Filed 10/1/13 Christina C. v. County of Orange CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 THREE


CHRISTINA C. et al.,

     Plaintiffs and Appellants,                                        G047805

         v.                                                            (Super. Ct. No. 30-2011-00437624)

COUNTY OF ORANGE et al.,                                               OPINION

     Defendants and Respondents.


                   Appeal from a judgment of the Superior Court of Orange County, John C.

Gastelum, Judge. Affirmed.
                   Gary Paul Levinson for Plaintiffs and Appellants.

                   Koeller, Nebeker, Carlson & Haluck, William L. Haluck, Matthew B.

Golper and Zachary M. Schwartz, for Defendants and Respondents.
                                          *                  *                  *
              C.C. and his mother, Christina C. (mother), appeal from the trial court‟s

summary judgment in favor of the County of Orange, its Social Services Agency (SSA),

and several of SSA‟s social workers.1 Plaintiffs complain the trial court erred in

concluding public employee immunity (Gov. Code, § 820.2) barred their claims arising

from SSA‟s decision to remove 10-year-old C.C. from mother‟s care and place him with

father, only to return C.C. to his mother when he fared poorly in father‟s care. As we

explain, plaintiffs‟ claims for reversal have no merit, and we therefore affirm the

judgment.

                                             I

                  FACTUAL AND PROCEDURAL BACKGROUND

              Mother and father married in 1998, the year C.C. was born, but rarely

resided together and divorced in 2000 when C.C. was almost two years old. According to

mother, she received primary physical custody of C.C. After a four-year period of

contentious battles with father, marked by multiple interventions by SSA social workers

amidst mother‟s declining mental health, the family court ordered an Evidence Code

section 730 study in which the evaluator concluded mother suffered from cognitive

impairments and poor boundaries that affected her ability to safely parent C.C. The
family court agreed and vested father with exclusive legal and physical custody in June

2004.

              Four years later in October 2008, when C.C. was almost 10 years old,

father was arrested on charges of attempted rape by furnishing his live-in maid with ice

cream containing benzodiazepine, a powerful sleeping medication. The charges included

        1       We refer to C.C. by his initials, and his mother and father only by those
designations, to preserve C.C.‟s confidentiality (Cal. Rules of Court, rule 8.401(a)(1) &
(3)) in this suit initiated by his mother as his guardian.


                                             2
illegal firearm possession by a felon. According to mother, she and C.C. had both tested

positive for benzodiazepine at the time of his birth though she was not taking any

sleeping medication. She also pegged her mental and emotional decline to one or more

encounters with father in 2001 and earlier in which she now believed he had drugged and

raped her. She had unsuccessfully sought a restraining order against him in 2001. The

prosecutor in the current criminal action involving the maid added charges against father

for rape using drugs and rape of an unconscious person based on mother‟s allegations

dating to a March 2001 incident.

              Meanwhile, SSA had detained C.C. at Orangewood Children‟s Home when

father was arrested. The police interviewed mother at or near the time of father‟s arrest,

but did not release C.C. to her care because she was not entitled to custody under the

family court‟s order and, moreover, the officer and a police-affiliated victim advocate

observed “current indicators that the mother might not be considered fit to parent at this

time.” For example, mother “appeared delusional, with delusions of persecution and

religious affiliation,” she “reported to have seen ghosts,” and the officer “also questioned

the mother‟s ability to make appropriate choices” given she stayed with father more than

three years despite claiming she was “repeatedly raped.”
              SSA also interviewed mother. She explained to a social worker she was

conscious during and tolerated father‟s sex acts against her because “„no one believed

me,‟” “„he convinced me,‟” and because she previously had been abused and neglected,

including by her father. Mother diagnosed herself “as suffering from PTSD

[posttraumatic stress disorder], with an „ongoing affect‟ . . . .” The ghosts she had seen

on her property had “been recorded and verified as authentic.” She now supported

herself “through playing cards,” stated she kept a “very stable and clean home,” and



                                             3
according to the social worker‟s report, “mother repeatedly argue[d] these points over

and over again, insisting she is a capable parent and that her son should immediately be

placed with her.” When the worker “suggested that a more recent psychological

evaluation might be necessary to assess this very issue, the mother appeared very

resistant to the process.” SSA did not immediately place C.C. with mother.

              Instead, the dependency court at C.C.‟s detention hearing in October 2008

ordered monitored visitation for mother and father at SSA‟s offices. The court vested

SSA with discretion to “lift/reinstate monitor . . . for mother and father” and to liberalize

parental visitation. Mother subsequently provided SSA with a mental health evaluation

prepared by a nurse practitioner associated with a psychiatrist. The nurse practitioner

disagreed with a previous bipolar disorder diagnosis for mother, explaining she “did not

note any delusional thinking, paranoia, psychotic processes, tangential thinking, or

memory impairment,” nor any need for medication. The nurse concluded mother “does

not appear to have any symptomology that would interfere with her role as a mother or

for the care of her son.” Mother‟s court-appointed therapist and her personal counselor

similarly agreed the court should return C.C. to her care on grounds that mother had

never abused him.
              Visits SSA arranged for C.C. with his maternal grandfather in

Laguna Beach had gone well, but the grandfather could not care for C.C. alone because

of his age and ill health. Mother, however, agreed to move in with her father, and SSA

concluded that a “combined household like this,” which included the grandfather‟s live-in

housekeeper, would “be safe[] for the child and would provide more supervision in the

home.” SSA recommended the home placement under a Conditional Release to Intensive

Services Program (CRISP) agreement that mother signed, which included 15 specific



                                              4
conditions mother assented to in the release. The conditions included the following: “I

will continue to attend therapy twice a week,” “I will facilitate visits between the child

and his father and will not speak negatively of the father in the child‟s presence,” “I

understand [the] frequency of visits will be determined by the CRISP worker,” and “I

shall obey any reasonable directions of my CRISP [w]orker regarding the care of the

child in my custody.”

              The dependency court endorsed the CRISP agreement at a January 2009

hearing, and further ordered the “child may be redetained if it appears [the] terms and

conditions of the CRISP release agreement are violated or [the] child is at risk” (italics

added) and that “[a]ll prior orders . . . remain[ed] in full force and effect.” SSA placed

C.C. with mother in grandfather‟s home on January 8, 2009. According to SSA, mother

had difficulty from the outset abiding by the terms of the agreement, including the

requirement to attend counseling therapy twice a week and to refrain from speaking

negatively of father in front of the child, who complained to his therapist that mother

pressured him to join in her criticism.

              Meanwhile, according to SSA, father‟s visits were so positive that the

agency considered dispensing with a monitor. The court at a hearing on February 10,
2009, considered the matter and confirmed SSA retained authority to lift the monitor.

Mother opposed allowing father unmonitored visitation, but had not attended the hearing.

According to SSA social worker Jennifer Marks, when she telephoned mother to advise

her what occurred and that SSA planned to allow unmonitored visitation with father,

mother refused to cooperate. Marks explained her refusal put her in violation of the

CRISP agreement and C.C. would be redetained, but mother remained steadfast.

According to mother, she did not expressly refuse to transport C.C. to any future visits



                                              5
with father, and instead simply voiced her concern about unmonitored visitation and

asked Marks to contact mother‟s lawyer.

              C.C. happened to be on a monitored visit with father and, after hanging up

with mother, Marks arranged for C.C. to be redetained and placed in father‟s care without

a monitor. She then telephoned mother to notify her she need not pick up C.C. from the

monitored visit at father‟s home that day. After several continuances into May 2009, the

dependency court ratified SSA‟s decision to redetain C.C. and place him with father.

              C.C. remained in father‟s care for approximately 13 months until, in

March 2010, SSA redetained him and filed a supplemental dependency petition on

grounds of general neglect, educational neglect, and concerns father exposed C.C. to

pornographic magazines, videos, and violent computer games. Father had not complied

with his case plan requirement to ensure C.C.‟s attendance at school; C.C. also often fell

asleep in class, did not turn in his homework, and mother and C.C.‟s previous therapist

reported he appeared preoccupied with sexual and violent themes that manifested itself in

verbal abuse against mother and play therapy that included making dolls attack and rape

each other. SSA immediately placed C.C. in mother‟s care.

              Father pleaded guilty in November 2010 to one count of poisoning his maid
with benzodiazepine and a felon-in-possession firearm charge, and the juvenile court

closed the dependency proceedings with exit orders awarding mother sole physical and

legal custody of C.C., with monitored visitation for father.

              Mother filed this civil action in January 2011 on her behalf and on behalf of

C.C. as her minor child, alleging SSA and its social workers violated their civil rights.

Specifically, the complaint alleged three “Counts” against the defendants: (1) “Monell




                                             6
Related Claims”; (2) “Violation of State Civil Rights” under Civil Code sections 43, 49

51, and 52.1; and (3) intentional infliction of emotional distress.2

              Defendants moved in June 2012 for summary judgment or, in the

alternative, summary adjudication. The trial court granted summary judgment. The court

explained that, based on the dependency court‟s orders vesting discretion with SSA over

C.C.‟s placement and visitation, with express authorization to redetain him under the

CRISP release, “[t]he acts or omissions complained of appear to be within defendants‟

granted authority.” The court held that under the immunity afforded social workers per

Government Code section 820.2, “it is irrelevant whether defendants were correct in their

decisions or even whether they abused their discretion.”

              The court observed, “The [summary judgment] opposition essentially

summarizes father‟s shortcomings and explains why the government was wrong to take

custody from [mother],” but “[i]t does not even address the issue of immunity — the

heart of defendants‟ motion — until page 24, wherein plaintiffs briefly argue immunities

do not apply here because defendants acted with malice.” The court noted, however, that

“plaintiffs fail to cite, in their papers, any evidence supporting a possible finding of

malice on the part of any of the defendants.” The court acknowledged that at the hearing
on defendants‟ motion, plaintiffs‟ counsel “advanced the theory that social worker Marks

       2       Plaintiffs never explain what they meant by “Monell Related Causes of
Action,” but in Monell v. Department of Social Services of City of New York (1978)
436 U.S. 658, the high court held an action under 42 U.S.C. section 1983 against a
governmental entity must fail unless the entity engaged in a “custom, practice, or policy”
of violating individual civil rights, rather than isolated instances invading constitutional
rights. Civil Code section 43 provides that every person has a right to be free from
“injury to his personal relations”; Civil Code section 49 forbids “the abduction . . . of a
child from a parent”; Civil Code section 51, known as the Unruh Civil Rights Act,
prohibits discrimination in all business establishments; and Civil Code section 52.1
provides a civil remedy against hate crimes causing or threatening violent interference
with an individual‟s civil rights.

                                              7
maliciously terminated the CRISP release to [m]other and changed custody to [f]ather to

„punish‟ [m]other because she had the temerity to challenge the social worker‟s decision

to grant unmonitored visits.” But the court observed that the arguments of counsel are

not evidence.

                The court found no merit in plaintiffs‟ invocation of seminal dependency

civil rights cases like Santosky v. Kramer (1982) 455 U.S. 745. The court explained:

“Although not clear, in citing these cases[] plaintiffs appear to argue defendants lacked

authority to take custody away from [mother]. But none of the cases cited support this

contention here and plaintiffs ignore that the Juvenile Court expressly granted such

authority to the defendants. And to the extent plaintiffs argue the court had no authority

to do so, such was not a theory pled in the [c]omplaint, which frames a summary

judgment motion.” The trial court granted summary judgment in favor of defendants,

and plaintiffs now appeal.

                                               II

                                        DISCUSSION

A.     General Summary Judgment Principles

                Facts are the lifeblood of summary judgment proceedings because absent a
factual dispute, trial is unnecessary. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th

826, 843 (Aguilar) [“The purpose of the law of summary judgment is to . . . cut through

the parties‟ pleadings . . . to determine whether . . . trial is in fact necessary”].) We

review a grant of summary judgment de novo. “In practical effect, we assume the role of

a trial court and apply the same rules and standards which govern a trial court‟s

determination of a motion for summary judgment.” (Zavala v. Arce (1997)

58 Cal.App.4th 915, 925.)



                                               8
              A motion for summary judgment should be granted if the submitted papers

show that “there is no triable issue as to any material fact,” and that the moving party is

entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) A

defendant meets her burden of showing a cause of action has no merit if she shows that

one or more elements of the cause of action cannot be established, “or that there is a

complete defense to that cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2).)

              If the moving party carries that burden, she “causes a shift, and the

opposing party is then subjected to a burden of production of his own to make a prima

facie showing of the existence of a triable issue of material fact.” (Aguilar, supra,

25 Cal.4th at p. 850.) A triable issue of material fact exists “„if, and only if, the evidence

would allow a reasonable trier of fact to find the underlying fact in favor of the party

opposing the motion in accordance with the applicable standard of proof.‟ [Citation.]

Thus, a party „cannot avoid summary judgment by asserting facts based on mere

speculation and conjecture, but instead must produce admissible evidence raising a triable

issue of fact. [Citation.]‟ [Citation.]” (Dollinger DeAnza Associates v. Chicago Title

Ins. Co. (2011) 199 Cal.App.4th 1132, 1144-1145 (Dollinger).)

B.     Plaintiffs Forfeit Their Appellate Challenge to the Summary Judgment Ruling
              Plaintiffs complicate our review of their claims by failing to provide any

record citations in the argument portion of their brief. Absent the requisite cites, it is not

clear their appellate claims are founded in the evidence before the trial court. (Dollinger,

supra, 199 Cal.App.4th at pp. 1144-1145 [party opposing summary judgment “must

produce admissible evidence”]; see also Pierotti v. Torian (2000) 81 Cal.App.4th 17, 29

[“an appellant must support all statements of fact in his briefs with citations to the
record”]; Cal. Rules of Court, rule 8.204(a)(1)(C).) Plaintiffs‟ general citation in the



                                               9
“Facts” section of their brief to portions of the record spanning almost 50 pages is

inadequate. “Counsel is admonished that . . . citations are to include the internal page

reference where the applicable point is found. [Citation.]” (Del Real v. City of Riverside

(2002) 95 Cal.App.4th 761, 768 (Del Real).)

              Plaintiffs also fail to support their central claim with any record citations.

The section of their brief purportedly identifying “Triable Issues of Fact” as the basis for

their summary judgment appeal does not include a single record citation. “The appellate

court is not required to search the record on its own seeking error.” (Del Real, supra,

95 Cal.App.4th at p. 768.) To the contrary, we must presume the judgment is correct

absent an affirmative showing by the appellant. (Denham v. Superior Court (1970)

2 Cal.3d 557, 564 (Denham).)

              Points “made without citation to the record . . . [are] deemed waived” in the

reviewing court‟s discretion. (Annod Corp. v. Hamilton & Samuels (2002)

100 Cal.App.4th 1286, 1301; Del Real, supra, 95 Cal.App.4th at p. 768.) We note the

presumption in favor of judgments rendered below is “„not only a general principle of

appellate practice but [also] an ingredient of the constitutional doctrine of reversible

error.‟” (Denham, supra, 2 Cal.3d at p. 564.) Consequently, we conclude plaintiffs
forfeit their appellate claims. Put another way, plaintiffs have failed their burden to

demonstrate error, and we therefore affirm the judgment.

C.     Plaintiffs’ Claims Also Fail on the Merits

              Even overlooking plaintiffs‟ forfeiture, their appellate challenge fails. The

trial court did not err in granting summary judgment. Plaintiffs claim their “civil case

boils down, in large part, to the reason(s) for why the Department of Social Services
removed C.C. from his mother‟s care on February 10, 2009.” (Original emphasis.) They



                                             10
dispute Marks‟ explanation the placement failed because mother violated the CRISP

agreement‟s express terms, including CRISP Condition 9(b): “I will continue to attend

therapy twice a week” and CRISP Condition 9(d): “I will facilitate visits between the

child and his father.” Plaintiffs claim instead that SSA removed C.C. simply “out of

arrogance, and to punish [mother] when [she] asserted a contrary position [regarding

paternal visits]” and “for financial reasons, due to department cutbacks” precluding a

monitor for father‟s visits. Plaintiffs assert: “The reasons for the removal of C.C. from

[mother]‟s legitimate custody is at issue and needs to be decided by the trier of fact in the

civil case.”

               Plaintiffs‟ argument for reversal fails for at least four reasons. First, they

provided no evidence the true reasons SSA removed C.C. stemmed from arrogance, to

punish mother, or due to budgetary constraints, as plaintiffs claim. Plaintiffs do not

indicate where in their separate statement they specified any facts supporting these

contentions. As the trial court observed, plaintiffs “did not submit a Separate Statement

of their own proffered facts; they only provide a response to defendants‟ 81 proffered

facts.” It appears plaintiffs simply concluded SSA acted with arrogance, a punitive

intent, or for misplaced financial reasons. But it is not enough in opposing summary
judgment to surmise reasons or make unfounded allegations: “a party „cannot avoid

summary judgment by asserting facts based on mere speculation and conjecture, but

instead must produce admissible evidence raising a triable issue of fact. [Citation.]‟

[Citation.]” (Dollinger, supra, 199 Cal.App.4th at pp. 1144-1145.)

               Second, only material factual disputes bear any relevance: “no amount of

factual conflict upon other aspects of the case will preclude summary judgment.”

(Shively v. Dye Creek Cattle Co. (1994) 29 Cal.App.4th 1620, 1627.) Plaintiffs do not



                                              11
explain how SSA‟s asserted arrogance, punitive intent, or minimal access to county

coffers have anything to do with their causes of action.

                Specifically, plaintiffs filed suit for alleged hate crimes (Civ. Code, § 52.1),

violations of the Unruh Civil Rights Act (Civ. Code, § 51), child abduction (Civ. Code,

§ 49), “injury to personal relations” (Civ. Code, § 43), unexplained “Monell-related

causes of action,” and intentional infliction of emotional distress. But they cite no

authority and make no attempt to explain how SSA‟s actions in the dependency context

provide a basis for any of their wide-ranging causes of action. (See In re La Shonda B.

(1979) 95 Cal.App.3d 593, 599 [dependency proceeding by nature “is brought on behalf

of the child, not to punish the parents”]; see also Cal. Rules of Court, rule 8.204(a)(1)(B)

[appellant must support each point by reasoned argument “and, if possible, by citation to

authority”].)

                Third, mother overlooks that her core complaint about C.C.‟s removal from

her care rests with the dependency court, not SSA. The court, in the final analysis, makes

the decision at the detention hearing (Welf. & Inst. Code, §§ 315, 319) whether a child

will remain out of parental custody and again at the disposition hearing whether the

detention will continue, where the child will be placed, and on what conditions (Welf. &
Inst. Code, §§ 358, 361). Here, the court at the detention hearing in the dependency

proceedings placed C.C. with SSA, authorized SSA to release C.C. to his parents or other

“suitable adult as deemed appropriate,” and vested SSA with discretion to “lift/reinstate

monitor . . . for mother and father once released” and to liberalize parental visitation.

(Italics added.) Then, at the dispositional hearing, the dependency court ratified C.C.‟s

temporary placement with mother under the terms she agreed to in the CRISP release,

and authorized SSA to redetain him “if it appears the terms and conditions . . . are



                                               12
violated or [the] child is at risk.” (Italics added.) The court at the disposition hearing

also expressly noted “[a]ll prior orders to remain in full force and effect,” thereby

continuing SSA‟s authority to modify C.C.‟s placement and determine whether visitation

required a monitor.

              Mother suggests on appeal that the trial court improperly delegated its

authority in these important matters to SSA, including the authority to end the CRISP

placement and place C.C. with father. But mother offered no challenge in the

dependency proceedings to the trial court‟s delegation, and doing so now does not aid her

in this civil lawsuit against SSA. In particular, mother does not argue and provided no

evidence below that SSA did anything to wrongfully obtain or coax from the court

authority over the CRISP placement. It would be difficult to conceive such evidence,

since as a practical matter someone besides the court must have the ability to quickly

redetain a child from a placement if necessary, particularly an intensive CRISP

placement. In any event, the key consideration pertinent to this appeal is that nothing

implicates SSA and its social workers in plaintiffs‟ belated complaint about the court‟s

allegedly improper delegation of placement authority. Presumably plaintiffs did not sue

the dependency court because of judicial immunity. (See, e.g., Howard v. Drapkin
(1990) 222 Cal.App.3d 843, 851The concept of judicial immunity is long-standing and

absolute”].) But that does not furnish a basis to sue SSA or its social workers acting

under delegated judicial authority.

              Fourth and related, although social workers are not judicial officers entitled

to judicial immunity, the trial court properly determined defendants were entitled to

judgment as a matter of law based on the immunity that shields discretionary decisions by

public employees. (Gov. Code, § 820.2.) Government Code section 820.2 provides that,



                                              13
“[e]xcept as otherwise provided by statute, a public employee is not liable for an injury

resulting from his act or omission that was the result of the exercise of the discretion

vested in him, whether or not such discretion is abused.” (Ibid.) Under this provision,

social workers are entitled to immunity for their child removal and placement decisions

in dependency proceedings. (Jacqueline T. v. Alameda County Child Protective Services

(2007) 155 Cal.App.4th 456, 466 (Jacqueline T.).)

              The immunity applies even to “lousy” decisions in which the worker abuses

his or her discretion, including decisions based on “woefully inadequate information.”

(Ortega v. Sacramento County Dept. of Health & Human Services (2008)

161 Cal.App.4th 713, 725, 728, 733 [social worker returned child to father, who promptly

stabbed the child in the heart and lungs].) Consequently, the factual questions plaintiffs

raise regarding why SSA removed C.C. from mother‟s care do not preclude summary

judgment because they are irrelevant. Simply put, even assuming arguendo SSA abused

its discretion by acting in an arrogant or punitive manner or with undue consideration for

monitoring costs, the immunity provided in Government Code section 820.2 expressly

applies “whether or not such discretion is abused.” Section 820.2 specifies no exception

for malice. The same wide discretion applies even if Marks or other SSA social workers
were grossly incorrect in concluding mother violated the CRISP agreement. As the

Ortega court explained, “„[C]laims of improper evaluation cannot divest a discretionary




                                             14
policy decision of its immunity.”3 (Ortega, supra, 161 Cal.App.4th at p. 733; accord,

Caldwell v. Montoya (1995) 10 Cal.4th 972, 984-985.)

              Plaintiffs see in another code provision, Government Code section 820.21,

an exception dissolving immunity for social workers whenever their discretionary

decisions result in harm that plaintiffs insist was “created with intent and malice.”

Plaintiffs argue SSA‟s allegedly punitive intent in wrongly finding CRISP violations

established the requisite malice.

              Plaintiffs read Government Code section 820.21 too broadly. It is not a

blanket exception for every conceivable act that may be done with malice. By its terms,

the immunity exception in section 820.21 is limited to specific instances of misconduct,

including perjury. It provides: “Notwithstanding any other provision of the law, the civil

immunity of juvenile court social workers, child protection workers, and other public

employees authorized to initiate or conduct [child welfare] investigations or proceedings

. . . shall not extend to any of the following, if committed with malice: [¶] (1) Perjury.

[¶] (2) Fabrication of evidence. [¶] (3) Failure to disclose known exculpatory evidence.

[¶] (4) Obtaining testimony by duress . . . .” (Gov. Code, § 820.21, subd. (a), italics

added.) Erroneously removing a child is not among the listed actions committed with
malice for which immunity is revoked.


       3      The trial court also noted, as defendants had argued, that defendants
appeared to be entitled to immunity under Government Code section 821.6, which
provides: “„A public employee is not liable for injury caused by his . . . instituting or
prosecuting any judicial or administrative proceeding, . . . even if he . . . acts maliciously
and without probable cause.” (See, e.g., Jacqueline T., supra, 155 Cal.App.4th at
pp. 465, 468 [finding social workers “immune from liability for their alleged acts and
omissions under [Gov. Code] sections 820.2 and 821.6,” italics added].) Like the trial
court, however, we conclude that “[b]ecause defendants [are] immune under
section 820.2, the [c]ourt need not address the parties‟ argument about prosecutorial
immunity.”

                                              15
              Plaintiffs did not assert SSA workers committed perjury, fabricated

evidence produced for a decisionmaker, or committed similar misconduct to end the

CRISP placement and remove C.C. from mother‟s care. Rather, as discussed, the

removal decision itself was committed with mother‟s assent in the CRISP agreement to

SSA‟s discretion. SSA and its social workers therefore served as the initial

decisionmakers in removing C.C. from his CRISP placement, and it makes little sense to

suggest SSA committed perjury or fabricated evidence in its own removal

decisionmaking process.

              And there is no evidence SSA hid any evidence when the dependency court

later reviewed and ratified SSA‟s removal and new placement decision. Rather, SSA and

mother produced all pertinent evidence according to their respective burdens of proof and

production, sufficient for the court to make a fully informed decision ratifying SSA‟s

actions. Plaintiffs do not assert the trial court lacked any information to make its

decision. (See Watson v. County of Santa Clara (N.D. Cal. 2010) 2010 WL 2077171, *9

[summary judgment proper where plaintiff failed to produce evidence defendants

committed perjury or other specified acts invalidating immunity in Gov. Code, 820.21].)

In any event, plaintiffs also failed to oppose summary judgment with evidence of Marks‟
punitive intent or malice in removing C.C. “[S]ubstantial responsive evidence is

required” and they produced none. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151,

162-163 [“mere speculation . . . is insufficient to establish a triable issue of fact”].)

              Plaintiffs appear to assert they were not required to produce any evidence

beyond the bare fact SSA removed C.C. from mother‟s care because committing that

authority to SSA‟s discretion “amounted to per se violations of plaintiffs‟ constitutional

and civil rights.” (Boldface and capitalization removed.) Plaintiffs invoke Santosky,



                                               16
supra, 455 U.S. 745, noting there the high court “clearly established the constitutional

protection[] of familial bonds and the right to due process when those bonds are

threatened by the government.” Specifically, plaintiffs assert that vesting SSA with

authority to end the CRISP placement “illegally usurped judicial authority . . . .”

Plaintiffs apparently view this delegation as a per se due process violation.

              Plaintiffs, however, did not assert this theory in the dependency

proceedings, nor in their complaint in this civil action, nor do they provide page citations

to suggest they made this argument in opposition to summary judgment. Notably,

plaintiffs declined in the dependency proceedings to seek immediate judicial review of

SSA‟s removal decision or otherwise to modify (Welf. & Inst. Code, § 388) SSA‟s

CRISP authority. Plaintiffs also omitted in their civil complaint any mention of the trial

court‟s assertedly improper delegation, and a plaintiff may not oppose summary

judgment with a new unpleaded legal theory. (Robinson v. Hewlett-Packard Corp.

(1986) 183 Cal.App.3d 1108, 1132.) “The principles of „theory of the trial‟ apply to . . .

summary judgment motions” (North Coast Business Park v Nielsen Construction Co.

(1993) 17 Cal.App.4th 22, 29), and therefore “„[a] party is not permitted to change his

position and adopt a new and different theory on appeal‟” (ibid.). “„To permit him to do
so would not only be unfair to the trial court, but manifestly unjust to the opposing party.‟

[Citation.]” (Ibid.) Instead, the pleadings define the issues to be considered on a motion

for summary judgment (Lockhart v. County of Los Angeles (2007) 155 Cal.App.4th 289,

303), and plaintiffs did not allege improper delegation in their complaint.

              In any event, plaintiffs‟ bid for reversal fails on the merits because the

dependency court is the true target for their core claim of wrongful delegation and, as

noted, the court is absolutely immune. Furthermore, as defendants note, Santosky is



                                             17
inapposite because here mother did not have a preexisting custodial right with which SSA

or the dependency court allegedly interfered in a manner violating due process. Rather,

she had lost custody in the family court proceedings before the dependency case arose,

and therefore gained only provisional custody of C.C. by the terms of the CRISP release,

to which she agreed. Having agreed to the terms, including SSA‟s right to redetain C.C.

“if it appears the terms and conditions . . . are violated or [the] child is at risk” (italics

added), there is no conceivable merit to plaintiffs‟ theory of a per se constitutional

violation. Simply put, no reasonable trier of fact could decide the matter in plaintiffs‟

favor, and the trial court therefore properly granted summary judgment.

                                               III

                                        DISPOSITION

               The judgment is affirmed. Respondents are entitled to their costs on

appeal.


                                                     ARONSON, J.

WE CONCUR:



MOORE, ACTING P. J.



IKOLA, J.




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