M.M. v. Koinonia Foster Homes, Inc.

M.M., a Minor, etc., Plaintiff and Appellant, v. KOINONIA FOSTER HOMES, INC., et al., Defendants and Respondents.

E074331

California Court of Appeals, Fourth District, Second Division

March 14, 2022

NOT TO BE PUBLISHED

APPEAL from the Superior Court of San Bernardino County Super. Ct. No. CIVDS1700467, Bryan F. Foster, Judge.

Law Offices of Garrotto & Garrotto and Greg W. Garrotto, for Plaintiff and Appellant.

ClouseSpaniac, Katharine L. Spaniac and Erin A. Halas, for Defendant and Respondent, Koinonia Foster Homes, Inc.

Beach Law Group, Thomas E. Beach, Mindee J. Stekkinger and Molly M Loy, for Defendants and Respondents, County of Los Angeles and Angela Sherzada.

OPINION

CODRINGTON, J.

I. INTRODUCTION

M.M.'s foster parents, Robert and Emily Ismael, were convicted of criminal offenses related to Mr. Ismael's physical abuse of M.M. M.M. sued Los Angeles County, her Los Angeles County social worker, and the foster care agency that placed her with the Ismaels for violating her federal civil rights. She also sued the foster care agency for negligence. The trial court sustained defendants' demurrers to M.M.'s civil rights claims without leave to amend and granted summary judgment to the foster care agency on M.M.'s negligence claims. M.M. appeals, and we reverse in part and affirm in part.

II.

FACTUAL AND PROCEDURAL BACKGROUND^[1]

In 2013, when M.M. was two years old and under the jurisdiction of the Los Angeles County juvenile court, her social worker at the Los Angeles County Department of Child and Family Services (the Department), Angela Sherzada, placed her with Koinonia Foster Homes, Inc. Koinonia is a private, non-profit foster care placement agency, which contracts with the County to provide services for foster children.

Koinonia certified the Ismaels' home as a licensed foster home and certified the Ismaels to be foster parents in December 2012. Koinonia placed M.M. and her sister with the Ismaels on November 22, 2013, where Koinonia had placed their brother about a month earlier.

During M.M.'s placement, Koinonia social workers consistently visited the children at the Ismaels' home. The social workers spoke with M.M. and her siblings and discussed any concerns. M.M. never reported any problems with Mr. Ismael, and the social workers did not observe any inappropriate behavior by him during the visits. The Ismaels reported, however, that M.M. had psychological and behavioral issues, including throwing tantrums, which Koinonia had disclosed to them before her placement. Because Koinonia could not authorize therapy for M.M., it contacted the Department to request therapy services for M.M. to address her behavioral and psychological issues.

Around February 24, 2014, the Ismaels were arrested after M.M. suffered burns all over her body. Mr. Ismael was charged and convicted of child cruelty with a great bodily injury enhancement and Mrs. Ismael pled guilty to disturbing the peace.

M.M. sued the County, Sherzada, Koinonia, and the Ismaels.^[2] In her First Amended Complaint, M.M. asserted claims against the County and Sherzada, and Koinonia under 42 U.S.C. section 1983 (section 1983) for alleged violations of her civil rights. She also alleged two negligence claims against Koinonia.

After Koinonia and Sherzada's successful demurrers, M.M. filed a Second Amended Complaint (SAC) in which she again asserted claims against the County and Sherzada under section 1983 for violating her civil rights and two negligence claims against Koinonia. Defendants demurred to M.M.'s section 1983 claims, and the trial court sustained the demurrers without leave to amend as to Koinonia, but with leave to amend as to the County and Sherzada.

In her operative Third Amended Complaint (TAC), M.M. again alleged section 1983 claims against the County and Sherzada and two negligence claims against Koinonia. The County and Sherzada demurred to the TAC, which the trial court sustained without leave to amend. The trial court later granted summary judgment to Koinonia on M.M.'s negligence claims and entered judgment for defendants. M.M. timely appealed.

III. DISCUSSION

M.M. contends the trial court erroneously sustained Sherzada's and the County's demurrers without leave to amend and improperly granted summary judgment for Koinonia. We agree as to M.M.'s claims against Sherzada, but disagree as to her claims against the County and Koinonia.

A. M.M.'s Section 1983 Claims Against The County

M.M. alleged two section 1983 claims against the County. In the first one, the TAC's third cause of action, M.M. alleges that the County, through Sherzada and her unidentified supervisors, violated her federal constitutional rights by failing to provide for her serious medical needs. M.M. alleges that Sherzada and her supervisors knew that she had a serious medical need for therapy, yet they failed to obtain it for her. In her second section 1983 claim against the County, she alleges that the County violated her federal constitutional rights by failing to protect her from the Ismaels.

"On appeal, a plaintiff bears the burden of demonstrating that the trial court erroneously sustained the demurrer as a matter of law. . . . Because a demurrer tests the legal sufficiency of a complaint, the plaintiff must show the complaint alleges facts sufficient to establish every element of each cause of action. . . . [¶] When a demurrer is sustained without leave to amend, this court decides whether a reasonable possibility exists that amendment may cure the defect; if it can we reverse, but if not we affirm. (Rakestraw v. California Physicians' Service, supra, 81 Cal.App.4th at p. 43.)

The County may not be held liable under section 1983 "under a theory of respondeat superior for the actions of its subordinates." (Castro v. County of Los Angeles (9th Cir. 2016) 833 F.3d 1060, 1073 (en banc).) But it may be liable for its employees' constitutional violations under Monell v. New York City Dept. of Social Services (1978) 436 U.S. 658 (Monell). To state a Monell claim, "[t]he plaintiff must establish that: (1) the plaintiff was deprived of a constitutional right; (2) the government entity had a policy; (3) this policy amounted to deliberate indifference to the plaintiff's constitutional right; and (4) the policy was the moving force behind the constitutional violation." (Perry v. County of Fresno (2013) 215 Cal.App.4th 94, 105-106.)

The County asserts M.M. fails to state a Monell claim because the TAC contains no allegations that the alleged violations of her constitutional rights-the County's alleged failure to obtain therapy services for her and to protect her from the Ismaels- were caused by a County policy, practice, or custom. We agree.

In the TAC, M.M. alleges Sherzada and her supervisors knew her Medi-Cal insurance had elapsed yet failed to renew it. She also alleges Sherzada and her supervisors knew M.M. needed therapy for her behavioral and psychological issues because the Ismaels had requested it, but Sherzada and her supervisors failed to obtain it for her. When Sherzada and/or her supervisors eventually authorized therapy services for M.M., the provider placed her on a waiting list and did not see her before Mr. Ismael's abuse. M.M. asserts the abuse would not have occurred had she timely received therapy.

But M.M. also alleges that Sherzada and her supervisors were "aware that according to policies and procedures, they were mandated under law to authorize any therapy and or counseling." Thus, according to M.M.'s own allegations, Sherzada and her supervisors were not following any County policy, practice, or custom when they failed to obtain therapy services for M.M. Rather, M.M. alleges that County policy required Sherzada and her supervisors to authorize those services. In other words, the TAC failed to allege that a County policy, practice, or custom caused M.M. not to receive therapy in violation of her constitutional rights.

The TAC likewise fails to identify any applicable County policy, practice, or custom that was the "moving force behind" the County's alleged failure to protect M.M. from the Ismaels. The thrust of M.M.'s failure-to-protect claim is that Sherzada placed M.M. in the Ismaels' home "knowing that they were not appropriate foster parents and failed to appropriately monitor the placement," which put M.M. at a substantial risk of serious harm. But the claim does not allege Sherzada was following any specific County policy, practice, or custom that caused her to knowingly place M.M. in a dangerous home. The claim also does not allege any facts suggesting that Sherzada failed to adequately monitor M.M.'s placement because she was following a County policy, practice, or custom.

In fact, M.M. alleges that County regulations and its contract with Koinonia mandated that Sherzada and her supervisors place M.M. in a safe foster home and monitor her placement to ensure her safety and well-being. Moreover, the TAC's allegations also relate only to M.M.'s experience with Sherzada and her alleged failure to protect M.M. and obtain medical care for her. Her alleged failures, without more, do not reveal adherence to any policy, practice, custom of similar behavior. (See City of Oklahoma City v. Tuttle (1985) 471 U.S. 808, 841-842 ["'Proof of a single incident of unconstitutional activity is not sufficient to impose liability under Monell, unless proof of the incident includes proof that it was caused by an existing, unconstitutional municipal policy, which policy can be attributed to a municipal policymaker.'"].)

In sum M.M. failed to allege a valid Monell claim against the County. Because M.M. does not attempt to explain in her opening brief how she could amend the TAC to state a viable Monell claim, we conclude...