                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            APR 18 2016
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


MANUEL A. RAMIREZ, individually and              No. 14-55439
as Guardian ad Litem for ENRIQUE
RAMIREZ CANO,                                    D.C. No. 3:11-cv-01823-DMS-
                                                 BGS
              Plaintiff - Appellee,

 v.                                              MEMORANDUM*

ESCONDIDO UNION SCHOOL
DISTRICT, AKA Escondido Unified
School District; et al.,

              Defendants - Appellants.



MANUEL A. RAMIREZ, individually and              No. 14-55472
as Guardian ad Litem for ENRIQUE
RAMIREZ CANO,                                    D.C. No. 3:11-cv-01823-DMS-
                                                 BGS
              Plaintiff - Appellant,

 v.

ESCONDIDO UNION SCHOOL
DISTRICT, AKA Escondido Unified
School District; et al.,

              Defendants - Appellees.

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                    Appeal from the United States District Court
                       for the Southern District of California
                     Dana M. Sabraw, District Judge, Presiding

                       Argued and Submitted March 10, 2016
                               Pasadena, California

Before: MURPHY,** PAEZ, and NGUYEN, Circuit Judges.

      Escondido Union School District and the individual Defendants appeal the

district court’s partial denial of their post-trial motions for judgment as a matter of

law and for a new trial. On cross-appeal, Plaintiffs Manuel A. Ramirez and his

minor son, Enrique C., challenge the district court’s dismissal of their intentional

infliction of emotional distress claim. We review the district court’s post-trial

rulings de novo, and will uphold a jury’s verdict if supported by substantial

evidence. See A.D. v. Cal. Highway Patrol, 712 F.3d 446, 452-53 (9th Cir. 2013);

Johnson v. Paradise Valley Unified Sch. Dist., 251 F.3d 1222, 1227-28 (9th Cir.

2001). We affirm in part, reverse in part, and remand.

      In December of 2010, staff at Farr Elementary School released Enrique to

Alejandro Rodriguez Ramos after Enrique’s mother called the school to authorize

the release. Ramos then took Enrique to Mexico to live with his mother, who had



       **
            The Honorable Michael R. Murphy, Senior Circuit Judge for the U.S.
Court of Appeals for the Tenth Circuit, sitting by designation.

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been deported. Enrique’s father, Ramirez, sued Defendants for violating his

substantive due process rights, negligence, and intentional infliction of emotional

distress. The jury found in favor of Ramirez on all claims.

      Defendants argue that the district court erred in denying qualified immunity

as to Plaintiffs’ 42 U.S.C. § 1983 claim. We agree. The doctrine of qualified

immunity protects government officials “from liability for civil damages insofar as

their conduct does not violate clearly established statutory or constitutional rights

of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S.

800, 818 (1982). A grant of qualified immunity is appropriate where either 1) the

facts that a plaintiff has shown do not make out a violation of a constitutional right

or 2) the right at issue was not clearly established at the time of defendant’s alleged

misconduct. Pearson v. Callahan, 555 U.S. 223, 232 (2009). Whether the law

placed a state actor on reasonable notice that her conduct would violate the

Constitution must be determined “in light of the specific context of the case, not as

a broad general proposition.” Jones v. Cty. of Los Angeles, 802 F.3d 990, 1004

(9th Cir. 2015).

      We need not decide whether the evidence presented by Plaintiffs made out a

constitutional violation because even assuming that it does, the right at issue was

not clearly established at the time of Defendants’ conduct. The district court relied


                                           3
on Burke v. County of Alameda, 586 F.3d 725 (9th Cir. 2009) and James v.

Rowlands, 606 F.3d 646 (9th Cir. 2010). Those cases, however, deal with limits

on government officials’ attempts to place minors in protective custody, a wholly

different context from the one at bar. Burke, 586 F.3d at 731-32 (discussing the

limits on government officials’ ability to take custody of children in imminent

danger); James, 606 F.3d at 654 (finding parent must be notified when officials

encourage and facilitate the transfer of a minor’s custody). Unlike in Burke and

James, Defendants here did not purposefully execute a transfer of custody, which

was in effect facilitated by the wrongful conduct of a third party. The school

district’s policy regarding emergency cards does not speak to the government-

initiated transfer of custody between parents and thus is unrelated to the rights at

issue in Burke and James. In light of the Supreme Court’s direction “not to define

clearly established law at a high level of generality,” we hold that Burke and James

did not place Defendants on notice that their actions violated Plaintiffs’

constitutional rights. Ashcroft v. al-Kidd, 563 U.S. 731, 131 S. Ct. 2074, 2084

(2011). We therefore conclude that qualified immunity bars Plaintiffs’

constitutional claims and all damages resulting therefrom.

      We recognize that the jury’s differing damage awards were inconsistent

because each compensated Plaintiff Ramirez for the same harm. However, the


                                           4
district court determined that the $2 million damages award for negligence was

supported by substantial evidence presented to the jury. El-Hakem v. BJY Inc., 415

F.3d 1068, 1075 (9th Cir. 2005). Defendants do not challenge that finding on

appeal, and have not requested a retrial on damages. See Gallick v. Baltimore &

O.R.R. Co., 372 U.S. 108, 119-20. Instead, Defendants argue, without any

supporting authority, that they are entitled to the lower amount. Because we

reverse as to Plaintiffs’ § 1983 claim, Defendants’ argument that they are entitled

to the § 1983 damages award is moot.

      We affirm the remainder of the district court’s post-trial rulings. The jury’s

finding that Defendants were negligent is supported by substantial evidence. See

Phyllis P. v. Superior Court, 183 Cal. App. 3d 1193 (1986). We cannot say that as

a matter of law Defendants did not owe Ramirez a duty of care in light of the fact

that Defendants were on notice that Enrique’s mother had been removed to Mexico

and Ramirez requested to be contacted about matters regarding Enrique. Further,

the district court did not abuse its discretion by omitting a jury instruction on

superceding, intervening cause since the jury found that the school’s negligence

proximately caused the tortious result. See Kahn v. E. Side Union High Sch. Dist.,

75 P.3d 30, 47 (2003) (holding that for an intervening act properly to be considered




                                           5
a superseding cause, “the act must have produced harm of a kind and degree far

beyond the risk that the original tortfeasor should have foreseen”).

      Finally, the district court properly dismissed Plaintiff Ramirez's intentional

infliction of emotional distress claim because he only advanced a reckless

disregard theory but failed to establish that he was present at the time of the

misconduct. See Christensen v. Superior Court, 820 P.2d 181, 201-02 (Cal. 1991).

      AFFIRMED in part, REVERSED and REMANDED in part.

      Each side shall bear its own costs on appeal.




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