A.C. v. Erica Cortez ( 2022 )


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  •                      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.