                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JUN 23 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

OLGA C.,                                        No.    15-17044

                Plaintiff-Appellant,            D.C. No. 5:15-cv-01691-EJD

 v.
                                                MEMORANDUM*
COUNTY OF SANTA CLARA; SANTA
CLARA COUNTY SOCIAL SERVICES
AGENCY; DEPARTMENT OF FAMILY
AND CHILDREN SERVICES; JANET
CAUDILLO, erroneously sued as Janet
Trujillo; individually and as an employee of
the County of Santa Clara; DARLENE
SANDOVAL, individually and as an
employee of the County of Santa Clara;
DOES, 1-20, inclusive,

                Defendants-Appellees.


OLGA C.,                                        No.    15-17061

                Plaintiff-Appellee,             D.C. No. 5:15-cv-01691-EJD

 v.

COUNTY OF SANTA CLARA; SANTA
CLARA COUNTY SOCIAL SERVICES
AGENCY; DEPARTMENT OF FAMILY
AND CHILDREN SERVICES; JANET

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
CAUDILLO, erroneously sued as Janet
Trujillo; individually and as an employee of
the County of Santa Clara; DARLENE
SANDOVAL, individually and as an
employee of the County of Santa Clara,

                Defendants-Appellants,

and

DOES, 1-20, inclusive,

                Defendant.

                   Appeal from the United States District Court
                     for the Northern District of California
                   Edward J. Davila, District Judge, Presiding

                             Submitted May 19, 2017**
                             San Francisco, California

Before: TALLMAN and IKUTA, Circuit Judges, and OLIVER,*** Chief District
Judge.

      Plaintiff appeals the district court’s judgment dismissing her 42 U.S.C.

§ 1983 and Monell claims under the Rooker–Feldman doctrine and remanding her

state law claims to the Santa Clara County Superior Court. We have jurisdiction

under 28 U.S.C. § 1291, see Laub v. U.S. Dep’t of Interior, 342 F.3d 1080, 1085



      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
             The Honorable Solomon Oliver, Jr., Chief United States District
Judge for the Northern District of Ohio, sitting by designation.

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(9th Cir. 2003), and we vacate the district court’s order dismissing Plaintiff’s

federal claims without leave to amend, remand with instructions to dismiss those

claims with leave to amend, and also reverse the order remanding Plaintiff’s state

law claims.

      We review de novo a district court’s dismissal under the Rooker–Feldman

doctrine, Kougasian v. TMSL, Inc., 359 F.3d 1136, 1139 (9th Cir. 2004), and its

grant of a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), Ebner

v. Fresh, Inc., 838 F.3d 958, 962 (9th Cir. 2016). Where the district court denies

leave to amend because amendment would be futile, we will affirm only if it is

clear upon de novo review that the complaint cannot be saved by any amendment.

Leadsinger, Inc. v. BMG Music Publ’g, 512 F.3d 522, 532 (9th Cir. 2008).

Amendment would not be futile in this instance.

      1. We vacate the district court’s dismissal of Plaintiff’s § 1983 and Monell

claims for lack of subject matter jurisdiction under the Rooker–Feldman doctrine.

Where “a federal plaintiff asserts as a legal wrong an allegedly illegal act or

omission by an adverse party, Rooker–Feldman does not bar jurisdiction.” Noel v.

Hall, 341 F.3d 1148, 1164 (9th Cir. 2003). Here, Plaintiff’s federal claims were

based on Defendants’ alleged extrinsic fraud on the Santa Clara County Juvenile

Court in connection with dependency proceedings. “A plaintiff alleging extrinsic

fraud on a state court is not alleging a legal error by the state court; rather, he or


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she is alleging a wrongful act by the adverse party.” Kougasian, 359 F.3d at 1140–

41. Thus, Rooker–Feldman did not bar jurisdiction over Plaintiff’s federal claims.1

      2. Plaintiff failed to state sufficient facts to allege plausible § 1983 and

Monell claims against Defendants. She failed to identify the specific false or

fabricated evidence that Defendant Caudillo allegedly submitted to the juvenile

court. She also did not allege that Defendant Sandoval personally participated in

her children’s removal. See Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002).

And she failed to plead facts plausibly suggesting that Caudillo and Sandoval’s

actions were a product of official county policy. See Connick v. Thompson, 563

U.S. 51, 60–61 (2011). Lastly, Plaintiff does not have standing to assert any

constitutional claims based on the harm that her daughter allegedly suffered as a

result of her placement in foster care. See Valley Forge Christian Coll. v. Ams.

United for Sep. of Church & State, Inc., 454 U.S. 464, 474 (1982). However,

because Plaintiff’s federal claims may be saved by amendment, we remand to the

district court with instructions to dismiss those claims with leave to amend to plead

plausible facts in support of her theory of extrinsic fraud.

      3. We do not address the Defendants’ affirmative defense of collateral

estoppel. “Failure to [raise] an affirmative defense below results in waiver, and the


1
     Because Plaintiff did not bring a de facto appeal, “there are no issues with
which the issues in her federal claims are ‘inextricably intertwined’ within the
meaning of Rooker–Feldman.” Kougasian, 359 F.3d at 1143.

                                           4
issue cannot be raised for the first time on appeal.” Kelson v. City of Springfield,

767 F.2d 651, 657 (9th Cir. 1985). Nevertheless, if on remand to the district court,

Defendants are allowed to assert the defense in response to an amended complaint,

the district court may decide the issue on a far more developed factual record,

including that of the juvenile court proceedings, than the one presently before us.

See Kougasian, 359 F.3d at 1143–44.

         4. Absolute immunity will not bar a plausible § 1983 claim against Caudillo

or Sandoval based on their alleged extrinsic fraud in the state dependency

proceedings because social workers “are not entitled to absolute immunity from

claims that they fabricated evidence during an investigation or made false

statements in a dependency petition affidavit that they signed under penalty of

perjury.” Beltran v. Santa Clara County, 514 F.3d 906, 908 (9th Cir. 2008) (en

banc).

         5. Because Rooker–Feldman did not deprive the district court of subject

matter jurisdiction over Plaintiff’s federal claims, see 28 U.S.C. §§ 1331, 1343, the

court may well have had supplemental jurisdiction over Plaintiff’s state law claims.

Id. § 1367(a). We thus reverse the district court’s order remanding Plaintiff’s state

law claims to the Santa Clara County Superior Court.

         Each party shall bear its own costs on appeal.

         VACATED, REVERSED, AND REMANDED with instructions.


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