions of the declarations.
Plaintiffs argue Rule 7.1(e)(3) of the Local Rules of Practice for the United States District Court for the Southern District of California does not permit a party to submit declarations and exhibits in support of a reply. Plaintiffs also argue the reply should be stricken, because Defendants raise a new argument. However, this Court granted Plaintiffs leave to file a surreply to address the issue and the surreply was filed with documents in support. Furthermore, the language of Local Rule 7.1(e)(3) does not specifically permit or prohibit the filing of exhibits and declarations in support of a reply. Accordingly, Defendants objections are overruled and motion to strike the reply is DENIED.
Plaintiffs also object to specific paragraphs of the declarations submitted in support of the reply. Specifically, they object to paragraph 6 of Richard Songer's declaration, paragraphs 3, 4, 5, and 7 of Karen Richter's declaration and paragraphs 2, 11, 12 and 13 of Deborah McCarthy's declaration.
Based upon the information contained in the extensive exhibits filed by the parties, the Court found it unnecessary to consider the objected to portions of the declarations in making its determination on the motion.2 As such, the motion to strike portions of the Songer, Richter and McCarthy3 declarations is DENIED as moot.
Defendants seek summary judgment and assert (1) Defendants Prince, Calderon and Simoes are immune from suit under state law for all actions taken in connection with their investigation and the filing of the dependency petition, (2) Calderon's and Simoes' conduct in filing and prosecuting the dependency proceeding is privileged under state law, (3) the judge's findings at the detention hearing validate their conduct, (4) Plaintiff's cannot establish their legal malpractice claim against deputy public defender Giddens, because they have not designated an expert witness, (5) Defendants are entitled to qualified immunity under federal law, (6) Defendants Calderon and Simoes are entitled to absolute prosecutorial immunity under federal law for all activity relating to the dependency proceedings, (7) Plaintiffs fail to state a Monell claim against the County and (8) Plaintiffs cannot demonstrate a risk of irreparable harm in...
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