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Shawn A. McMillan, Esq. – SBN 208529Stephen D. Daner, Esq. – SBN 259689Samuel H. Park, Esq. – SBN 261136THE LAW OFFICES OF SHAWN A. MCMILLAN, APC4955 Via LapizSan Diego, California 92122Telephone: (858) 646-0069Facsimile: (206) 600-4582

Attorneys for Kendall Hardwick, Plaintiff herein

SUPERIOR COURT OF THE STATE OF CALIFORNIA, COUNTY OF ORANGE

CIVIL COMPLEX CENTER

KENDALL HARDWICK,

v.

COUNTY OF ORANGE, MARCIAVREEKEN, ELAINE WILKINS, HELENDWOJAK, SHARON GRIER; and DOES 1through 100

Case No.: 30-2010-00408503Judge: Nancy Wieben StockDepartment: CX-105

REPLY IN SUPPORT OF MOTION FORSUMMARY ADJUDICATION OF ISSUESON THE ISSUE OF LIABILITY AS PERSTIPULATED ORDER UNDER C.C.P.§437c(s); AND AS TO DEFENDANTS’SEVENTH AFFIRMATIVE DEFENSE OFQUALIFIED IMMUNITY, THEIREIGHTH AFFIRMATIVE DEFENSE OFABSOLUTE IMMUNITY, THEIRFOURTH AFFIRMATIVE DEFENSE OFCONTRIBUTORY NEGLIGENCE, ANDTHEIR TWELFTH AFFIRMATIVEDEFENSE OF “RIGHT TO ASSERTADDITIONAL AFFIRMATIVEDEFENSES.”

Hearing Date: November 30, 2012Time: 10:30 a.m.

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REPLY IN SUPPORT OF MOTION FOR SUMMARY ADJUDICATION OF ISSUES i

TABLE OF CONTENTS

I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

II. SUMMARY OF THE FACTS LITIGATED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

III. PRELIMINARY MATTERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

A. Defendants Are Bound By The Facts Admitted In Their Stipulation . . . . . . . . . . . 4

B. Improper Legal Arguments Contained in Defendants’ Opposition to Kendall’s

Separate Statement: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

C. Improper Arguments Contained in the Objections to Evidence: . . . . . . . . . . . . . . . 5

D. Improper & Extensive Use of Footnotes to Avoid The Court Ordered PageLimitations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

IV. LAW & ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

A. Offensive Use of Collateral Estoppel is Proper Here Because Defendants AlreadyHad a “Full and Fair Opportunity to Litigate The Issues.” . . . . . . . . . . . . . . . . . . . 6

B. The Elements of Collateral Estoppel Are Met . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

C. The Issues Litigated in Fogarty-Hardwick are Identical to Those Raised by Kendall . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

1. There Has Been No Change in Law Regarding the Standards Applied toFourteenth Amendment Familial Association Claims. . . . . . . . . . . . . . . . . 8

2. There Has Been No Change in The Law Regarding Qualified Immunity ThatWould Effect The Analysis in Either Deanna’s Case or Kendall’s . . . . . . 10

a. Plaintiff’s Right to be Free From False or Perjured Testimony And/orThe Deliberate Suppression of Exculpatory Evidence Was ClearlyEstablished Prior to 2000 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

b. The Ruling in Costanich v. Dep't of Soc. & Health Servs. 627 F.3d1101 (9th Cir. Wash. 2009), Did Not Change The Law That isApplicable to Kendall’s Circumstances . . . . . . . . . . . . . . . . . . . . . 11

3. A Parent’s and a Child’s Fourteenth Amendment Rights are Reciprocal . 13

4. There is No Distinction Between the Right to Familial Association and TheRight to Privacy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

D. The Absolute Immunity Defense Lacks Merit . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

V. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

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REPLY IN SUPPORT OF MOTION FOR SUMMARY ADJUDICATION OF ISSUES ii

TABLE OF AUTHORITIES

FEDERAL CASES:

Allen v. McCurry, 449 U.S. 90 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Ashcroft v. al-Kidd, 131 S. Ct. 2074 (U.S. 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Bellingham v. DeBoer 532 U.S. 992 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Beltran v. Santa Clara County, 514 F.3d 906 (9th Cir. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Carey v. Population Services International, 431 U.S. 678 (1977) . . . . . . . . . . . . . . . . . . . . . . . . 14

Costanich v. Dep't of Soc. & Health Servs. 627 F.3d 1101 (9th Cir. Wash. 2009) . . . . . . . . . 11, 12

County of Sacramento v. Lewis, 523 U.S. 833 (U.S. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Croft v. Westmoreland County Children & Youth Servs., 103 F.3d 1123 (3d Cir. 1997) . . . . . . . 12

Crumpton v. Gates 947 F.2d 1418 (9th Cir. Cal. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Curnow by and Through Curnow v. Ridgecrest Police 952 F.2d 321 (9th Cir. 1991) . . . . . . . . . 13

DeBoer v. Pennington 206 F.3d 857 (9th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Devereaux v. Abbey, 263 F.3d 1070 (9th Cir. Wash. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . 10-12

Drummond v. City of Anaheim 343 F.3d 1052 (9th Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Elder v. Holloway 510 U.S. 510 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Griffin v. Strong, 983 F.2d 1544 (10th Cir. Utah 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Haring v. Prosise, 462 U.S. 306 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Hervey v. Estes, 65 F.3d 784 (9th Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Hodgers-Durgin v. de la Vina 199 F. 3d 1037 (9th Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Hope v. Pelzer, 536 U.S. 730 (U.S. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

IDK, Inc. v. County of Clark, 836 F.2d 1185 (9th Cir. Nev. 1988) . . . . . . . . . . . . . . . . . . . . . . . . 14

J.B. v. Wash. County, 127 F.3d 919 (10th Cir. Utah 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

James v. Rowlands, 606 F.3d 646 (9th Cir. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Jensen v. City of Oxnard, 145 F.3d 1078 (9th Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Miller v. Cal. Department of Social Services, 355 F.3d 1172 (9th Cir. Cal. 2004) . . . . . . . . . . . . 14

Miller v. Gammie, 335 F.3d 889 (9th Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Mooney v. Holohan, 294 U.S. 103 (1935) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

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REPLY IN SUPPORT OF MOTION FOR SUMMARY ADJUDICATION OF ISSUES iii

Moreland v. Las Vegas Metro. Police Dep't, 159 F.3d 365 (9th Cir. Nev. 1998) . . . . . . . . . . . . . . 9

N. Mariana Islands v. Bowie, 243 F.3d 1109 (9th Cir. Haw. 2001) . . . . . . . . . . . . . . . . . . . . . . . 10

Napue v. Illinois 360 U.S. 264 (1959) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Ovando v. City of Los Angeles 92 F.Supp.2d 1011 (C.D. Cal. 2000) . . . . . . . . . . . . . . . . . . . . . . 13

Parklane Hosiery Co. v. Shore 439 U.S. 322 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Porter v. Osborn, 546 F.3d 1131 (9th Cir. Alaska 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Pyle v. Kansas 317 U.S. 213 (1942) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Reichle v. Howards, 132 S. Ct. 2088 (U.S. 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Roe v. Wade, 410 U.S. 113 (1973) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Roska v. Peterson, 328 F.3d 1230 (10th Cir. Utah 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Santosky v. Kramer, 455 U.S. 745 (U.S. 1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Smith v. City of Fontana 818 F.2d 1411 (9th Cir. 1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Snell v. Tunnell 920 F.2d 673 (10th Cir. Okla. 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 13

Stanley v. Illinois 405 U.S. 645 (1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Tamas v. Dep't of Soc. & Health Servs., 630 F.3d 833 (9th Cir. Wash. 2010) . . . . . . . . . . . . . . . 15

United States v. Lanier 520 U.S. 259 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Waltz v. United States Dep't of Agric., 251 F.R.D. 491 (E.D. Cal. 2008) . . . . . . . . . . . . . . . . . . . . 7

Wilkinson v. Torres, 610 F.3d 546 (9th Cir. Wash. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

FEDERAL STATUES:

42 U.S.C. § 1983 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATE CASES:

Adoption of Kay C., 228 Cal.App.3d 741 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Arce v. Childrens Hospital Los Angeles, 211 Cal.App.4th 1455 (2012) . . . . . . . . . . . . . . . . . . . . . 2

Areso v. CarMax, Inc. 195 Cal.App.4th 996 (2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Catsouras v. Department of California Highway Patrol, 181 Cal.App.4th 856 (2010) . . . . . . . . . 1

Elliott v. Albright 209 Cal.App.3d 1028 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Evans v. Centerstone Development Co., 134 Cal.App.4th 151 (2005) . . . . . . . . . . . . . . . . . . . . . . 5

Hernandez v. City of Pomona, 46 Cal.4th 501 (Cal. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

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REPLY IN SUPPORT OF MOTION FOR SUMMARY ADJUDICATION OF ISSUES iv

Hernandez v. City of Pomona, 46 Cal. 4th 501 (Cal. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Mendoza v. City of West Covina, 206 Cal.App.4th 702 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Nazir v. United Airlines, Inc., 178 Cal.App.4th 243 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Reeves v. Safeway Stores, Inc., 121 Cal.App.4th 95 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Roos v. Red, 130 Cal.App 4th 870 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9

Sabi v. Sterling, 183 Cal. App. 4th 916 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Smith v. Walter E. Heller & Co., 82 Cal. App. 3d 259 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Sosinsky v. Grant, 6 Cal. App. 4th 1548 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Vandenberg v. Superior Court, 21 Cal. 4th 815 (1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

White Motor Corp. v. Teresinski, 214 Cal. App. 3d 754 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

STATE RULES:

CRC-Rule 3.1354 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

STATE STATUTES:

C.C.P. §437c(b)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

C.C.P. §437c(s)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

CRC Rule 3.1113 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

CRC Rule 3.1350 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

OTHER AUTHORITIES:

http://dictionary.reference.com/browse/reciprocal?s=t.

http://www.merriam-webster.com/dictionary/same.

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REPLY IN SUPPORT OF MOTION FOR SUMMARY ADJUDICATION OF ISSUES 1

I. INTRODUCTION

Defendants concede that collateral estoppel may be applied to “bar re-litigation of issues

previously litigated.” (Opposition, p.8:20-8:21). However, Defendants suggest that the issues

litigated in Fogarty-Hardwick were “different” from those litigated here because:

1) The law has changed, (Opposition, pp.10:1, 12:8, );

2) There is a legal distinction between a Parent’s and Child’s companionship interests,(Opposition, p.15:1);

3) The Absolute Immunity Defense – which was not litigated in the related case – hasmerit, (Opposition, p.18:12, and 19:9); and,

4) The Fogarty-Hardwick judgment decided claims not presented by Kendall, (Opposition,p.21:20).

Defendants ignore the factual predicates to liability under 42 U.S.C. § 1983. In their

opposition, Defendants argue substantially the same, competing, story-line they did at trial and on

appeal. Thus, in reality, they are challenging the credibility of the evidence presented to the jury.

Collateral estoppel prevents them from doing this. (Sosinsky v. Grant, 6 Cal. App. 4th 1548, 1569

(1992).)

Kendall is required to prove only two things: First, that Defendants have deprived her of a

federal right; and, second, that Defendants acted under color of state or territorial law. [Citation.]”

(Catsouras v. Department of California Highway Patrol, 181 Cal. App. 4th 856, 890 (2010).) In

determining what “issues” have already been litigated in the prior proceedings, “[C]ourts look

carefully at the entire record . . . including the pleadings, the evidence, the jury instructions, and

any special jury findings or verdicts.” (Hernandez v. City of Pomona, 46 Cal. 4th 501, 511(Cal.

2009); emphasis added.) “The ‘identical issue’ requirement addresses whether ‘identical factual

allegations’ are at stake in the two proceedings, not whether the ultimate issues or dispositions are

the same. (Id.)

Here, the facts establishing liability have already been proved, i.e., Defendants lied to

achieve their goal of separating Deanna from her children – including Kendall. It has also been

established that Defendants were acting under color of law when they did these things. These

“facts” were hotly contested by Defendants in Deanna’s case, were tried to the jury – who reached

a 10-2 verdict; and, were reviewed on appeal. There is no need for Kendall to establish these

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“facts” anew. Collateral estoppel bars their re-litigation. Moreover, she does not need to prevail on

both her Fourth and Fourteenth Amendment claims in order to prevail here, either one will do.

(Arce v. Childrens Hospital Los Angeles, 211 Cal. App. 4th 1455, 1482, fn.15 (2012) “[W]e need

not address this alternative theory of liability.”) As such, Kendall’s motion for summary

adjudication of the issues presented here should be granted.

II. SUMMARY OF THE FACTS LITIGATED

Defendants protest that they cannot ascertain, from their review of the Fogarty-Hardwick

record, what lies were told. Their complaint is without merit. The specific allegations litigated and

tried are readily ascertainable from the face of the Fogarty-Hardwick complaint. See, Plaintiff’s

Response to Defendants’ Separate Statement of Additional Material Facts, ¶21, (PRDSSAMF

¶21). Some of these facts include:

1) On February 17, 2000 Vreeken and Wilkins “intentionally misinformedthe court that the Plaintiff had told the minor children . . .th[eir] father was tryingto take the[m] away from [her] which resulted in the removal of both minorchildren from [Deanna].” (PRDSSAMF ¶21, ¶22(6).);

2) On February 23, 2000, defendant VREEKEN submitted a report to thedependency court that contained intentional false statements of the Plaintiff’sconduct, knowing the statements were maliciously false and knowinglywithholding [Deanna’s] children from her without cause. . ." (Id.);

3) That on March 1, 2000, Vreeken “maliciously attempted to deprive[Deanna] of her children by misrepresenting to the court that said minor childrenwere doing well, when in fact both children were emotionally distressed, and theminor Kendall Hardwick was physically ill due to said institutionalization.”(Id.);

4) That on March 29, 2000, Vrekeen, while testifying in the dependencycourt action, “perpetrated a fraud by deliberately committing perjury while underoath by once again repeating the false statements with regard to [Deanna’s]conduct of February 13, 2000, knowing them to be false, and thereby causing[Deanna’s] children to further be withheld from her care custody and control.”(Id.);

6) That on April 4, 2000, “Vreeken . . . depriv[ed] [Deanna] herconstitutional right of familial association with her daughters." (Id; emphasisadded.);

7) “Vreeken . . . [and] DWOJAK . . . unlawfully detained KendallHardwick . . . by maliciously committing perjury and fabricating evidence to thecourt in the form of statements defendants knew to be untrue and furthercontinuing such malicious tortuous [sic] conduct by their failure to come forwardand disclose known exculpatory evidence which resulted in [Deanna’s] childrenbeing further withheld from her and exerting undue influence which was grosslyoppressive and took unfair advantage of [Deanna] . . .”(Id.);

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8) “COUNTY OF ORANGE . . . had a policy of deliberate indifference tothe rights and liabilities of [Deanna], and so negligently and carelessly failed tosupervise, manage, control, and direct the activities of . . . VREEKEN, WILKINS,[and] DWOJAK . . .so that the said policy, coupled with the actions of the saidindividual Defendants operated to deprive [Deanna] of her constitutional rightsfound in the Fourth and Fourteenth Amendments to the Constitution of the UnitedStates.” (Id; emphasis added.)

After a thorough review of the entire trial record, which included juror declarations, the

Court of Appeal also was able to discern the substance of Deanna’s allegations:

“[Deanna] filed this lawsuit . . . alleging tort causes of action . . . basedupon alleged violations of her constitutional right to familial association. Thebasis of these causes of action was Fogarty-Hardwick’s allegation that theCounty’s social workers had relied upon ‘intentional[ly] false statements,’fabricated evidence, and “perjury” as part of a successful effort to convince thejuvenile court to remove her daughters from her custody and place them in fostercare.

Fogarty-Hardwick also alleged the social workers deliberately withheldinformation from the court concerning the emotional detriment suffered by herdaughters while in foster placement, and thereby convinced the court to extend thechildren’s placement. Fogarty-Hardwick also asserted the County had a policy of“deliberate indifference” to the rights of parents in her situation, and as a result ofthat policy, the County failed to supervise, control or direct the conduct of itssocial workers.” (McMillan Decl., Exh. C, pp. 7-8; emphasis added.)

On appeal, Defendants admitted that the evidence proved Vreeken and Dwojak lied and

fabricated evidence: “As the County concedes, ‘[Fogarty-Hardwick] demonstrated . . . that in this

one instance, social workers lied and fabricated evidence in connection with the dependency

proceedings relating to [her] children.” (McMillan Decl., Exh. C, p. 18.) Defendants cannot simply

cast aside the record of their earlier concessions and claim that for purposes of Deanna’s case, they

lied; but, for purposes of this case, they didn’t. Allowing them to do so would yield an exceedingly

unjust – and inconsistent result.

The jury’s findings were made on a “substantial [record] (including 14 volumes of

reporter’s transcript, and 11 volumes of clerk’s transcript.)” (McMillan Decl., Exh. C, p. 21.) From

its detailed review of the entire record, including the complaint, the arguments of counsel, the

evidence, the jury instructions, verdict forms and judgment, the Appellate Court summarized the

jury’s findings correctly:

“In this case, the jury specifically concluded that Vreeken and Dwojaklied, falsified evidence, and suppressed exculpatory evidence - all of which was

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1

Same means: 2(a) - “being one without addition, change, or discontinuance;” 3 - “correspondingso closely as to be indistinguishable.” http://www.merriam-webster.com/dictionary/same.


material to the dependency court’s decision to deprive Fogarty-Hardwick ofcustody - and that they did so with malice . . . (McMillan Decl., Exh. C, p. 24.)

“As all parties conceded at oral argument, the County inflicted harm onFogarty-Hardwick only through the actions of its employees, the social workers.Because those social workers acted pursuant to the policies put in place by theCounty, it was proper to hold the County directly liable for the damages caused bytheir actions. . .”(McMillan Decl., Exh. C, pp. 30.)

“The evidence adduced at trial obviously caused both the jury and thejudge to conclude not only that something seriously wrong was done toFogarty-Hardwick in this case, but also that the wrongful conduct was not anisolated incident.” (McMillan Decl., Exh. C, p. 35.)

The specific allegations litigated in Fogarty-Hardwick, the jury findings, and the Appellate

decision cannot be ignored – as urged by Defendants. The thrust of Kendall’s motion is to establish

the three essential facts – that have already been extensively litigated – that support her claims.

Collateral estoppel prevents these Defendants from disputing that they lied (and did so with

malice) as alleged in the Fogarty-Hardwick Complaint; that their lies were material to the juvenile

dependency court’s decision to remove Kendall from her mother; and, that in doing these things

Defendants acted according to Orange County’s policies.

III. PRELIMINARY MATTERS

A. Defendants Are Bound By The Facts Admitted In Their Stipulation

Defendants urge the Court to ignore their stipulation to the facts demonstrating ‘good

cause’ for this motion. The Court should decline to do so because the stipulated facts and

circumstances were essential to show the ‘good cause’ which justified this summary procedure in

the first place. (See, C.C.P. §437c(s)(2).) To justify the expenditure of time and resources to

resolve the instant motion, Defendants represented to the Court that “there has already been a

lengthy trial which resulted in a jury verdict in favor of the Plaintiff’s mother, Deanna Fogarty, on

a related case involving the same operative facts and the same parties.” (McMillan Decl., ¶1,1

Exhibit A, pg. 2, ln. 5-7.) Defendants’ stipulation to the facts constitutes a judicial admission, and

is not merely evidence of a fact, but is a conclusive concession of the truth of a matter which has

the effect of removing it from the issues. (Smith v. Walter E. Heller & Co., 82 Cal.App.3d 259, 269

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(1978).) Nor was this stipulation unintended, erroneous, inadvertant, or without due consideration.

(Ibid; see McMillan Decl., ¶4, Exhibits 2-8.)

B. Improper Legal Arguments Contained in Defendants’ Opposition to Kendall’sSeparate Statement:

The legal arguments asserted in Defendants’ Opposition to Kendall’s Separate Statement of

Disputed Facts should be stricken. Parties are not permitted to file briefing in opposition to a

“separate statement.” The code is very specific about the documents that are permitted to be filed

in making and opposing a motion for summary judgment. Defendants’ Opposition to Kendall’s

Separate Statement fails to conform to the requirements of C.C.P. §437c(b)(3), and fails to follow

the requirements of CRC Rule 3.1350(f) and (h). In fact, it seems to contain no disputed “facts” or

“supporting evidence.” But instead constitutes a second Memorandum of Points and Authorities

that grossly exceeds the 20 page limitation of CRC Rule 3.1113(d). Defendants’ “Opposition to

Kendall’s Separate Statement” should be stricken. (Nazir v. United Airlines, Inc., 178 Cal.App.4th

243, 262 (2009); see also e.g., Reeves v. Safeway Stores, Inc., 121 Cal.App.4th 95, 106 (2004).)

C. Improper Arguments Contained in the Objections to Evidence:

Defendants’ objections to evidence are prefaced by two full pages of legal briefing,

argument, and invective that does not comply with the requirements prescribed in CRC-Rule

3.1354. The first two pages of Defendants’ “objections to evidence” should be disregarded and

stricken for failure to comply with the Rules of Court. Alternatively, they should be disregarded as

constituting an unauthorized brief in excess of the court ordered briefing page limit of 25 pages.

D. Improper & Extensive Use of Footnotes to Avoid The Court Ordered PageLimitations

Defendants excessive use footnotes is improper. Whether it was done to circumvent the

Court ordered page limitations, or for some other reason, the matters raised there should be

disregarded as waived. (Sabi v. Sterling, 183 Cal.App.4th 916, 947 (2010).) Courts are not required

to consider issues raised only in a footnote. (Evans v. Centerstone Development Co., 134

Cal.App.4th 151, 160 (2005).) Here, Defendants sought leave to file a responsive brief in excess of

the statutory limit. Kendall stipulated to Defendants’ filing of a 25 page brief. In order to meet the

25 page “limit,” Defendants simply squeezed massive amounts of text consisting of argument and

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authority into footnotes – and moved substantial legal arguments out of the opposing memorandum

and into their Objections to Evidence and Opposition to Kendall’s Separate Statement. This tactic

is improper – the matter in the footnotes should be disregarded and the issues deemed waived.

IV. LAW & ARGUMENT

None of Defendants’ arguments are availing. The cases they rely on are either inapplicable,

distinguishable, or – in fact – support Kendall’s position.

A. Offensive Use of Collateral Estoppel is Proper Here Because Defendants Already Had a“Full and Fair Opportunity to Litigate The Issues.”

Roos v. Red, 130 Cal.App.4th 870, 880 (2005) does not instruct Courts to “[V]iew with

caution a [Plaintiff’s] attempt to invoke collateral estoppel,” as Defendants claim. (See Opposition,

p.8:14.) Instead Roos teaches:

“[W]here collateral estoppel is applied ‘offensively’ to preclude a defendant fromrelitigating an issue the defendant previously litigated and lost, the courts considerwhether the party against whom the earlier decision is asserted had a ‘full and fair’opportunity to litigate the issue.” (Roos, supra, 130 Cal.App.4th at 880.)

The focus is plainly on the question of whether the defendants in the current action had a

“full and fair” opportunity to litigate the facts sought to be applied by Kendall here. (Roos, supra,

130 Cal.App.4th at p.880.) In this regard, courts consider the judicial nature of the prior forum, i.e.,

“its legal formality, the scope of its jurisdiction, and its procedural safeguards, particularly

including the opportunity for judicial review of adverse rulings.” (Vandenberg v. Superior Court,

21 Cal.4th 815, 829 (1999).)

In Vandenberg, the court found that collateral estoppel did not apply to an earlier

arbitration award, in part, because of the lack of legal formality and procedural safeguards. The

circumstances in Kendall’s case are quite different. For example, Deanna’s judgment arose from a

full-blown jury trial that lasted about five weeks and the case was intensely litigated even on

appeal.

White Motor Corp. v. Teresinski, 214 Cal.App.3d 754, 764 (1989), is also distinguishable.

There, the party against whom collateral estoppel was sought, didn’t get notice of the summary

judgment motion that yielded the judgement, and was not a party at the time the judgment was

entered. Thus, they had no reason to expect that they might be bound by the adverse ruling, and no

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reason to intervene to defend their rights. Here, in contrast, Vreeken, Dwojak, and Orange County

had every incentive to defend their position – and in fact did so vigorously.

The concerns expressed in Parklane Hosiery Co. v. Shore 439 U.S. 322, 330 (1979),

regarding the tactical advantages of adopting a “wait and see” approach, are not present here.

Kendall was a minor at the time Deanna filed her suit and was under the exclusive control of her

father – who is not supportive of her litigation efforts. Thus, any “incentive” she may have had to

“wait and see” what happened with her mother’s case was obviated by her lack of capacity to sue

because of her minority, and her custodial circumstances, i.e., she was under her father’s exclusive

control. Thus, she was not capable of filing suit on her own behalf even though she might have

wanted to do so.

B. The Elements of Collateral Estoppel Are Met

In assessing the preclusive effect of state court decisions, this Court is required to apply

California’s collateral estoppel principles – not those arising under federal law. (See Allen v.

McCurry, 449 U.S. 90, 96 (1980).) Generally speaking, however, the “issues” always arise within a

concrete procedural context, and specific factual, legal, and procedural considerations are involved.

(Waltz v. United States Dep't of Agric., 251 F.R.D. 491, 497 (E.D. Cal. 2008).) Here, Defendants

urge the Court to ignore the pleadings and evidence adduced in Deanna’s trial, and focus instead on

only the verdict forms, judgment, and certain evidence related to Deanna’s prior divorce

proceedings that was never introduced in evidence either in the dependency proceedings, or at trial

in her civil rights case. It would be error to do so. An “issue” for purposes of issue preclusion is a

single, certain, and material point arising out of the allegations and contentions of the parties, “as

reflected in the pleadings . . . or, fact as developed by the evidence.” (Id; emphasis added.)

Collateral estoppel precludes the litigation of only those issues necessary to support the

judgment entered in the first action. (Haring v. Prosise, 462 U.S. 306, 315 (1983).) To render the

judgment conclusive, it must appear by the record of the prior suit that the particular matter sought

to be concluded was necessarily tried or determined, i.e., that the verdict could not have been

rendered without deciding that matter. (See, Id.)

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Reciprocal means: “corresponding; matching; complementary; equivalent;”2

http://dictionary.reference.com/browse/reciprocal?s=t

McMillan Decl., Exh. R-8, p. 2127, 2228-2229, 2243-2244.) “Deliberate indifference” was3

also defined for the Fogarty-Hardwick jury. McMillan Decl., Exh. R-8, p.2234.


Here, the Fogarty-Hardwick verdict could not have been rendered without the jury finding

that the social workers deceived the juvenile court, that the deception was material to the juvenile

court’s decision, and that said conduct comported with Orange County’s policies and practices, etc.

The precise “safeguards” identified in Roos v. Red as essential to proving Defendants had a “full

and fair opportunity to litigate the issues,” are met by Kendall here. (See, Roos, supra, 130

Cal.App.4th at p.880.) Defendants fully and aggressively availed themselves of all the panoply

“procedural safeguards” available to them – and lost at each stage.

C. The Issues Litigated in Fogarty-Hardwick are Identical to Those Raised by Kendall.

Defendants incorrectly assert that there has been an intervening change in law that would

alter the jury’s findings regarding the specific misconduct of these defendants. They also claim

there is a distinction between a “Parent’s and a Child’s Fourteenth Amendment Familial

Association Rights.” (See Opposition, p.15.) Defendants are wrong. The companionship interests

that run between a parent and child are extant from birth, and are reciprocal. An interference with2

the rights of one, necessarily interferes with the companionship rights of the other.

1. There Has Been No Change in Law Regarding the Standards Applied to FourteenthAmendment Familial Association Claims.

Defendants erroneously suggest that the legal standard applied in reaching the Fogarty-

Hardwick verdict, i.e., “deliberate indifference” and/or “intent to harm” is no longer the correct

legal standard. They go on to argue that the “new” standard is “shocks the conscience.” (See

Opposition, p.10:21-12:7) Defendants fail to recognize that “intent to harm” and “deliberate

indifference” are both sub-sets of the “shocks the conscience” standard. The jury in Fogarty-

Hardwick was instructed on both “intent to harm” and “deliberate indifference.” There is nothing3

“new” about the “shocks the conscience” standard; more important, there is no distinction between

the “deliberate indifference” and/or “intent to harm” standard and the “shocks the conscience”

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standard. The Ninth Circuit has explained clearly that deliberate indifference and intent to harm are

merely sub-sets of the “shocks the conscience” standard:

“We begin by clarifying the standard of culpability for a due process rightto familial association claim. The parties mistakenly suggest that the choice isbetween ‘shocks the conscience’ and ‘deliberate indifference’ as the governingstandard, when in fact the latter is one subset of the former . . . we havedistinguished the ‘purpose to harm’ standard from the ‘deliberate indifference’standard, recognizing that the overarching test under either is whether the officer’sconduct ‘shocks the conscience.’” (Porter v. Osborn, 546 F.3d 1131, 1137 (9thCir. Alaska 2008).)

The holding in Wilkinson v. Torres, 610 F.3d 546, 554 (9th Cir. Wash. 2010), another case

cited by Defendants, says nothing different. Defendants contention that “None of this precedent

existed in 2007 when Fogarty-Hardwick was tried,” is also incorrect. In its analysis of the issue,

the Porter Court was informed by its review of Moreland v. Las Vegas Metro. Police Dep't, 159

F.3d 365, 372 (9th Cir. Nev. 1998), in conjunction with the United States Supreme Court’s

teachings in County of Sacramento v. Lewis, 523 U.S. 833, 847 (U.S. 1998) – both decisions were

rendered in 1998. There has been no “continued alter[ation] of the quantum of proof required for

Fourteenth Amendment ‘familial association’ claims,” as urged by defendants. (See Opposition,

p.10:21-11:1.) Deanna was required to prove her case by a ‘preponderance of the evidence,’ and

she did so. Defendants have pointed to no authority to suggest she was required to meet some other

“burden [or quantum] of proof.”

Moreover, the Fogarty-Hardwick jury was instructed as to these Defendants’ “intent to

injure,” and was further instructed that “intent to harm” could only be established by clear and

convincing evidence. (McMillan Decl., Exh. R-8, p. 2127, 2228-2229, 2243-2244.) “Deliberate

indifference” was also defined for the Fogarty-Hardwick jury. (McMillan Decl., Exh. R-8,

p.2234.) Neither of these instructions were challenged by Defendants on appeal. Even if the

instructions had been incorrect in the law or incorrectly applied to the facts, “Collateral estoppel

may apply even where the issue was wrongly decided in the first action. An erroneous judgment is

as conclusive as a correct one.’” (Roos, supra, 130 Cal.App.4th at p.887.) Here, the issues were

found by the Court of Appeal to have been correctly decided.

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2. There Has Been No Change in The Law Regarding Qualified Immunity That WouldEffect The Analysis in Either Deanna’s Case or Kendall’s

Defendants argue that since the decision in Fogarty-Hardwick became final, there have

been substantial changes in law rendering it unjust to apply collateral estoppel here. (See

Opposition, p.12:8 - 14:16.) Defendants rely on Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2078 (U.S.

2011), and Reichle v. Howards, 132 S. Ct. 2088 (U.S. 2012).) Neither of these cases announces any

“new” or “different” rule. Moreover, the cases are factually distinguishable. Ashcroft resolved on a

Fourth Amendment seizure issue, and Reichle on the plaintiff’s attempt to assert violation of a non-

existent First Amendment right.

Defendants go on to make the controversial suggestion that in February 2000, a reasonable

social worker would not have known it was a violation of Deanna’s, and by extension Kendall’s,

due process rights to lie to the juvenile court. (See Opposition, p.13.) Defendants’ argument lacks

merit.

a. Plaintiff’s Right to be Free From False or Perjured Testimony And/or TheDeliberate Suppression of Exculpatory Evidence Was Clearly EstablishedPrior to 2000

“[A] constitutional right may be clearly established by common sense.” (DeBoer v.

Pennington 206 F.3d 857, 864-65 (9th Cir. 2000), vacated on other grounds by Bellingham v.

DeBoer 532 U.S. 992 (2001).) This occurs where “conduct is so patently violative of the

constitutional right that reasonable officials would know without guidance from the courts that the

action was unconstitutional.” (James v. Rowlands 606 F.3d 646, 652 (9th Cir. 2010).) The

undeniable maxim to “tell the truth” is so deeply ingrained in the charter of the United States’s

existence that any reasonable oath-beholden government agent – including social workers – would

know without guidance from the courts that the use of false or perjured evidence to deprive an

individual of their protected liberty interests is never justified. (See e.g., N. Mariana Islands v.

Bowie, 243 F.3d 1109, 1124 (9th Cir. Haw. 2001); see also, Devereaux v. Abbey, 263 F.3d 1070,

1084 (9th Cir. Wash. 2001) (Kleinfeld, A., concurring); “[T]hese rules of constitutional law apply

not only to police, but also to the appellees in this case, who were social workers, and to others

who act on behalf of the state. Anyone who acts on behalf of the government should know that a

person has a constitutional right not to be ‘framed.’”].)

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Despite Defendants’ arguments to the contrary, precedent directly on point is not necessary

to demonstrate that a right is clearly established. (Hope v. Pelzer, 536 U.S. 730, 739 (U.S. 2002);

see also, Devereaux v. Abbey, supra, 263 F.3d at p.1075; and Drummond v. City of Anaheim 343

F.3d 1052, 1060 (9th Cir. 2003); see also e.g., Jensen v. City of Oxnard 145 F.3d 1078, 1085 (9th

Cir. 1998).) A specific case directly on all fours is not needed. (See e.g., United States v. Lanier

520 U.S. 259, 271 (1997).) Officials can still be on notice that their conduct violates established

law even in novel factual circumstances. (Hope v. Pelzer, supra, 536 U.S. at p.741.) Regardless,

any qualified immunity determination is to be made in light of all relevant precedents and includes

decisional law from other circuit courts. (Elder v. Holloway 510 U.S. 510, 512 (1994); Mendoza v.

City of West Covina 206 Cal.App.4th 702, 712 (2012).)

Long ago the United States Supreme Court unequivocally held that the government’s

knowing use of false or perjured testimony and/or the deliberate suppression of exculpatory

evidence constitutes a violation of due process. (See e.g., Napue v. Illinois 360 U.S. 264, 269

(1959); Pyle v. Kansas 317 U.S. 213, 216 (1942); Mooney v. Holohan 294 U.S. 103, 112 (1935).)

These precepts are not limited to criminal convictions, because such rights are “virtually self

evident.” (Devereaux v. Abbey, supra, 263 F.3d at 1075.) The “self evident” nature of this right

fairly and clearly puts all government officials on warning that the use of false and perjured

evidence deprives individuals of due process of law, and is therefore unconstitutional. (See e.g.,

Hervey v. Estes 65 F.3d 784, 788 (9th Cir. 1995).) In fact, as early as 1990, this right was deemed

clearly established as to social workers who procured a court order to remove a child based on

known false allegations. (Snell v. Tunnell 920 F.2d 673, 700 (10th Cir. Okla. 1990).)

b. The Ruling in Costanich v. Dep't of Soc. & Health Servs. 627 F.3d 1101 (9thCir. Wash. 2009), Did Not Change The Law That is Applicable to Kendall’sCircumstances

In Costanich the court found that the right to be free from deceptive conduct had (at that

time) not yet been clearly established in “civil foster care proceedings.” (Costanich, supra, 627

F.3d at 1115-1116.) Thus, Costanich only addressed the issue in the context of “[Administrative]

proceedings adjudicating a foster care license and termination of [dependency] guardianship” – not

in relation to juvenile dependency proceedings to determine the rights of biological parents. (See

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Costanich, supra, 627 F.3d at 1108.) The court further recognized that foster-care and guardianship

proceedings are not similar to dependency proceedings that adjudicate a parent’s legal right to the

companionship of their child. (Id.3d at 1104 n2.)

Defendants’ argument that Costanich stands for the broad proposition that the right to be

free of false or perjured evidence in juvenile court was not clearly established until 2010 – fails to

consider the narrow circumstances presented there. (See Defendants’ Opposition, pp. 13-14.)

Moreover, Defendants’ argument is based on dicta contained in Costanich stating that “going

forward” reasonable government officials are on notice that such conduct violates a foster-parent’s

rights. (Costanich, supra, 627 F.3d at 1115.) This “going forward” language is dicta, in that it is

not authoritative or necessary to the outcome of that decision. (Areso v. CarMax, Inc. 195

Cal.App.4th 996, 1005-1006 (2011).) This is further highlighted by the fact that Costanich found

that the conduct in Devereaux – that occurred in 1994 – was analogous to civil child abuse

proceedings and stated that “the right not to be accused based upon deliberately fabricated evidence

is sufficiently obvious.” (Costanich, supra, 627 F.3d at 1115; Devereaux, supra, 263 F.3d at 1073-

1074.) However, even though the right was sufficiently obvious in the context of a biological

parent in juvenile proceedings, the Costanich court found, however, that it was not so obvious in

relation to a foster-care licensing proceeding. Therefore, whether the “going forward” language in

Costanich is dicta or not, it is inapplicable to the circumstances here.

In summary, Costanich relates to “[Administrative] proceedings adjudicating a foster care

license and termination of [dependency] guardianship.” It has no application to juvenile

dependency proceedings that deprive a child, like Kendall, of her protected associational interests

with her biological mother, or vice versa. (See Costanich, supra, 627 F.3d at 1108.)

Regardless, where federal precedents are divided, state courts may independently determine

federal law. (Elliott v. Albright 209 Cal.App.3d 1028,1034 (1989).) Here, the federal district courts

have repeatedly denied social workers qualified immunity under circumstances similar to those

present in Deanna’s, and now Kendall’s, case. (See e.g., Croft v. Westmoreland County Children &

Youth Servs., 103 F.3d 1123, 1127 (3d Cir. 1997) (denying qualified immunity to a social worker

who separated a child from her parent on the basis of an uncorroborated anonymous tip and

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without “objectively reasonable grounds.”) Courts have also denied qualified immunity to social

workers investigating child abuse who fabricated evidence to support a search warrant. (Snell v.

Tunnell, 920 F.2d 673, 698 (10th Cir. 1990) (holding that social workers’ false “sworn

representations as to the existence of probable cause would be perjury . . . and perjury is not

objectively reasonable conduct.”) These cases suggest that as early as 1990 social workers knew it

was legally improper to lie about parents in juvenile dependency proceedings.

3. A Parent’s and a Child’s Fourteenth Amendment Rights are Reciprocal

It is clearly established law that, except in extraordinary circumstances, a parent has a

liberty interest in familial association and privacy that cannot be violated without adequate

pre-deprivation procedures. (Roska v. Peterson, 328 F.3d 1230, 1250 (10th Cir. Utah 2003).)

The right to familial association protects more than just the “custody” dimension of the

parent-child relationship and instead is grounded on a parent and child’s entitlement to the

“companionship” and “society” of each other. (Smith v. City of Fontana 818 F.2d 1411, 1419 (9th

Cir. 1987), overruled on other grounds by Hodgers-Durgin v. de la Vina 199 F. 3d 1037 (9th Cir.

1999); Stanley v. Illinois 405 U.S. 645, 651 (1972).) Indeed, these constitutional protections apply

to a parent and child when there is no custodial interest at all, i.e., between a parent and an adult

child. (Smith, supra, 818 F.2d at 1419; see e.g., Curnow by and Through Curnow v. Ridgecrest

Police 952 F.2d 321, 325 (9th Cir. 1991); see also Ovando v. City of Los Angeles 92 F.Supp.2d

1011, 1018 n6 (C.D. Cal. 2000).) This right is “reciprocal,” and the constitutional value to the

child-parent relationship is identical to that of the parent-child relationship.(Smith, supra, 818 F.2d

at 1418; see also Ovando, supra, 92 F.Supp.2d at 1017-1018; see also, Santosky v. Kramer, 455

U.S. 745, 760 (U.S. 1982).) Thus, any violation of this right simultaneously impacts both the

parent and the child. For example, in Smith, the Court noted that if any distinction can be drawn at

all, a child arguably has a greater liberty interest than the parent.(Smith, 818 F.2d at 1418 fn 9.)

The right to familial association between a biological parent and child does not require an

examination of the state of their relationship as urged by Defendants. Rather, the right to familial

companionship is constitutionally protected from the moment of birth. It is not even required that

the parent and child ever meet. (See e.g., Crumpton v. Gates 947 F.2d 1418, 1420-1424 (9th Cir.

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Cal. 1991).) Defendants’ argument to the contrary fails as a matter of law. Moreover, the legal

authority relied upon by Defendants does not dispose of the issue. Their authority only addresses

the rights of foster parents and grandparents – not the rights running between a biological parent

and their child. (See Defendants’ Opposition, pg. 16, ln. 13 – pg. 17, ln. 19, citing e.g., Adoption of

Kay C. 228 Cal. App. 3d 741, 749 (1991); see e.g. Miller v. Cal. Department of Social Services

355 F.3d 1172, 1176 (9th Cir. Cal. 2004).) The jury was instructed and made findings based on

Defendants’ deprivation of these ‘companionship interests.’ (McMillan Decl. Exh. Q-13, 2710:23-

2711:23, 2712:2-7; Q-14, 2826:5-16, 2834:19-25; R-8, 2228-2230, 2232-2233, 2236-2238.)

4. There is No Distinction Between the Right to Familial Association and The Right toPrivacy

Defendants complain that the jury’s failure to distinguish between Deanna’s right to

‘familial association’ and her right to ‘privacy’ in their verdict renders the Fogarty-Hardwick

verdict somehow defective. (See Opposition, p.10, fn. 12.) Defendants are incorrect.

The Fourteenth Amendment embodies three different protections: (1) a procedural due

process protection; (2) a substantive due process protection; and (3) an incorporation of specific

protections afforded by the Bill of Rights against the states. (Griffin v. Strong, 983 F.2d 1544, 1547

(10th Cir. Utah 1993).) In protecting certain kinds of highly personal relationships the Supreme

Court has most often identified the source of the protection as the due process clause of the

fourteenth amendment (IDK, Inc. v. County of Clark, 836 F.2d 1185, 1192 (9th Cir. Nev. 1988).)

The United States Supreme Court repeatedly teaches that there is “a right of personal

privacy” which includes “family relationships,” and “child rearing and education” (See e.g., Carey

v. Population Services International, 431 U.S. 678, 684-685 (1977).) In other words, the “right of

familial association is included in the substantive due process right of freedom of intimate

association, which is ‘consonant with the right of privacy.’” (J.B. v. Wash. County, 127 F.3d 919,

927 (10th Cir. Utah 1997).) Thus, there is no distinction between the right to privacy and the right

to familial association. Rather, the right to familial association is a sub-set of the bundle of rights

described by the Supreme Court as “rights of personal privacy.” (See, e.g., Roe v. Wade, 410 U.S.

113, 152 (1973).) Thus, Defendants’ argument that the Fogarty-Hardwick judgment does not

distinguish between Deanna’s right to privacy and her right to familial association fails.

I D. The Absolute Immunity Defense Lacks Merit

2 As noted in Kendall's memorandum in support of this motion, Defendants originally

3 pursued the absolute immunity defense in Fogarty-Hardwick, made the tactical decision to drop it,

4 then untimely attempted to resurrect it. Thus, Kendall asserts it was within Defendants' ability to

5 litigate the issue in the prior case, they simply made an election not to do so.

6 But, even if collateral estoppel does not bar the defense, under current law "social workers

7 are not afforded absolute immunity for their investigatory conduct, discretionary decisions or

8 recommendations." (Tamas v. Dep't of Soc. & Health Servs., 630 F.3d 833, 842 (9th Cir. Wash.

Wei 2010); citing Beltran v. Santa Clara County, 514 F.3d 906, 908-09 (9th Cir. 2008); and, Miller v.

10 Gammie, 335 F.3d 889, 898 (9th Cir. 2003).) Thus, Defendants' continued insistence that they are

11 entitled to absolute immunity from liability arising from their deception of the juvenile court is

12 misguided. V. CONCLUSION

13 The position taken by Defendants ignores the facts litigated and resolved by the jury in

14 'ogariy-Hardwick v. County of Orange etal. and misconceives the development of the law related

15 to qualified and absolute immunity. The factual predicates to liability in Kendall's case are

16 to those in Deanna's case, i.e., Defendants intentionally and maliciously deceived the

17 court, based on that deceptive conduct Kendall's relationship with her mother was

18 1, and all of this was done according to County policy. In order to establish liability,

19 more is needed. This motion does not seek to establish what damages, if any, Kendall

20 as a result of being removed from her mother's care. That is a jury question. However,

21 tl estoppel should apply to bar re-litigation of the remaining elements of Kendall's claims

22 and the identified affirmative defenses.

23 Dated April 5, 2013

24

The Law Offices of Shay n-k McMillan, APC

25 - 0

26

/'Sha4j4CMillan, (E4 S.tehe. Daner, Esq.

27

Samuel H. Park, Esq. Counsel for Plaintiff, Kendall Hardwick

28


PROOF OF SERVICE § 1013 Kendall Hardwick v. County of Orange, et at.,

Superior Court of California, County Of Orange - Civil Complex Center Case Number: 30-2010-00408503

1 am employed in the County of San Diego, State of California. I am over 18 years of age and am not a party to the within action. My business address is 4955 Via Lapiz, San Diego, California 92122.

On April 5, 2013, 1 served the foregoing documents described as:

REPLY IN SUPPORT OF MOTION FOR SUMMARY ADJUDICATION OF ISSUES ON THE ISSUE OF LIABILITY AS PER STIPULATED ORDER UNDER C.C.P. §437c(s); AND AS TO DEFENDANTS' SEVENTH AFFIRMATIVE DEFENSE OF QUALIFIED IMMUNITY, THEIR EIGHTH AFFIRMATIVE DEFENSE OF ABSOLUTE IMMUNITY, THEIR FOURTH AFFIRMATIVE DEFENSE OF CONTRIBUTORY NEGLIGENCE, AND THEIR TWELFTH AFFIRMATIVE DEFENSE OF "RIGHT TO ASSERT ADDITIONAL AFFIRMATIVE DEFENSES."

REPLY DECLARATION OF SHAWN A. MCMILLAN IN SUPPORT OF MOTION FOR SUMMARY ADJUDICATION OF ISSUES RE: COLLATERAL ESTOPPEL AS PER STIPULATED ORDER UNDER C.C.P. §437c(s)

PLAINTIFF KENDALL HARD WICK'S RESPONSE TO ORANGE COUNTY DEFENDANTS' SEPARATE STATEMENT OF ADDITIONAL MATERIAL FACTS IN OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY ADJUDICATION OF ISSUES RE: COLLATERAL ESTOPPEL

PLAINTIFF'S OBJECTIONS TO EVIDENCE PROFFERED BY DEFENDANTS IN OPPOSITION TO MOTION FOR SUMMARY ADJUDICATION OF ISSUES

[Proposed] ORDER ON PLAINTIFF'S OBJECTIONS TO EVIDENCE PROFFERED BY DEFENDANTS IN OPPOSITION TO MOTION FOR SUMMARY ADJUDICATION OF ISSUES

OPPOSITION TO DEFENDANTS' REQUEST FOR JUDICIAL NOTICE IN OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY ADJUDICATION OF ISSUES

on the interested parties in this action by placing a true copy of the original thereof enclosed in a sealed envelope addressed as follows:

Norman J. Watkins, Esq. S. Frank Harrell, Esq. / Pancy Lin Misa, Esq. Lynberg & Watkins, A.P.C. 1100 Town & Country Road, Suite 1450 Orange, CA 92868 Tel: (714) 93 7-1011 / Fax: (714) 937-1003

(BY PERSONAL SERVICE): I caused such envelope(s) to be delivered by hand to the offices of the addressee(s).

- (BY MAIL): I placed a true and correct copy of the original thereof in a sealed envelope addressed as

indicated above, and I caused such envelope to be deposited in the mail at San Diego, California. The envelope was mailed with postage thereon fully prepaid. I am "readily familiar" with the firm's practice of collection and processing correspondence for mailing. It is deposited with the U.S. Postal Service on that same day in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after the deposit for mailing in the affidavit.

- (BY FACSIMILE): I caused such documents to be transmitted from facsimile number (858) 646-0069 to all interest parties at the facsimile telephone numbers listed. The facsimile machine I used is in compliance with Rule 2003(3) and no error was reported by the machine. Pursuant to Rule 2005(1), 1 caused the transmitting machine to issue a transmission report showing that the transmission was complete and without error.

XX_ (BY EXPRESS MAIL FOR OVERNIGHT DELIVERY) : I placed a true and correct copy of the original thereof in a sealed envelope addressed as indicated above, and I caused such envelope to be deposited in the mail at San Diego, California with EXPRESS MAIL postage fully pre-paid FOR OVERNIGHT DELIVERY.

In addition to the foregoing, I requested that OneLegal also perform electronic service on the parties and their counsel as listed above.

I declare under penalty of perjury under the laws of the State of is true and correct. Executed on April 5, 2013, at San Diego, California.

PROOF OF SERVICE

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