M.M. v. Koinonia Foster Homes CA4/2 ( 2022 )

Filed 3/14/22 M.M. v. Koinonia Foster Homes CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
M.M., a Minor, etc.,
E074331
Plaintiff and Appellant,
(Super. Ct. No. CIVDS1700467)
v.
OPINION
KOINONIA FOSTER HOMES, INC., et
al.,
Defendants and Respondents.
APPEAL from the Superior Court of San Bernardino County. Bryan F. Foster,
Judge. Affirmed in part, reversed in part.
Law Offices of Garrotto & Garrotto and Greg W. Garrotto, for Plaintiff and
Appellant.
ClouseSpaniac, Katharine L. Spaniac and Erin A. Halas, for Defendant and
Respondent, Koinonia Foster Homes, Inc.
Beach Law Group, Thomas E. Beach, Mindee J. Stekkinger and Molly M. Loy,
for Defendants and Respondents, County of Los Angeles and Angela Sherzada.
1
I.
INTRODUCTION
M.M.’s foster parents, Robert and Emily Ismael, were convicted of criminal
offenses related to Mr. Ismael’s physical abuse of M.M. M.M. sued Los Angeles County,
her Los Angeles County social worker, and the foster care agency that placed her with the
Ismaels for violating her federal civil rights. She also sued the foster care agency for
negligence. The trial court sustained defendants’ demurrers to M.M.’s civil rights claims
without leave to amend and granted summary judgment to the foster care agency on
M.M.’s negligence claims. M.M. appeals, and we reverse in part and affirm in part.
II.
1
FACTUAL AND PROCEDURAL BACKGROUND
In 2013, when M.M. was two years old and under the jurisdiction of the Los
Angeles County juvenile court, her social worker at the Los Angeles County Department
of Child and Family Services (the Department), Angela Sherzada, placed her with
Koinonia Foster Homes, Inc. Koinonia is a private, non-profit foster care placement
agency, which contracts with the County to provide services for foster children.
Koinonia certified the Ismaels’ home as a licensed foster home and certified the
Ismaels to be foster parents in December 2012. Koinonia placed M.M. and her sister
1
The following facts are drawn from the evidence the parties provided in
Koinonia’s motion for summary judgment and M.M.’s opposition to it. We do not
consider this evidence when assessing whether M.M. stated viable claims, and instead
review only the operative complaint. (See Rakestraw v. California Physicians’ Service
(2000) 81 Cal.App.4th 39, 43.)
2
with the Ismaels on November 22, 2013, where Koinonia had placed their brother about a
month earlier.
During M.M.’s placement, Koinonia social workers consistently visited the
children at the Ismaels’ home. The social workers spoke with M.M. and her siblings and
discussed any concerns. M.M. never reported any problems with Mr. Ismael, and the
social workers did not observe any inappropriate behavior by him during the visits. The
Ismaels reported, however, that M.M. had psychological and behavioral issues, including
throwing tantrums, which Koinonia had disclosed to them before her placement. Because
Koinonia could not authorize therapy for M.M., it contacted the Department to request
therapy services for M.M. to address her behavioral and psychological issues.
Around February 24, 2014, the Ismaels were arrested after M.M. suffered burns all
over her body. Mr. Ismael was charged and convicted of child cruelty with a great bodily
injury enhancement and Mrs. Ismael pled guilty to disturbing the peace.
2
M.M. sued the County, Sherzada, Koinonia, and the Ismaels. In her First
Amended Complaint, M.M. asserted claims against the County and Sherzada, and
Koinonia under 42 U.S.C. section 1983 (section 1983) for alleged violations of her civil
rights. She also alleged two negligence claims against Koinonia.
After Koinonia and Sherzada’s successful demurrers, M.M. filed a Second
Amended Complaint (SAC) in which she again asserted claims against the County and
Sherzada under section 1983 for violating her civil rights and two negligence claims
2
The Ismaels are not parties to this appeal.
3
against Koinonia. Defendants demurred to M.M.’s section 1983 claims, and the trial
court sustained the demurrers without leave to amend as to Koinonia, but with leave to
amend as to the County and Sherzada.
In her operative Third Amended Complaint (TAC), M.M. again alleged section
1983 claims against the County and Sherzada and two negligence claims against
Koinonia. The County and Sherzada demurred to the TAC, which the trial court
sustained without leave to amend. The trial court later granted summary judgment to
Koinonia on M.M.’s negligence claims and entered judgment for defendants. M.M.
timely appealed.
III.
DISCUSSION
M.M. contends the trial court erroneously sustained Sherzada’s and the County’s
demurrers without leave to amend and improperly granted summary judgment for
Koinonia. We agree as to M.M.’s claims against Sherzada, but disagree as to her claims
against the County and Koinonia.
A. M.M.’s Section 1983 Claims Against The County
M.M. alleged two section 1983 claims against the County. In the first one, the
TAC’s third cause of action, M.M. alleges that the County, through Sherzada and her
unidentified supervisors, violated her federal constitutional rights by failing to provide for
her serious medical needs. M.M. alleges that Sherzada and her supervisors knew that she
had a serious medical need for therapy, yet they failed to obtain it for her. In her second
4
section 1983 claim against the County, she alleges that the County violated her federal
constitutional rights by failing to protect her from the Ismaels.
“On appeal, a plaintiff bears the burden of demonstrating that the trial court
erroneously sustained the demurrer as a matter of law. . . . Because a demurrer tests the
legal sufficiency of a complaint, the plaintiff must show the complaint alleges facts
sufficient to establish every element of each cause of action. . . . [¶] When a demurrer is
sustained without leave to amend, this court decides whether a reasonable possibility
exists that amendment may cure the defect; if it can we reverse, but if not we affirm.
(Rakestraw v. California Physicians’ Service, supra, 81 Cal.App.4th at p. 43.)
The County may not be held liable under section 1983 “under a theory of
respondeat superior for the actions of its subordinates.” (Castro v. County of Los Angeles
(9th Cir. 2016) 833 F.3d 1060, 1073 (en banc).) But it may be liable for its employees’
constitutional violations under Monell v. New York City Dept. of Social Services (1978)
436 U.S. 658 (Monell). To state a Monell claim, “[t]he plaintiff must establish that: (1)
the plaintiff was deprived of a constitutional right; (2) the government entity had a policy;
(3) this policy amounted to deliberate indifference to the plaintiff’s constitutional right;
and (4) the policy was the moving force behind the constitutional violation.” (Perry v.
County of Fresno (2013) 215 Cal.App.4th 94, 105-106.)
The County asserts M.M. fails to state a Monell claim because the TAC contains
no allegations that the alleged violations of her constitutional rights—the County’s
5
alleged failure to obtain therapy services for her and to protect her from the Ismaels—
were caused by a County policy, practice, or custom. We agree.
In the TAC, M.M. alleges Sherzada and her supervisors knew her Medi-Cal
insurance had elapsed yet failed to renew it. She also alleges Sherzada and her
supervisors knew M.M. needed therapy for her behavioral and psychological issues
because the Ismaels had requested it, but Sherzada and her supervisors failed to obtain it
for her. When Sherzada and/or her supervisors eventually authorized therapy services for
M.M., the provider placed her on a waiting list and did not see her before Mr. Ismael’s
abuse. M.M. asserts the abuse would not have occurred had she timely received therapy.
But M.M. also alleges that Sherzada and her supervisors were “aware that
according to policies and procedures, they were mandated under law to authorize any
therapy and or counseling.” Thus, according to M.M.’s own allegations, Sherzada and
her supervisors were not following any County policy, practice, or custom when they
failed to obtain therapy services for M.M. Rather, M.M. alleges that County policy
required Sherzada and her supervisors to authorize those services. In other words, the
TAC failed to allege that a County policy, practice, or custom caused M.M. not to receive
therapy in violation of her constitutional rights.
The TAC likewise fails to identify any applicable County policy, practice, or
custom that was the “moving force behind” the County’s alleged failure to protect M.M.
from the Ismaels. The thrust of M.M.’s failure-to-protect claim is that Sherzada placed
M.M. in the Ismaels’ home “knowing that they were not appropriate foster parents and
6
failed to appropriately monitor the placement,” which put M.M. at a substantial risk of
serious harm. But the claim does not allege Sherzada was following any specific County
policy, practice, or custom that caused her to knowingly place M.M. in a dangerous
home. The claim also does not allege any facts suggesting that Sherzada failed to
adequately monitor M.M.’s placement because she was following a County policy,
practice, or custom.
In fact, M.M. alleges that County regulations and its contract with Koinonia
mandated that Sherzada and her supervisors place M.M. in a safe foster home and
monitor her placement to ensure her safety and well-being. Moreover, the TAC’s
allegations also relate only to M.M.’s experience with Sherzada and her alleged failure to
protect M.M. and obtain medical care for her. Her alleged failures, without more, do not
reveal adherence to any policy, practice, custom of similar behavior. (See City of
Oklahoma City v. Tuttle (1985) 471 U.S. 808, 841-842 [“‘Proof of a single incident of
unconstitutional activity is not sufficient to impose liability under Monell, unless proof of
the incident includes proof that it was caused by an existing, unconstitutional municipal
policy, which policy can be attributed to a municipal policymaker.’”].)
In sum, M.M. failed to allege a valid Monell claim against the County. Because
M.M. does not attempt to explain in her opening brief how she could amend the TAC to
state a viable Monell claim, we conclude the trial court properly sustained the County’s
demurrer to M.M.’s claims against the County without leave to amend.
7
B. M.M.’s Section 1983 Claims Against Sherzada
In her first section 1983 claim against Sherzada, M.M. alleges that Sherzada
intentionally failed to obtain therapy services for her. She claims Sherzada knew therapy
was necessary to address M.M.’s behavioral and psychological issues and, without
therapy, she would be placed at a risk of harm from the Ismaels because they would
respond to her behavior in a harmful way. In her second section 1983 claim, M.M.
alleges that Sherzada knowingly placed her in the Ismaels’ inappropriate home and failed
to adequately monitor the placement. M.M. contends Sherzada’s failures violated her
federal constitutional rights.
As to M.M.’s first section 1983 claim, Sherzada demurred on the ground that the
claim fails to allege facts showing that she was deliberately indifferent to M.M.’s serious
medical needs. Sherzada also demurred to the claim on the ground that M.M. does not
identify a County policy Sherzada followed that caused her to ignore M.M.’s serious
medical needs. As to M.M’s second section 1983 claim, Sherzada argued she is
absolutely immune because the claim is based on her alleged failure to investigate her
suspicions that the Ismaels abused and did not properly care for M.M.
“‘Once the state assumes wardship of a child, the state owes the child, as part of
that person’s protected liberty interest, reasonable safety and minimally adequate care.’”
(Tamas v. Dept of Social and Health Services (9th Cir. 2010) 630 F.3d 833, 845
(Tamas).) A foster child’s due process rights therefore are violated when a state official
exhibits deliberate indifference to a child’s serious medical needs or fails to protect the
8
child from abuse in a foster home with deliberate indifference. (Henry A. v. Willden (9th
Cir. 2012) 678 F.3d 991, 1001 (Henry A.).)
“[T]he deliberate indifference standard, as applied to foster children, requires a
showing of an objectively substantial risk of harm and a showing that the [government]
official[] w[as] subjectively aware of facts from which an inference could be drawn that a
substantial risk of serious harm existed and that either the official actually drew that
inference or that a reasonable official would have been compelled to draw that
inference.” (Tamas, supra, 630 F.3d 833, 845.) “Deliberate indifference is a high legal
standard.” (Toguchi v. Chung (9th Cir. 2004) 391 F.3d 1051, 1060.) Even gross
negligence is insufficient to meet it. (L.W. v. Grubbs (9th Cir. 1996) 92 F.3d 894, 899.)
As for M.M.’s first section 1983 claim against Sherzada, we first reject Sherzada’s
argument that she is not liable for the claim because M.M. does not allege Sherzada was
following County policy when she allegedly ignored M.M.’s serious medical needs. A
section 1983 plaintiff must allege that a municipality’s policy, practice, or custom caused
a municipality’s employee to violate the plaintiff’s civil rights to bring a claim against the
municipality. (Monell, supra, 436 U.S. at p. 694.) But there is no such requirement to
bring a section 1983 claim against a municipality’s employee for alleged constitutional
violations. (See ibid.; Lockett v. County of Los Angeles (2020) 977 F.3d 737, 740.)
A foster child may bring a claim against his or her social worker under section
1983 if the social worker is deliberately indifferent to the child’s serious medical needs.
(Henry A., supra, 678 F.3d at p. 1001.) A delay in medical care caused by deliberate
9
indifference can support a section 1983 claim if the defendant knows that the delay
“would cause significant harm.” (Hallett v. Morgan (9th Cir. 2002) 296 F.3d 732, 746;
McGuckin v. Smith (9th Cir. 1991) 974 F.2d 1050, 1059, overruled on other grounds by
WMX Technologies, Inc. v. Miller (9th Cir. 1997) 104 F.3d 1133, 1136 (en banc).) It
follows that a social worker’s delay in procuring medical services for a foster child’s
serious medical needs may be actionable under section 1983 if the delay is a result of the
social worker’s deliberate indifference and the delay causes the child significant harm.
In her first section 1983 claim against Sherzada, M.M. alleges Sherzada knew that
M.M. had a serious medical need for therapy and could not safely live with the Ismaels
without it. Although M.M. alleges Sherzada intentionally did not immediately act on the
Ismaels’ requests that M.M. receive therapy services, she also alleges that Sherzada
eventually referred M.M. to therapy at some unidentified point. But, according to M.M.,
the provider placed her on a waiting list, so she did not receive the “immediate care” she
needed.
M.M.’s first section 1983 claim against Sherzada thus alleges that (1) M.M. had a
serious medical need for therapy to address her behavioral and psychological issues, (2)
Sherzada knew M.M. needed therapy, (3) she intentionally delayed referring M.M. to
therapy, (4) she knew that M.M. could not live safely with the Ismaels without receiving
therapy, and (5) she did not timely try to procure therapy services for M.M. Taken
together, M.M. alleges that Sherzada consciously ignored her immediate need for therapy
without justification and knew that doing so would place her at risk of harm from the
10
Ismaels. Liberally construing M.M.’s allegations, M.M. sufficiently states a cognizable
claim that Sherzada ignored her serious medical needs with deliberate indifference in
violation of her federal due process rights. The trial court erred in finding otherwise.
Sherzada contends M.M.’s serious medical needs claim nonetheless fails because
she does not allege that she had an immediate need for therapy services. Sherzada claims
that M.M. must allege such a need under Lucas v. County of Los Angeles (1996) 47
Cal.App.4th 277, to state a viable section 1983 claim.
Assuming Sherzada is correct, M.M. satisfied that burden. M.M. alleges that, for
about three months, Sherzada failed to respond to the Ismaels’ multiple requests that she
receive therapy service while she was placed with the Ismaels. M.M. alleges that
Sherzada became aware that M.M. “required medical services” to address her behavioral
and psychological issues “[s]hortly after” she was placed with the Ismaels. M.M. also
alleges Sherzada knew “[f]or months” that M.M. needed therapy services before
Sherzada made a therapy referral for her despite the Ismaels’ repeated requests. M.M.
thus plausibly alleged that she had a serious medical need for immediate therapy services.
As a result, we conclude M.M. alleged a viable section 1983 claim against Sherzada that
she acted with deliberate indifference to her serious medical needs in violation of her
federal due process rights. (See Henry A., supra, 678 F.3d at p. 1001.)
11
3
Sherzada argues the claim still fails, as does M.M.’s second section 1983 claim,
because she is absolutely immune from suit under section 1983. To support her position,
Sherzada relies on Jenkins v. County of Orange (1989) 212 Cal.App.3d 278 (Jenkins) and
Alicia T. v. County of Los Angeles (1990) 222 Cal.App.3d 869 (Alicia T.). Neither case
helps Sherzada.
In Jenkins, relatives of a child alleged that a county social worker insufficiently
investigated unfounded reports that the child was being abused, removed the child based
on those reports without a court order, failed to consider all relevant evidence, and made
intentional misrepresentations to the juvenile court when justifying the child’s removal.
(Jenkins, supra, 212 Cal.App.3d at pp. 281-282, 286.) The relatives sued the social
worker for various claims, including for claims under section 1983. (Id. at pp. 286.) The
Jenkins court held the social worker was absolutely immune from the claims because
they were based on the social worker’s “‘quasi-prosecutorial’” functions of investigating
abuse, removing a child based on that investigation, and presenting evidence to the
juvenile court. (Id. at pp. 286-287.)
In Alicia T., parents of a minor child sued county social workers under section
1983 after the social workers initiated dependency proceedings. (Alicia T., supra, 222
Cal.App.3d at pp. 874-875.) The Alicia T. court agreed with Jenkins and held the social
workers were “absolutely immune” from the parents’ section 1983 claims “alleging the
3
The County argued in its demurrer and in its respondent’s brief that M.M.’s
second section 1983 claim against Sherzada fails only because Sherzada is absolutely
immune from the claim.
12
improper investigation of child abuse, removal of a minor from the parental home based
upon suspicion of abuse and the instigation of dependency proceedings.” (Id. at p. 881.)
Jenkins and Alicia T. largely do not apply here. In both cases, the social workers
were sued in part for their removing children and their involvement with juvenile court
proceedings. Social workers generally are immune from claims based on those actions.
(See Caldwell v. LeFaver (9th Cir. 1991) 928 F.2d 331, 333; Tamas, supra, 630 F.3d at p.
842.)
But Sherzada contends Jenkins and Alicia T. also hold that social workers are
absolutely immune from section 1983 claims, like M.M.’s, that allege a social worker did
not investigate suspected abuse of a foster child, did not adequately supervise a foster
child’s placement, and/or did not remove the foster child from an abusive foster home.
To the extent that Jenkins and Alicia T. so hold, we conclude they do not accurately
reflect the law and so we decline to follow them.
Immunity from section 1983 claims is governed by federal law. (Newton v.
County of Napa (1990) 217 Cal.App.3d 1551, 1562; Martinez v. California (1980) 444
U.S. 277, 284.) Since Jenkins and Alicia were decided over 30 years ago, federal courts
have consistently held that social workers enjoy absolute immunity from section 1983
claims only “when they are performing quasi-prosecutorial and quasi-judicial functions.”
(Tamas, supra, 630 F.3d at p. 842.) These are actions “where a social worker contributes
as an advocate to an informed judgment by an impartial decisionmaker.” (Caldwell v.
LeFaver (9th Cir. 1991) 928 F.2d 331, 333.) Put another way, “social workers are
13
absolutely immune only when they are acting in their capacity as legal advocates—
initiating court actions or testifying under oath—not when they are performing
administrative, investigative, or other functions.” (Holloway v. Brush (6th Cir. 2000) 220
F.3d 767, 775 (en banc).)
Thus, “[t]he factor that determines whether absolute immunity covers a social
worker’s activity or ‘function’ under scrutiny is whether it was investigative or
administrative, on one hand, or part and parcel of presenting the state’s case as a generic
advocate on the other. Absolute immunity is available only if the function falls into the
latter category.” (Hardwick v. County of Orange (9th Cir. 2017) 844 F.3d 1112, 1115,
italics added.) For that reason, “the scope of absolute immunity for social workers is
extremely narrow.” (Miller v. Gammie (9th Cir. 2003) 335 F.3d 889, 898.)
As M.M. correctly observes, “social workers are not afforded absolute immunity
for their investigatory conduct, discretionary decisions or recommendations.” (Tamas,
supra, 630 F.3d at p. 842.) For instance, social workers are not absolutely immune from
section 1983 claims arising from their “decisions and recommendations as to the
particular home where a child is to go or as to the particular foster parents who are to
provide care.” (Miller v. Gammie, supra, 335 F.3d a p. 898.) They are likewise not
absolutely immune for investigating whether a child should be removed (Vosburg v.
Department of Social Services (4th Cir. 1989) 884 F.2d 133, 138), or for failing to
remove a foster child from a foster parent’s unsafe home. (Tamas, supra, at p. 842.)
14
M.M.’s failure-to-protect claim is not based on Sherzada’s “quasi-prosecutorial”
functions that could entitle her to absolute immunity. (See Kovacic v. Cuyahoga County
Dept. of Children and Family Services (6th Cir. 2013) 724 F.3d 687, 694 [“[S]ocial
workers are entitled to absolute immunity when they engage in conduct ‘intimately
associated with the judicial phase of the criminal process.’ [Citation.]”]; Vosburg v.
Department of Social Services, supra, 884 F.2d at pp. 137-138 [social workers were
absolutely immune from section 1983 claims arising from their filing of a removal
petition because they “were acting in a prosecutorial . . . capacity”].) Instead, it is based
entirely on Sherzada’s alleged inappropriate placement of M.M. with the Ismaels, her
alleged failure to investigate suspicions that the Ismaels were abusing M.M., and her
alleged failure to remove M.M. from their home. All of these alleged actions are
discretionary decisions that are not entitled to absolute immunity. (See Miller v.
Gammie, supra, 335 F.3d at p. 898; Hardwick v. County of Orange, supra, 844 F.3d at p.
1115; Tamas, supra, 630 F.3d at p. 842.)
We therefore reject Sherzada’s argument that that she is absolutely immune from
M.M.’s second section 1983 claim. Because that is the only basis for her demurrer to the
claim, we conclude the trial court erred in sustaining the demurrer without leave to
amend. We therefore reverse the trial court’s judgment sustaining Sherzada’s demurrers
to M.M.’s section 1983 claims.
15
C. M.M.’s Claims Against Koinonia
M.M. contends the trial court erroneously sustained Koinonia’s demurrer to her
section 1983 claim against Koinonia without leave to amend and erroneously granted its
motion for summary judgment on her negligence claims. We find no error.
We first reject Koinonia’s argument that we lack jurisdiction to consider the trial
court’s order on Koinonia’s demurrer because it is a non-appealable order. (See O’Grady
v. Merchant Exchange Productions, Inc. (2019) 41 Cal.App.5th 771, 776 fn. 3 [order
sustaining demurrer to one cause of action without leave to amend “is not itself
appealable [citation], but it may be reviewed on appeal from an ensuing judgment or
order of dismissal.”]; see also Gavin W. v. YMCA Metropolitan Los Angeles (2003) 106
Cal.App.4th 662, 669 [appeal from judgment encompassed nonappealable order not
identified in notice of appeal].)
We also reject Koinonia’s argument that M.M. forfeited her arguments on appeal
by failing to appropriately cite the record. Koinonia is correct that M.M. at times
inappropriately cites the parties’ separate statements, which are not evidence. (Jackson v.
County of Los Angeles (1997) 60 Cal.App.4th 171, 178, fn. 4.) But M.M. cites the record
sufficiently elsewhere in her opening brief to avoid forfeiting her arguments. We
therefore address M.M.’s claims on the merits.
16
1. Section 1983 Claim
M.M. asserts one section 1983 claim against Koinonia in the SAC.
She alleges Koinonia contracts with the County to provide foster care services for the
County’s dependent minors and receives County funds for those services. M.M. asserts
Koinonia is subject to various County and state regulations and must receive County
approval to provide certain services to its clients, such as mental health services. Because
of its contractual obligations to the County, M.M. contends that Koinonia is under “close
scrutiny by the County.”
Koinonia demurred to the claim on the ground that the SAC failed to allege facts
showing that Koinonia acted as a state actor. We agree and thus conclude the trial court
properly sustained Koinonia’s demurrer without leave to amend.
“To state a claim under [section] 1983, the plaintiff must allege a violation of his
constitutional rights and show that the defendant’s actions were taken under color of state
law.” (Gritchen v. Collier (9th Cir. 2001) 254 F.3d 807, 812.) A defendant acts “under
color of law” by exercising “power ‘possessed by virtue of state law and made possible
only because the wrongdoer is clothed with the authority of state law.’” (West v. Atkins,
487 U.S. 42, 49.) “Action under color of state law normally consists of action taken by a
public agency or officer.” (Taylor v. First Wyo. Bank, N.A. (9th Cir. 1983) 707 F.2d 388,
389.)
But under certain circumstances, a private entity like Koinonia may be liable
under section 1983 as a “state actor.” (Franklin v. Fox (9th Cir. 2002) 312 F.3d 423,
17
441.) “The Supreme Court has developed four different tests that ‘aid us in identifying
state action: “(1) public function; (2) joint action; (3) governmental compulsion or
coercion; and (4) governmental nexus.”’” (Pasadena Republican Club v. Western Justice
Center (9th Cir. 2012) 985 F.3d 1161, 1167.)
The SAC does not clearly identify which test M.M. relies on to support her
contention that Koinonia acted as a state actor, but it alleges that Koinonia “participates
in a joint action with” the County and “fulfills a public function.” In her opposition to
Koinonia’s demurrer, M.M. confirmed that she contends Koinonia is a state actor under
the public function and joint action tests. M.M. takes the same position in her opening
brief, and counsel did not suggest at oral argument that Koinonia was a state actor under
another test. We therefore address only whether the SAC alleges sufficient facts that
Koinonia’s conduct qualifies as state action under the public function and joint action
tests.
“Under the public function test, ‘when private individuals or groups are endowed
by the State with powers or functions governmental in nature, they become agencies or
instrumentalities of the State and subject to its constitutional limitations.’” (Lee v. Katz
(9th Cir. 2002) 276 F.3d 550, 554-555.) This occurs only when the private actor is
engaged in a function that is “both traditionally and exclusively governmental.” (Id. at p.
555, italics added.) The public function test is thus rarely satisfied because “[w]hile
many functions have been traditionally performed by governments, very few have been
18
‘exclusively reserved to the State.’” (Flagg Brothers Inc. v. Lefkowitz (1978) 436 U.S.
149, 158.)
As many courts have recognized, providing foster care services is not an exclusive
governmental function throughout the states. (See e.g., Leshko v. Servis (3d Cir. 2005),
423 F.3d 337, 343-344; Rayburn v. Hogue (11th Cir. 2001) 241 F.3d 1341, 1347;
Milburn v. Anne Arundel County Department of Social Servs. (4th Cir. 1989) 871 F.2d
474, 479); Malachowski v. Keene (1st Cir. 1986) 787 F.2d 704, 711.) California is no
different. (See Ismael v. County of Orange (9th Cir. 2017) 693 Fed.Appx. 507, 512
(unpublished) [holding California foster parents were not state actors].) In fact,
California law provides that private entities and individuals may provide foster care
services. (See Welf. & Inst. Code, § 361.2, subd. (a).) Because Koinonia was not
engaging in an “exclusively governmental” function when providing M.M. foster care
services, it was not acting as a state actor under the public function test.
Nor does the SAC adequately allege that Koinonia was a state actor under the joint
action test. “A private party is liable under this theory . . . only if its particular actions are
‘inextricably intertwined’ with those of the government.” (Brunette v. Humane Society of
Ventura County (9th Cir. 2002) 294 F.3d 1205, 1211.) To be liable for a section 1983
claim under the joint action test, the state must “knowingly accept[] the benefits derived
from unconstitutional behavior.” (Parks Sch. of Business Inc. v. Symington (9th Cir.
1995) 51 F.3d 1480, 1486.) “A plaintiff may demonstrate joint action by proving the
existence of a conspiracy or by showing that the private party was ‘a willful participant in
19
joint action with the State or its agents.’” (Franklin v. Fox, supra, 312 F.3d at p. 445.)
The plaintiff thus must show that “‘state officials and private parties have acted in concert
in effecting a particular deprivation of constitutional rights.’” (Ibid.) However, the
“most salient” factor for the joint action test is “the extent to which the private entity is
(or is not) independent in the conduct of its day-to-day affairs.” (Perkins v. Londonderry
Basketball Club (1st Cir.1999) 196 F.3d 13, 21.)
The SAC does not allege facts suggesting “a substantial degree of cooperative
action” between Koinonia and the County. (Collins v. Womancare (9th Cir. 1989) 878
F.2d 1145, 1154.) M.M. does not allege that Koinonia’s alleged conduct was
“inextricably intertwined” with the County’s conduct. The SAC likewise does not allege
that Koinonia and the County “acted in concert in effecting a particular deprivation of
[her] constitutional rights” as co-conspirators. (Gallagher v. Neil Young Freedom
Concert (10th Cir.1995) 49 F.3d 1442, 1453; see also Franklin v. Fox, supra, 312 F.3d at
p. 445.) Critically, there are no allegations that the County knowingly benefited in any
way from Koinonia’s allegedly unconstitutional conduct. (See Burton v. Wilmington
Parking Authority (1961) 365 U.S. 715, 725 [no state action under joint action test unless
state “knowingly accepts the benefits derived from unconstitutional behavior”]; Naoko
Ohno v. Yuko Yasuma (9th Cir. 2013) 723 F.3d 984, 997 [no state action because no
evidence that the government “in any meaningful way accepts benefits derived from the
allegedly unconstitutional actions”].) Nor are there any allegations that Koinonia lacked
20
independence from the County in managing its “day-to-day affairs.” (Perkins v.
Londonderry Basketball Club, supra, 196 F.3d at p. 21.)
Instead, M.M. alleges only that Koinonia is regulated by the County, contracts
with the County, receives County funds for its services, must obtain County approval to
provide mental health services, and jointly certifies foster homes and places foster
children with the County. These allegations, taken individually or collectively, do not
constitute “joint action” for section 1983 purposes. (See Jackson v. Metro. Edison Co.
(1974) 419 U.S. 345, 350 [“The mere fact that a business is subject to state regulation
does not by itself convert its action into that of the state”]; Burton v. William Parking
Authority, supra, 365 U.S. at p. 843 [private entity is not state actor because of its “fiscal
relationship with the State”]; Blum v. Yaretsky (1982) 457 U.S. 991, 1011 [“substantial”
public funding of private entity did not convert it to state actor].)
M.M. argues otherwise, contending that Koinonia and the County were in a
“symbiotic relationship.” To support her position, she relies on two inapplicable cases.
In Rendell-Baker v. Kohn (1982) 457 U.S. 830, the Court held that a private, nonprofit
school did not act as a state actor when it fired a counselor even though it was heavily
regulated by the state and received nearly all of its funding from public sources.
Similarly, the Court in Blum v. Yaretsky, supra, 457 U.S. 991 held that a nursing home
was not a state actor when it allegedly violated Medicaid patients’ constitutional rights
even though the state heavily subsidized the nursing home, regulated its licensing, and
paid for 90 percent of the patients’ costs. Rendell-Baker v. Kohn and Blum thus do not
21
support M.M.’s position that she sufficiently alleged that Koinonia was a state actor
under the joint action test.
In sum, the SAC does not allege facts suggesting that Koinonia was a state actor
because M.M. does not allege that (1) Koinonia acted jointly with the County in a way
that Koinonia’s allegedly unconstitutional behavior generated benefits for the County or
that (2) Koinonia and the County had common goal of violating M.M.’s constitutional
rights. The trial court therefore properly sustained Koinonia’s demurrer to M.M.’s
section 1983 claim. Because M.M. does not explain how she could amend the SAC to
state a viable section 1983 claim against Koinonia, we conclude the trial court properly
4
sustained the demurrer without leave to amend.
2. Negligence Claims
In the TAC, M.M. asserts two negligence claims against Koinonia. In the first,
M.M. alleges that Koinonia negligently placed her with the Ismaels, negligently
monitored her placement, and negligently supervised the Ismaels. M.M. contends that
Mr. Ismael’s abuse was caused by Koinonia’s breach of the duty it owed her. In her
second negligence claim, M.M. alleges Koinonia violated its duty as a mandated reporter
under Penal Code section 11164 to report the Ismaels’ suspected abuse of M.M.
“A party moving for summary judgment bears the burden of persuasion there is no
triable issue of material fact and is entitled to judgment as a matter of law. A defendant
4
At oral argument, M.M.’s counsel conceded that he had “given it his best shot”
at alleging facts to support M.M.’s claims and did not seek further leave to amend.
22
satisfies this burden by showing one or more elements of the cause of action in question
cannot be established or there is a complete defense to that cause of action. If the
defendant meets this initial burden, the opposing party must then make a prima facie
showing of the existence of a triable issue of material fact. [Citation.] [¶] We review the
denial of a motion for summary judgment de novo. [Citation.] We strictly construe the
moving party’s affidavits and liberally construe the opposing party’s affidavits. We
accept as undisputed facts only those portions of the moving party’s evidence that are not
contradicted by the opposing party’s evidence. (City of San Diego v. Superior Court
(2006) 137 Cal.App.4th 21, 25.) Thus, “[w]hen deciding whether to grant summary
judgment, the court must consider all of the evidence set forth in the papers (except
evidence to which the court has sustained an objection), as well as all reasonable
inferences that may be drawn from that evidence, in the light most favorable to the party
opposing summary judgment.” (Avivi v. Centro Medico Urgente Medical Center (2008)
159 Cal.App.4th 463, 467.)
As for M.M.’s second negligence claim, she provides no argument in her opening
brief explaining why the trial court erroneously granted Koinonia summary judgment on
the claim. She only states that the claim alleged that Koinonia violated its duty to report
suspected child abuse under Penal Code section 11164. We therefore conclude M.M.
forfeited any argument that the trial court improperly granted Koinonia summary
judgment on the claim. (See Bianco v. California Highway Patrol (1994) 24 Cal.App.4th
1113, 1125 [appellant must affirmatively show the trial court prejudicially erred]; Badie
23
v. Bank of America (1998) 67 Cal.App.4th 779, 784-785 [appellant forfeits argument
made without analysis or authority].)
As for M.M.’s first negligence claim, she argued in her opposition to Koinonia’s
motion for summary judgment that the Ismaels were Koinonia’s employees and that
Koinonia negligently hired them. She therefore claimed that Koinonia was liable for the
Ismaels’ conduct under theories of vicarious liability and respondeat superior. The trial
court declined to address the issues because they were “beyond the allegations pled.”
“[A] summary judgment motion is directed to the issues framed by the pleadings.
[Citations.] Those are the only issues a motion for summary judgment must address.
[Citations.]” (Hilton K. v. Greenbaum (2006) 144 Cal.App.4th 1406, 1412.) We agree
with the trial court that M.M. does not assert anywhere in the TAC that Koinonia is liable
under theories of vicarious liability or respondeat superior. In her opening brief, M.M.
does not address this aspect of the trial court’s ruling, and does not point to anything in
the TAC that suggests she alleged either theory of liability. We therefore conclude the
trial court properly declined to address M.M.’s arguments, made for the first time in her
opposition to Koinonia’s summary judgment motion, that Koinonia is liable for
negligence under vicarious liability or respondeat superior theories of negligence. We
thus do not address M.M.’s argument that genuine issues of material fact exist as to
whether the Ismaels were Koinonia’s employees and whether Koinonia negligently hired
them.
24
To succeed on a negligence claim, the plaintiff must prove that (1) the defendant
owed her a duty, (2) the defendant breached that duty, and (3) the breach proximately
caused her to suffer damages. (Doe v. United States Youth Soccer Association, Inc.
(2017) 8 Cal.App.5th 1118, 1128.) M.M. asserts Koinonia owed her a duty to protect her
from Mr. Ismael’s abuse, it failed to do so, and its failure proximately caused the
damages she suffered from the abuse.
In general, “there is no duty to act to protect others from the conduct of third
parties.” (Melton v. Boustred (2010) 183 Cal.App.4th 521, 531.) An exception to this
rule, which the parties agree applies here, is when there is a “special relationship”
between the parties. (Ibid.) But “even when a defendant has formed a special
relationship with a plaintiff, courts uniformly hold that the defendant has no duty to
protect the plaintiff from unforeseeable third-party criminal conduct.” (J.L. v. Children’s
Institute, Inc. (2009) 177 Cal.App.4th 388, 396 (J.L.).) Whether a third party’s criminal
conduct is foreseeable may be decided as a matter of law and is “measured by what the
defendant actually knew” about the third party. (Margaret W. v. Kelley R. (2006) 139
Cal.App.4th 141, 156 (Margaret W.), italics added.)
For instance, the defendant in J.L., a family childcare services corporation, was
not liable for the sexual assault the minor plaintiff suffered in a daycare home that the
defendant recommended. (J.L., supra, 177 Cal.App.4th at p. 391.) The J.L. court held
the assault was not reasonably foreseeable because there was no evidence the assailant
had a history of sexual misconduct or that “any type of criminal or violent” activity had
25
ever occurred in the daycare home. (Id. at p. 398.) The defendant therefore did not
breach any duty to the plaintiff because there was no evidence the defendant “had actual
knowledge of [the assailant’s] assaultive tendencies or that he posed any risk of harm.”
(Ibid.)
Romero v. Superior Court (2009) 89 Cal.App.4th 1068 (Romero) involved similar
facts. There, the defendants hosted their child’s teenage friends at their home, and one of
the teenagers sexually assaulted the plaintiff while the defendants were picking up food.
(Id. at pp. 1073-1075.) The Romero court held the defendants had no duty to protect the
plaintiff from the assault because there was no evidence that the defendants “had prior
actual knowledge, and thus must have known, of the offender’s assaultive propensities.”
(Id. at p. 1084.)
The defendant in Margaret W. likewise was not liable for plaintiff’s rape.
(Margaret W., supra, 139 Cal.App.4th at p. 145.) The defendant there had a special
relationship with the teenage plaintiff because she allowed the plaintiff to sleepover at her
house. (Id. at pp. 145, 152.) Unknown to the defendant, the plaintiff left the house in the
middle of the night with some boys, who later raped her. (Ibid.) The court noted that in
determining the defendant’s “liability for the criminal conduct of a third party . . .
foreseeability is the crucial factor,” and held her “liability [was] governed by what she
should have known rather than what she actually knew.” (Id. at pp. 156-157.) The
Margaret W. court held the defendant had no duty to protect the plaintiff from the boys
because the defendant did not know the boys would rape her. (Id. at pp. 157-158.) In
26
reaching this conclusion, the court rejected the plaintiff’s arguments that the defendant
owed her a “duty to investigate” and to make “forecasts based on the information such an
investigation might have revealed.” (Id. at pp. 156-157.)
J.L., Romero, and Margaret W. thus show that Koinonia is liable for Mr. Ismael’s
abuse of M.M. only if it knew of his violent tendencies. The undisputed evidence
demonstrates that Koinonia had no such knowledge.
Neither Mr. nor Mrs. Ismael had a criminal record before their arrests. Both of
them cleared multiple background checks. Koinonia policy required them to agree not to
use corporal punishment and to report child abuse. Koinonia routinely visited the
Ismaels’ home and spoke with M.M. and her siblings during her months-long placement.
Neither M.M. nor her siblings reported any concerns that suggested the Ismaels might
abuse them. Koinonia’s social workers thus had no suspicions that Mr. Ismael would
abuse M.M. M.M. offers no evidence to undermine Koinonia’s position that it was
entirely unaware that Mr. Ismael had violent tendencies and was likely to assault M.M.
On this record, we conclude Mr. Ismael’s criminal conduct toward M.M. was not
foreseeable because there is no evidence that Koinonia “had prior actual knowledge, and
thus must have known, of [Mr. Ismael’s] assaultive propensities.” (Romero, supra, 89
Cal.App.4th at p. 1084.) As a result, Koinonia did not breach any duty it owed M.M.
The trial court therefore properly granted Koinonia’s motion for summary judgment on
M.M.’s first negligence claim.
27
IV.
DISPOSITION
The judgment for Sherzada is reversed, but the judgments for the County and
Koinonia are affirmed. The parties shall bear their own costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J.
We concur:
MILLER
Acting P. J.
SLOUGH
J.
28