                                                                              FILED
                            NOT FOR PUBLICATION                                JUN 17 2015

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


LEANNA SMITH, individual and as the              No. 13-15413
mother of CR, a minor,
                                                 D.C. No. 2:10-cv-01632-FJM
              Plaintiff - Appellant,

  v.                                             MEMORANDUM*

BANNER HEALTH SYSTEMS, a foreign
nonprofit corporation, DBA Banner Desert
Medical Center; et al.,

              Defendants - Appellees.



LEANNA SMITH, individual and as the             No. 13-16422
mother of CR, a minor,
                                                D.C. No. 2:10-cv-01632-FJM
              Plaintiff - Appellant,

KEITH MARION KNOWLTON and
KEITH M. KNOWLTON LLC,

              Appellants,

  v.

BANNER HEALTH SYSTEMS, a foreign
nonprofit corporation, DBA Banner Desert

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Medical Center; et al.,

             Defendants - Appellees.


                  Appeal from the United States District Court
                            for the District of Arizona
              Frederick J. Martone, Senior District Judge, Presiding

                      Argued and Submitted April 17, 2015
                           San Francisco, California

Before: SCHROEDER and N.R. SMITH, Circuit Judges and GLEASON,** District
Judge.

      Smith appeals from the district court’s order granting summary judgment in

favor of defendants Banner Health Systems and its employee Dr. Scott Elton

(collectively “Banner”), and the order granting summary judgment in favor of the

State of Arizona, the Arizona Department of Economic Security, Arizona Child

Protective Services, and state employees Bonnie Brown, Tammy Hamilton-

MacAlpine, and Laura Pederson. Consolidated with these appeals is an appeal of

the district court’s order awarding fees to Banner Health under 42 U.S.C. § 1988

and imposing sanctions against Smith and her counsel pursuant to Federal Rule of

Civil Procedure 37 and 28 U.S.C. § 1927. We have jurisdiction under 28 U.S.C. §

1291 and we affirm in part, vacate in part, and remand.

       **
             The Honorable Sharon L. Gleason, District Judge for the U.S. District
Court for the District of Alaska, sitting by designation.
                                         2
      1. Smith challenges the grant of summary judgment to Banner, asserting

that the district court violated Federal Rule of Civil Procedure 56(f) by failing to

provide her with notice and an opportunity to respond prior to granting summary

judgment on grounds not raised by Banner. Smith brought two claims against

Banner.

      The first claim, brought under state law, alleged that Banner had

intentionally interfered with Smith’s custody of CR (Smith’s daughter). We

review grants of summary judgment de novo. Thomas v. Cnty. of Riverside, 763

F.3d 1167, 1168 (9th Cir. 2014). On summary judgment, Banner asserted it was

immune from liability on the state law claim pursuant to Arizona’s mandatory

reporting statute. See Ariz. Rev. Stat. § 13-3620(J). Banner also asserted that

Smith was collaterally estopped from arguing that Banner acted with malice

toward Smith (which would defeat its statutory immunity on this claim) because

the Maricopa County Juvenile Court had found that Smith abused CR. The district

court did not rely on collateral estoppel in granting summary judgment to Banner

on this claim. Instead, it found that Smith had not adequately demonstrated malice

on the part of Banner to overcome the statutory immunity. But because Banner’s

collateral estoppel argument challenged the adequacy of Smith’s showing of

malice, Smith had notice that the sufficiency of that showing was at issue on


                                           3
summary judgment. Therefore, the district court did not violate Rule 56(f) when it

granted summary judgment to Banner on the state law claim on that basis. We

further agree with the district court that Smith did not meet her burden of

demonstrating malice necessary to overcome Banner’s statutory immunity and

accordingly affirm the district court’s grant of summary judgment to Banner as to

Smith’s state-law claim.

      2. Smith’s second claim against Banner was brought under 42 U.S.C. § 1983

and alleged the abridgment of Smith’s constitutional right to custody of CR. On

this claim, the district court applied collateral estoppel and concluded that the

juvenile court had established Smith’s abuse of CR, that the finding should be

accorded collateral estoppel effect, and that consequently Smith could not show

that her constitutional right to custody of CR had been violated when Banner

allegedly interfered with her rights. Because Banner raised the collateral estoppel

issue on summary judgment, the district court did not violate Rule 56(f) when it

granted summary judgment on that ground.

      3. Smith challenges the district court’s application of collateral estoppel to

the findings of the juvenile court on summary judgment. The district court granted

summary judgment after concluding, based on the juvenile court’s findings as to

Smith’s treatment of CR, that the state had a compelling interest in CR’s welfare


                                           4
that permitted it to lawfully interfere with Smith’s custody of CR. Consequently,

the district court concluded that Smith had failed to establish that her constitutional

right to custody of CR was violated by Banner.

       “In determining the preclusive effect of a state-court judgment, [the district

court] must ‘refer to the preclusion law of the State in which judgment was

rendered.’” Diruzza v. Cnty. of Tehama, 323 F.3d 1147, 1152 (9th Cir. 2003)

(quoting Marrese v. Am. Acad. of Orthopaedic Surgeons, 470 U.S. 373, 380

(1985)). Under Arizona law:

              Collateral estoppel, or issue preclusion, binds a party to a
              decision on an issue litigated in a previous lawsuit if the
              following factors are satisfied: (1) the issue was actually
              litigated in the previous proceeding, (2) the parties had a
              full and fair opportunity and motive to litigate the issue,
              (3) a valid and final decision on the merits was entered,
              (4) resolution of the issue was essential to the decision,
              and (5) there is common identity of the parties.

Campbell v. SZL Props., Ltd., 62 P.3d 966, 968 (Ariz. Ct. App. 2003).1 A final

judgment is “any prior adjudication of an issue in another action that is determined

to be sufficiently firm to be accorded conclusive effect.” Elia v. Pifer, 977 P.2d

796, 803 (Ariz. Ct. App. 1998) (quoting Restatement (Second) of Judgments § 13

(1982)).


       1
          Here, where collateral estoppel is applied defensively, the “common identity” element
is not required. Id.

                                               5
      Smith argues that the juvenile court orders are not sufficiently final to

warrant giving them collateral estoppel effect. However, Smith concedes in her

briefing that three of the juvenile court orders were sufficiently final to be accorded

collateral estoppel effect, including an order dated May 19, 2010. In that order, the

juvenile court made factual findings as to the connection between Smith’s

continued custody of CR and CR’s prior life-threatening medical events. It further

noted that Smith “presented no expert testimony to rebut Dr. Bursch’s testimony or

to support her position that she does not pose a threat to [CR].” Under the

particular factual circumstances presented, the district court did not err by applying

collateral estoppel to these findings. We find unpersuasive Smith’s alternative

arguments that it is unjust to apply collateral estoppel to juvenile court proceedings

and that the dismissal of CR’s termination proceedings should preclude collateral

estoppel. Accordingly, we affirm the district court’s grant of summary judgment

to Banner.

      4. Smith asserts that the district court erred in granting summary judgment to

the State of Arizona and its departments because she seeks to hold them liable in

respondeat superior for the actions of various state employees. But a respondeat

superior theory of liability does not overcome the State of Arizona’s Eleventh

Amendment immunity from suit for damages in federal court. See Hans v.


                                          6
Louisiana, 134 U.S. 1, 15 (1890); Belanger v. Madera Unified Sch. Dist., 963 F.2d

248, 250 (9th Cir. 1992) (“[I]t is clear that the Eleventh Amendment prohibits

actions for damages against state agencies when Congress has failed to express a

contrary intent.”). Accordingly, the grant of summary judgment as to those parties

is affirmed.

      5. Smith challenges the grant of summary judgment to Bonnie Brown and

Tammy Hamilton-MacAlpine, employees of Arizona Child Protective Services.

Smith alleges that Brown and Hamilton-MacAlpine received exculpatory facts as

to Smith’s treatment of CR from a Tempe Police detective but failed to provide

that information to the juvenile court during CR’s dependency proceedings. But

Smith’s evidence establishes only that Hamilton-MacAlpine was aware that no

criminal charges would be filed against Smith, and does not establish any

knowledge by Brown of the Tempe Police investigation’s findings. Accordingly,

we agree with the district court’s conclusion that Smith has not demonstrated a

genuine dispute of material fact as to whether “either Brown or MacAlpine had the

knowledge and opportunity to correct allegedly false statements contained in the

dependency petition.” Therefore, we affirm the grant of summary judgment as to

these parties.




                                         7
      6. Smith challenges the grant of summary judgment to CPS investigator

Laura Pederson on immunity grounds. The district court held that Pederson was

entitled to quasi-prosecutorial immunity for decisions related to the institution of

dependency proceedings for CR. We have held that social workers are absolutely

immune from § 1983 claims related to the decision to institute dependency

proceedings, but have also held that 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 Cnty., 514 F.3d 906, 908 (9th Cir.

2008) (en banc). Smith asserts that a series of factual statements in CR’s

dependency petition were false and were derived directly from Pederson’s

investigative reports. Smith asserts that as a result, Pederson is not entitled to

immunity from claims stemming from the decision to institute dependency

proceedings. But CPS’s certification of facts to the juvenile court under penalty of

perjury was made by Pederson’s supervisor, not Pederson. And there is no

suggestion in the record before us that CPS’s factual statements reflect anything

other than its good-faith understanding of the facts at the time the petition was

filed. Accordingly, we hold that Pederson is entitled to quasi-prosecutorial




                                           8
immunity as to claims arising from the decision to institute dependency

proceedings for CR.

      The district court further held that Pederson was entitled to qualified

immunity as to her investigatory conduct on CR’s case. A state official is entitled

to immunity from suits brought pursuant to § 1983 unless (1) “the facts, when

taken in the light most favorable to Plaintiff[], show that Defendant[’s] conduct

violated a constitutional right,” and (2) “the constitutional right at issue is ‘clearly

established.’” Torres v. City of Los Angeles, 548 F.3d 1197, 1210 (9th Cir. 2008)

(citation omitted). The heart of Smith’s challenge here rests on Smith’s assertions

that after CR was initially taken into the State’s custody, Pederson failed to follow

up on information provided by Smith or otherwise look for exculpatory evidence

that would favor returning CR to Smith’s custody and that triable issues of fact

exist as to whether continued investigation would have required CR’s return.

Smith misapprehends the qualified immunity inquiry. To circumvent qualified

immunity, Smith must show that a reasonable CPS worker would have understood

that her alleged failure to further investigate CR’s case violated Smith’s clearly

established federal rights. Saucier v. Katz, 533 U.S. 194, 202 (2001), overruled on

other grounds by Pearson v. Callahan, 555 U.S. 223 (2009). Smith points to no

such federal right—in fact, authority supports the opposite position. See Tsao v.


                                            9
Desert Palace, Inc., 698 F.3d 1128, 1147 (9th Cir. 2012) (“While an officer may

not ignore exculpatory evidence that would negate a finding of probable cause,

‘[o]nce probable cause is established, an officer is under no duty to investigate

further or to look for additional evidence which may exculpate the accused.’”)

(quoting Broam v. Bogan, 320 F.3d 1023, 1032 (9th Cir. 2003) (alteration in

original)). And to the extent Smith challenges the propriety of the district court,

rather than a jury, evaluating whether Pederson reasonably believed that probable

cause existed that CR was in danger, that was not error. See Act Up!/Portland v.

Bagley, 988 F.2d 868, 873 (9th Cir. 1993) (when applying qualified immunity

analysis on summary judgment, the “determination of whether the facts alleged

could support a reasonable belief in the existence of probable cause . . . [is] a

question of law to be determined by the court”). Accordingly, we affirm the

district court’s grant of summary judgment to Pederson.

      7. Smith challenges the district court’s award of $50,402.50 in attorney’s

fees to Banner as a prevailing party pursuant to 42 U.S.C. § 1988. We review

decisions determining the legal right to attorney’s fees under 42 U.S.C. § 1988 de

novo. Chaudhry v. City of L.A., 751 F.3d 1096, 1110 (9th Cir. 2014). Fees may be

awarded to a defendant if a plaintiff continued to litigate a § 1983 claim after it

became clear the claim was frivolous, unreasonable, or groundless. Christiansburg


                                          10
Garment Co. v. EEOC, 434 U.S. 412, 422 (1978). The district court awarded fees

to defray the expenses that Banner incurred litigating Smith’s post-summary

judgment motions. Smith’s motions included a motion for reconsideration that

also sought relief under Federal Rules of Civil Procedure 59 and 60—rules which

were inapposite but necessitated a response from Banner. Smith also sought to

conduct additional discovery from Banner in support of her motion for

reconsideration and other relief. These motions were unreasonable. Accordingly,

we affirm the district court’s award of fees related to these motions under 42

U.S.C. § 1988.

      8. Smith and her counsel challenge the imposition of $33,588 in Rule 37

sanctions against them jointly and severally. We review the awarding of fees

pursuant to Rule 37 for abuse of discretion. Sigliano v. Mendoza, 642 F.2d 309,

310 (9th Cir. 1981). The district court did not abuse its discretion by concluding

that Smith and her counsel violated its scheduling and discovery orders by failing

to diligently attempt to obtain records from the juvenile court and failing to

properly comply with Rule 26 disclosure requirements. Such conduct is

sanctionable under Rule 37. And we hold the district court’s limited findings in

support of its sanction were not error where Rule 37 and the law of this circuit do




                                          11
not require more. Accordingly, we affirm the district court’s imposition of Rule 37

sanctions against Smith and her counsel.

      9. Smith’s counsel challenges the imposition of 28 U.S.C. § 1927 sanctions

against him in part due to the failure of the district court to grant his request for

oral argument prior to entering its order. Sanctions imposed pursuant to 28 U.S.C.

§ 1927 are “reviewable for abuse of discretion.” United States v. Assoc.

Convalescent Enters., Inc., 766 F.2d 1342, 1345 (9th Cir. 1985) (internal citation

omitted). Notice and an opportunity to be heard should be provided before

sanctions are imposed under § 1927. See T.W. Elec. Serv., Inc. v. Pac. Elec.

Contractors Ass’n, 809 F.2d 626, 638 (9th Cir. 1987). Granting a request for oral

argument ensures “that: (1) the attorneys will have an opportunity to prepare a

defense and to explain their questionable conduct at a hearing; (2) the judge will

have time to consider the severity and propriety of the proposed sanction in light of

the attorneys’ explanation for their conduct; and (3) the facts supporting the

sanction will appear in the record, facilitating appellate review.” Miranda v. S.

Pac. Trans. Co., 710 F.2d 516, 522-23 (9th Cir. 1984); see also Malhiot v. S. Cal.

Retail Clerks Union, 735 F.2d 1133, 1138–39 (9th Cir. 1984) (Boochever, J.,

dissenting). Counsel’s request for oral argument was made in conformance with

the District of Arizona local rules by including the phrase “oral argument


                                           12
requested” in the caption of his response brief. See Ariz. LRCiv. 7.2(f). In light of

the significant sanction imposed, the different judges that presided in this matter,

and the particulars of this action and related actions known to the district court, we

hold that the district court abused its discretion when it failed to grant the request

for oral argument prior to imposing 28 U.S.C. § 1927 sanctions. Accordingly, we

vacate the sanctions imposed upon Smith’s counsel pursuant to that statute and

remand to the district court for oral argument.2

AFFIRMED IN PART, VACATED IN PART, and REMANDED.

Each party shall bear its own costs.




       2
         We therefore need not reach counsel’s challenge to the district court’s factual findings
in support of the sanctions.

                                                13
