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Court of Appeal, Second District, Division 2, California.

Nellie ROSCO, individually, and as Guardian Ad Litem for Matt Watkins and Billy Watkins and Michael Rosco, an individual, Plaintiffs and Appellants, v. COUNTY OF LOS ANGELES, a Public Entity;  David Wenzel, an individual;  Robert Chaffee, an individual;  William Yeo, an individual;  and Does 1 Through 100, inclusive, Defendants and Respondents.

No. B031446.

Decided: January 26, 1989

Jaffee, Trutanich, Scatena & Blum, and Fred M. Blum, San Francisco, for plaintiffs and appellants. Wasserman, Comden & Casselman, Edward A. DeBuys, Tarzana, and Richard D. Lester, Sherman Oaks, for defendants and respondents.

Plaintiffs, Michael Rosco, his present wife, Nellie, and her two children, Matt and Billy Watkins, appeal from a judgment of dismissal entered after the trial court sustained, without leave to amend, a demurrer to their second amended complaint against defendants County of Los Angeles (county), et al.   The complaint alleged that plaintiffs suffered damages arising out of the misconduct of employees of county's Department of Childrens Services (DCS) in violation of both state and federal law.

Plaintiffs appeal, however, only from the dismissal of their civil rights action premised on 42 United States Code Section 1983 (hereinafter section 1983) which provides in pertinent part:  “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ․ subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress․”

In the instant case, plaintiffs charged that defendants violated their parental, privacy and due process rights, denied them equal protection of law, and damaged their reputation by attaching to them “a badge of infamy” as a result of the manner in which defendants conducted an investigation into charges of child abuse and molestation.

The trial court dismissed the action after ruling that defendants possessed prosecutorial immunity to actions commenced under the federal statute.1  We affirm.

Plaintiffs' complaint alleged the following facts.   Michael and his former wife Sandra had a child named Gabriella.   Following their marital dissolution, Sandra formulated a plan to impugn Michael's reputation and deprive him of his parental rights as to Gabriella.   To accomplish her purpose, she made a false report to one David Wenzel, an employee of DCS, charging that Michael had permitted his stepsons, Matt and Billy, to sexually molest Gabriella.2  Plaintiffs complained that Sandra then enlisted the aid of Wenzel, and his supervisors, Robert Chaffee and William Yeo, to further her deception.

According to the pleading, the DCS employees knowingly aided Sandra's “scheme by making false and misleading reports, cajoling and coercing Gabriella into falsely admitting that said molestation had taken place;  making statements and conclusions regarding the physical condition of Gabriella without any scientific, medical or other justification for the making of said false statements;  by ignoring evidence which would have the effect of exonerating Plaintiffs [Matt and Billy];  and by conducting a biased, inadequate and reckless investigation into the facts of the instant case.  [¶ ] As a result of the acts as hereinabove alleged ․ a Petition was filed in [juvenile court] alleging that Plaintiff Michael Rosco's parental rights should be eliminated or limited due to the fact that [Matt and Billy] had sexually molested Gabriella and that Plaintiff Michael Rosco had not adequately supervised Gabriella․  [¶ ] The charges in the Petition ․ were dismissed.”

Plaintiffs further alleged that “[t]he investigation into the conduct of [Matt and Billy] was a pretext to allow Defendants to investigate the conduct of Plaintiff Michael Rosco․  [I]t was the intent of Defendants to utilize the investigation into [Matt and Billy] as a means to disrupt the parental relationship between Gabriella and Plaintiff Michael Rosco, and to attempt to acquire evidence that Plaintiff Michael Rosco mistreated Gabriella.”

The complaint also charged that the county “inadequately train[ed] its personnel to conduct its investigations, ․ allow[ed] investigators to conduct their investigation in a reckless manner ․ [and] to falsify evidence, and to ignore exonerating evidence․”  As a proximate result of the aforementioned conduct, plaintiffs alleged that they suffered medical and legal costs, emotional distress, and lost wages.

We begin our analysis by first addressing the liability of the individual defendants.   It is axiomatic that on appeal from the granting of a demurrer, the reviewing court must treat as true the properly pleaded allegations contained in plaintiffs' complaint.  (Loehr v. Ventura County Community College Dist. (1983) 147 Cal.App.3d 1071, 1076, 195 Cal.Rptr. 576.)   Nevertheless, even if plaintiffs could prove their charge that the DCS employees conspired 3 to and did conduct themselves illegally during the investigation, no liability would attach to the individual defendants if their actions were “intimately associated with the judicial phase of the [dependency proceeding] ․ to which the reasons for absolute immunity apply with full force.”  (Imbler v. Pachtman (1976) 424 U.S. 409, 430, 96 S.Ct. 984, 995, 47 L.Ed.2d 128;  see also Whelehan v. County of Monroe (W.D.N.Y.1983) 558 F.Supp. 1093, 1100–1101;  Donald M. v. Matava (D.Mass.1987) 668 F.Supp. 703, 712.)

 The availability of immunity in actions under section 1983 is governed by federal law.  (Martinez v. California (1980) 444 U.S. 277, 284, 100 S.Ct. 553, 558, 62 L.Ed.2d 481.)   The courts have recognized two forms of immunity in this area.  “Qualified immunity shields only that conduct not violative of clearly established constitutional rights of which a reasonable person would have known.   Absolute immunity, in contrast, precludes any action for damages, so long as the challenged conduct falls within the scope of the immunity.”  (Austin v. Borel (5th Cir.1987) 830 F.2d 1356, 1358, fn. omitted.)

In Imbler v. Pachtman, supra, 424 U.S. 409, 96 S.Ct. 984, the United States Supreme Court held that prosecutors enjoy absolute immunity to section 1983 lawsuits because “[a] prosecutor is duty bound to exercise his best judgment both in deciding which suits to bring and in conducting them in court.   The public trust of the prosecutor's office would suffer if he were constrained in making every decision by the consequences in terms of his own potential liability in a suit for damages․  Further, if the prosecutor could be made to answer in court each time ․ a person charged him with wrongdoing, his energy and attention would be diverted from the pressing duty of enforcing the criminal law․  Frequently acting under serious constraints of time and even information, a prosecutor inevitably makes many decisions that could engender colorable claims of constitutional deprivation.   Defending these decisions, often years after they were made, could impose unique and intolerable burdens upon a prosecutor responsible annually for hundreds of indictments and trials.”  (Id. at pp. 424–426, 96 S.Ct. at pp. 992–993.)

 In Butz v. Economou (1978) 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895, the Supreme Court extended absolute immunity to executive branch officials authorized to initiate and conduct administrative hearings.   The Court emphasized that the existence of immunity depended not on the government official's status, but on his or her function.  (Id. at pp. 511–512, 98 S.Ct. at pp. 2913–2914.)   Applying the functional test, three circuits of the United States Court of Appeals, have held that where social workers in child dependency cases serve a quasi-judicial role, they should be afforded absolute immunity.  (Meyers v. Contra Costa County Dept. of Soc. Serv. (9th Cir.1987) 812 F.2d 1154, 1156;  Malachowski v. City of Keene (1st Cir.1986) 787 F.2d 704, 712;  Kurzawa v. Mueller (6th Cir.1984) 732 F.2d 1456, 1458;  see also federal district court decisions in Mazor v. Shelton (N.D.Cal.1986) 637 F.Supp. 330, 335;  Fogle v. Benton County SCAN (W.D.Ark.1987) 665 F.Supp. 729, 733–734;  Pepper v. Alexander (D.N.M.1984) 599 F.Supp. 523, 526–527;  Whelehan v. County of Monroe, supra, 558 F.Supp. 1093, 1098–1099.)

In Meyers, the court of appeals for the Ninth Circuit recognized that “[a]lthough child services workers do not initiate criminal proceedings, their responsibility for bringing dependency proceedings, and their responsibility to exercise independent judgment in determining when to bring such proceedings, is not very different from the responsibility of a criminal prosecutor.”   (Meyers v. Contra Costa County Dept. of Soc. Serv., supra, 812 F.2d 1154, 1157.)

Plaintiffs attempt to distinguish the instant litigation from the aforementioned line of decisions by arguing that their federal action is not based on the initiation of the dependency hearing.   Instead, they vigorously contend that defendants are entitled only to qualified immunity because the alleged deprivation of rights occurred during the investigative phase preceding initiation of the dependency proceeding.

Plaintiffs rely strongly on Austin v. Borel, supra, 830 F.2d 1356.   There, the court of appeals for the Fifth Circuit denied absolute immunity to Louisiana state child protection workers in a civil rights action which alleged that they filed a false verified complaint seeking the removal of two sisters from their parents.   Under Louisiana law, the presentation of a verified complaint authorized the “juvenile court ․ [to] issue an instanter order directing the child's removal from its parents' custody.”  (Id. at p. 1361.)   However, “[i]ssuance of an instanter order upon the filing of a verified complaint initiat[ed] custody, but only filing the petition itself initiates the adjudication process.”  (Ibid, fns. omitted.)   The court analogized the role of the social worker to that of a probation officer who mistakenly causes the arrest of a probationer.   The Austin court stated:  “[A] parole officer performs a function closely analogous to that of a police officer filing an affidavit seeking a warrant to arrest.   Since the parole officer's actions in this regard are functionally comparable to those of a police officer, he is only entitled to qualified immunity.” 4  (Austin v. Borel, supra, 830 F.2d at p. 1362.)

In Hodorowski v. Ray (5th Cir.1988) 844 F.2d 1210, the court held that Texas social workers, who temporarily removed children from their parents under state law without a prior court order, were entitled to only qualified immunity.  “[S]eizure without a court order in the face of an immediate danger seems to us more akin to the function of police than prosecutors.”  (Id. at p. 1214;  see also Robison v. Via (2d Cir.1987) 821 F.2d 913, 918–919.)   Also in Meyers v. Contra Costa County Dept. of Soc. Serv., supra, 812 F.2d 1154, 1157, the court extended only qualified immunity to a social worker who allegedly violated the rights of a father by illegally ordering him to vacate his home.  (But see Mazor v. Shelton, supra, 637 F.Supp. 330;  Whelehan v. County of Monroe, supra, 558 F.Supp. 1093;  and Hennessey v. State of Washington, Dept. of Social and Health Services, supra, 627 F.Supp. 137, all holding that social workers were absolutely immune to section 1983 actions based on the removal of children from their homes without prior court approval.)

Here, there is no contention that defendants made any arrests, removed the child from the home or in any manner impaired the liberty or restricted the movements of anyone.   The complaint alleges nothing more than investigative activity consisting primarily of questioning the child and her mother.

Plaintiffs cite us to Barbera v. Smith (2d Cir.1987) 836 F.2d 96.   There, the court of appeals stated:  “As we see it, the pre-litigation function that a prosecutor performs has at least two aspects:  (1) the supervision of and interaction with law enforcement agencies in acquiring evidence which might be used in a prosecution, and (2) the organization, evaluation, and marshalling of this evidence into a form that will enable the prosecutor to try a case or to seek a warrant, indictment, or order.   While both of these categories of activities occur before the commencement of formal legal proceedings, and therefore may be loosely termed ‘investigative,’ we believe that the first category consists of actions that are of a police nature and are not entitled to absolute protection, [citations].”  (Id. at p. 100, emphasis in original.)

In California, the evaluation and institution of dependency proceedings aimed at protecting children from physical and sexual abuse are uniquely the function of the probation officer whose activities are not nearly as diverse as that of the district attorney.

At the time defendants initiated the dependency proceeding, Welfare and Institutions Code section 300 declared that any person under the age of 18 years may be adjudged a dependent child of the juvenile court if his or her “home is an unfit place ․ by reason of neglect, cruelty, depravity, or physical abuse․”  (Welf. & Inst.Code, § 300, subd. (d).)  The code also commands that whenever a person lodges an affidavit alleging that a minor is a sexually abused child, the “probation officer shall immediately make such investigation as he deems necessary to determine whether proceedings in the juvenile court should be commenced.”  (Welf. & Inst.Code, § 329, emphasis added.)

State law specifically authorizes the probation officer to commence a dependency proceeding by filing a petition with the juvenile court.   (Welf. & Inst.Code, § 325;  Cal.Rules of Court, rule 1308, subd. (a)(1).) 5

Moreover, the probation officer who files the petition “shall be the guardian ad litem to represent the interests of the minor in [dependency] proceedings” unless otherwise ordered by the court.  (Welf. & Inst.Code, § 326.)   And, except where waived, “the probation officer shall be present in court to represent the interests of each person who is the subject of a petition to declare that person to be a ․ dependent child upon all hearings or rehearings of his or her case, and shall furnish to the court such information and assistance as the court may require.”  (Welf. & Inst.Code, § 280, emphasis added;  see also Welf. & Inst.Code, § 281.)

The probation officer does not supervise or interact with police agencies in acquiring evidence.   He or she organizes, marshalls and evaluates evidence all as a condition precedent to the commencement of a judicial proceeding and in so doing is exercising a function which equates with that of a prosecuting official.

Contrary to plaintiffs' contention, it matters not that the probation officer (in Los Angeles County, the head of the DCS) employs deputies who perform those various functions in his or her name or that the functions of organizing, marshalling and evaluating evidence and instituting judicial proceedings in any single case are performed by different individuals.

We think it clear that the alleged misdeeds of the individual defendants—issuing false and misleading reports, coercing untrue statements from a witness, drawing unsupported conclusions, and ignoring exculpatory evidence—if committed, arose while defendants were performing a function so intimately related to the judicial phase of the dependency hearing as to warrant absolute immunity.  (Whelehan v. County of Monroe, supra, 558 F.Supp. 1093, 1100–1101;  Donald M. v. Matava, supra, 668 F.Supp. 703, 712.)   Without absolute immunity to gather, analyze, preserve, organize, and evaluate evidence, social workers would be unduly hampered in their legislatively mandated duty to protect children from unfit homes through dependency proceedings.   As the Meyers court noted:  “The social worker must make a quick decision based on perhaps incomplete information as to whether to commence investigations and initiate proceedings against parents who may have abused their children.   The social worker's independence, like that of a prosecutor, would be compromised were the social worker constantly in fear that a mistake could result in a time-consuming and financially devastating civil suit.   We therefore hold that the social workers are entitled to absolute immunity in performing social workers quasi-prosecutorial functions connected with the initiation and pursuit of child dependency proceedings.”  (Meyers v. Contra Costa County Dept. of Soc. Serv., supra, 812 F.2d 1154, 1157.)   Considering the unique role that the DCS employees play in investigating, initiating, and participating in dependency proceedings, any lesser degree of immunity could impair the judicial process itself.  (Cf. Malley v. Briggs, supra, 475 U.S. 335, 343, 106 S.Ct. 1092, 1097.)   The investigation of which plaintiffs complain was within the scope of the DCS' “litigation-related duties.”  (Barbera v. Smith, supra, 836 F.2d 96, 100.)

 Turning to the county's liability under section 1983, we hold as a matter of law that the allegations in the second amended complaint here are insufficient to support a civil rights action against the county.6  As stated in Bouvia v. County of Los Angeles (1987) 195 Cal.App.3d 1075, 1087, 241 Cal.Rptr. 239:  “In order to successfully maintain an action under [section 1983] against governmental defendants for the tortious conduct of employees under federal law, it is necessary to establish that the conduct occurred in execution of a government's policy or custom promulgated either by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy.  [Citations.]”

In the present case, plaintiffs alleged in a strictly conclusionary fashion that the county “knowingly and intentionally promulgated, maintained and enforced policies, customs, practices and usages ․ to allow investigators to conduct their investigation in a reckless manner, to allow investigators to falsify evidence, and to ignore exonerating evidence․”  These bare allegations simply do not rise to the level of factual specificity required in section 1983 actions.  “Complaints relying on the civil rights statutes are plainly insufficient unless they contain some specific allegations of fact indicating a deprivation of civil rights, rather than state simple conclusions.”  (Koch v. Yunich (2d Cir.1976) 533 F.2d 80, 85.)   As the court in Kauffman v. Moss (3d Cir.1970) 420 F.2d 1270, 1276, fn. 15, stated:  “ ‘In recent years there has been an increasingly large volume of cases brought under the Civil Rights Acts.   A substantial number of these cases are frivolous ․;  they all cause defendants—public officials, policemen and citizens alike—considerable expense, vexation and perhaps unfounded notoriety.   It is an important public policy to weed out the frivolous and insubstantial cases at an early stage in the litigation․’ ”

The judgment is affirmed.


1.   The trial court also sustained a general demurrer to the causes of action commenced under various state theories.   The court found that those counts were barred by immunities and privileges afforded pursuant to state law.

2.   Plaintiffs named Sandra as a defendant;  however, she is not a party to this appeal.

3.   By necessity, plaintiffs must allege that Chaffee and Yeo conspired with Wenzel in order to state a section 1983 action against them.   Supervisory personnel cannot be held liable under the doctrine of respondeat superior.  (Myers v. Morris (8th Cir.1987) 810 F.2d 1437, 1464;  Monell v. New York City Dept. of Social Services (1978) 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611;  Hennessey v. State of Wash., Dept. of Social and Health Services (E.D.Wash.1985) 627 F.Supp. 137, 140–141.)

4.   In deciding claims of immunity, the Supreme Court begins its analysis by determining “whether an official claiming immunity under § 1983 can point to a common-law counterpart to the privilege he asserts.   [Citation.]  If ‘an official was accorded immunity from tort actions at common law when the Civil Rights Act was enacted in 1871, the Court next considers whether § 1983's history or purposes nonetheless counsel against recognizing the same immunity in § 1983 actions.’ ”  (Malley v. Briggs (1986) 475 U.S. 335, 339–340, 106 S.Ct. 1092, 1095–1096, 89 L.Ed.2d 271.)   In Malley, a police officer argued that he should be accorded absolute immunity under section 1983 for allegedly seeking an illegal arrest warrant.   He argued that his function was similar to that served by a complaining witness.   The Court rejected the argument on the ground that in 1871 the common law only afforded complaining witnesses limited immunity.  (Id. at pp. 340–341, 106 S.Ct. at p. 1096.)

5.   Here, the Los Angeles County Board of Supervisors has delegated the statutory duties of the probation officer in regard to child abuse to the head of the DCS.  (Los Angeles County Code, § 2.38.050;  Welf. & Inst.Code, § 272.)

6.   The trial court's minute order reveals that the court also immunized the county from a section 1983 lawsuit.   This was error.   In Owen v. City of Independence (1980) 445 U.S. 622, 657, 100 S.Ct. 1398, 1418, 63 L.Ed.2d 673, the United States Supreme Court held that local governments are not immune from damage liability under section 1983.   (See also Ybarra v. Reno Thunderbird Mobile Home Village (9th Cir.1984) 723 F.2d 675, 681.)Nevertheless, “ ‘․ [n]o rule of decision is better or more firmly established by authority, nor one resting upon a sounder basis of reason and propriety, than that a ruling or decision, itself correct in law, will not be disturbed on appeal merely because given for a wrong reason.   If right upon any theory of the law applicable to the case, it must be sustained regardless of the considerations which may have moved the trial court to its conclusion.’  [Citation.]”  (D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 19, 112 Cal.Rptr. 786, 520 P.2d 10.)

COMPTON, Acting Presiding Justice.

GATES and FUKUTO, JJ., concur.