[00:00:00] Speaker 00:
Good morning.

[00:00:00] Speaker 00:
May it please the court.

[00:00:01] Speaker 00:
My name's Robert Powell.

[00:00:03] Speaker 00:
I'm attorney for the plaintiffs, essentially the entire O'Neill family, except for Danny, a stepfather, and accompanied by Sam Park, who's co-counsel in this matter.

[00:00:13] Speaker 00:
We feel this case is an indication that no matter what this court does, the kind of judicial deception is going to continue.

[00:00:24] Speaker 00:
In our brief, we've given you six cases.

[00:00:26] Speaker 00:
There's several more.

[00:00:28] Speaker 00:
It is being resoundingly said, stop lying, and it's not being heard.

[00:00:33] Speaker 00:
In this case, one of the biggest issues in the small group of colleagues who do this work seems to be the safety plan.

[00:00:41] Speaker 02:
With respect, sir, I wrote a case not too long ago that did just the opposite.

[00:00:46] Speaker 02:
But in that case, we had definite facts

[00:00:50] Speaker 02:
backed it up with materiality.

[00:00:52] Speaker 02:
And what I struggle with in this case is you make these allegations, and they're serious allegations, there clearly was some misrepresentations, but you've got to show that this was not, you know, it's got to be intentionally or recklessly done, and that's what I'm missing.

[00:01:09] Speaker 02:
Where is that information?

[00:01:12] Speaker 00:
We have information in the brief about Mrs. Stark's, all the things that she left out that she definitely... And I can see that.

[00:01:20] Speaker 02:
There are a number of things she left out, but there are lots and lots and lots of things that were in that the trial judge, the judge that issued the warrant, could have looked at and said, that's enough.

[00:01:34] Speaker 02:
So what I'm struggling with is why is what was left out so material that it constitutes a judicial deception?

[00:01:43] Speaker 02:
As judges, we hear lots of things.

[00:01:46] Speaker 02:
Lawyers are there to advocate for their clients, and they will put the best spin on it they possibly can.

[00:01:52] Speaker 02:
That's their job.

[00:01:54] Speaker 02:
But what I'm struggling with here is why was this misrepresentation?

[00:01:59] Speaker 02:
And there was some material.

[00:02:01] Speaker 00:
I don't get it, so help me with that, please.

[00:02:05] Speaker 00:
Okay.

[00:02:06] Speaker 00:
First, I appreciate the court's acknowledgement that there are material misrepresentations.

[00:02:10] Speaker 00:
We do.

[00:02:10] Speaker 00:
At least I do.

[00:02:11] Speaker 00:
And we did have those in there.

[00:02:13] Speaker 00:
Why, when you ask about the material, you're talking about the particular failure to the untruth about the safety plan.

[00:02:22] Speaker 00:
That untruth, is that the one you're specifically asking about?

[00:02:24] Speaker 02:
And yet a day or two later, there was an email back to remind them about the very thing you're talking about.

[00:02:31] Speaker 02:
And it was contrary to what you're saying.

[00:02:34] Speaker 02:
So there might have been confusion.

[00:02:37] Speaker 02:
These folks have a tough job.

[00:02:38] Speaker 02:
They really do.

[00:02:41] Speaker 02:
Maybe there was a miscommunication, but materiality, deception.

[00:02:46] Speaker 02:
Help me with this, please.

[00:02:46] Speaker 00:
I will help you with it.

[00:02:48] Speaker 00:
So understand, up until the date of the 12th, when they acted upon the warrant that was obtained on the 8th, we had children who had been in the care of their grandparents doing fine.

[00:02:59] Speaker 00:
No problem, no violence, no nothing.

[00:03:02] Speaker 00:
Parents visiting, according to Ms.

[00:03:04] Speaker 00:
Contineo, whose statements to the social worker are not expressions of fact and should not be treated as such.

[00:03:10] Speaker 00:
They're just like a

[00:03:11] Speaker 00:
General conclusion.

[00:03:12] Speaker 00:
So we have the children who are doing fine.

[00:03:15] Speaker 00:
Now, Ms.

[00:03:17] Speaker 00:
Cattaneo appears upset.

[00:03:19] Speaker 00:
She gives her expression of the children are being coached.

[00:03:22] Speaker 00:
Nothing's changed.

[00:03:23] Speaker 00:
That's the only thing that's changed.

[00:03:24] Speaker 00:
There's not a factual assertion about it.

[00:03:26] Speaker 00:
There's no effort by the social worker.

[00:03:28] Speaker 00:
I think it's reckless when you're still in an investigation.

[00:03:31] Speaker 00:
Because remember, Mrs. Stark says that the reason that they're not supposed to be around the parents that much is so that they don't ruin the investigation.

[00:03:40] Speaker 00:
and then say, oh, I didn't think it was material that I pay attention to the safe interview of the child by the skilled professional.

[00:03:48] Speaker 02:
Remember, with respect, counsel, the law, as I understand it, is you've got to show that the missing or incorrect information in this case

[00:04:02] Speaker 02:
was such that when you consider all the other information that the judge who issued the warrant had, that the result would have been different, right?

[00:04:09] Speaker 02:
Do you agree with that?

[00:04:10] Speaker 02:
Isn't that the standard?

[00:04:12] Speaker 02:
Generally, yes.

[00:04:13] Speaker 02:
Okay, so help me with that.

[00:04:15] Speaker 02:
In what way would the result have changed if the information that you talk about had been accurately presented?

[00:04:25] Speaker 00:
Well, then what happened here was exactly what Liston talks about, what Scanlon

[00:04:31] Speaker 00:
Iterated recently is the denuding of the meaning of the probable cause requirement.

[00:04:37] Speaker 00:
There is a lengthy list I thought about asking if I might just go through it I can do it pretty quick even though to make sure that we are it's your time We're excited to hear everything you want to say excited All right the three officers come out they leave take no children We think that is hugely material three trained law enforcement officers come out don't take the children there their report is quoted

[00:05:01] Speaker 00:
And yet the court is not told that no children were taken.

[00:05:05] Speaker 00:
They were left in the home with the parents.

[00:05:07] Speaker 00:
There's no marks on the child, D.O.

[00:05:10] Speaker 00:
There are pictures in the record.

[00:05:11] Speaker 00:
His neck is pristine, which is impossible.

[00:05:15] Speaker 00:
And that's on the night of the call.

[00:05:18] Speaker 00:
All the children feel safe at home.

[00:05:21] Speaker 00:
And let me point that out.

[00:05:22] Speaker 00:
In every other area of this child dependency litigation, which only I and about 11 other people in the state of California do, it is a particularized approach.

[00:05:30] Speaker 00:
You don't just say, oh, I'm taking your one kid, I'm taking them all.

[00:05:34] Speaker 00:
Truth of the matter is they do, but that's a case that's on its way to you now.

[00:05:39] Speaker 00:
All of them feel safe at home.

[00:05:42] Speaker 00:
Original referral, evaluate it out.

[00:05:45] Speaker 00:
You don't think the judge would want to know that?

[00:05:47] Speaker 00:
Wait a minute, you guys heard about this case, and you evaluated it out, and now you want me to issue a warrant to have the kids taken from their home?

[00:05:54] Speaker 00:
They're very home.

[00:05:56] Speaker 05:
I'm still not seeing how any of this is relevant to whether or not Starks intentionally or recklessly lied.

[00:06:03] Speaker 00:
Well, don't you think the sheer number alone is indicative of reckless disregard?

[00:06:08] Speaker 05:
I think it's more behind the scenes, but... I mean, it seems to me that looking at the evidence, she legitimately thought that there was a safety plan, and it just failed to make it to the document that was given to the family.

[00:06:20] Speaker 00:
Then we have a tribal issue of material fact on that.

[00:06:23] Speaker 00:
And that's what we briefed in our case as well.

[00:06:25] Speaker 05:
Well, I mean, the problem is I don't see any counter evidence to show that there was recklessness or intentionality.

[00:06:32] Speaker 05:
I mean, do you have any evidence of intentionality that you lied on purpose?

[00:06:35] Speaker 00:
Yes, we do.

[00:06:36] Speaker 00:
We have a delivered service log entry that says it was there.

[00:06:39] Speaker 00:
And then we have the safety plan, which it isn't there.

[00:06:42] Speaker 00:
And that right there indicates that there was some effort

[00:06:47] Speaker 00:
or the inference that we're entitled to as the non-moving party, is that that was an intentional act.

[00:06:52] Speaker 00:
It was at least reckless disregard.

[00:06:55] Speaker 05:
Well, I'm not sure about that.

[00:06:56] Speaker 05:
I think you need a little bit more.

[00:06:57] Speaker 00:
I mean, it could... It's a big deal when the thing goes to the court, and what they're arguing in their papers is that, oh, it's not a big deal, and yet that is what triggered... I think it was a big deal, but the problem is I just don't see it

[00:07:15] Speaker 05:
any evidence of recklessness or intentionality, which is what you need to prove, correct?

[00:07:21] Speaker 00:
Well, we have to show a substantial showing of reckless disregard for the truth, right?

[00:07:26] Speaker 00:
Or omissions, which, if you'll notice in the list of things, if I may continue, it's going to be all about omissions.

[00:07:32] Speaker 00:
Because as someone who practices in this area, that's the preferred way to lie.

[00:07:36] Speaker 00:
And that's why I asked the court to consider how many we're talking about here.

[00:07:39] Speaker 00:
It's not a little, it's a lot.

[00:07:41] Speaker 06:
Council, can you tell me about the change in the electronic case file that you're arguing that a court, a jury could infer happened recklessly or misleadingly?

[00:07:53] Speaker 06:
Yes, so they... Was the testimony just that it's possible to edit these things or did you have any facts you could point to that this had been done in this case?

[00:08:03] Speaker 00:
Well, you know, we can't show that it's had been done because unfortunately that's beyond the reach.

[00:08:06] Speaker 00:
The system that stores these delivered service logs only maintains them for 20 days.

[00:08:11] Speaker 00:
Okay.

[00:08:11] Speaker 00:
Where you could check that metadata.

[00:08:13] Speaker 00:
That's what I'm getting at.

[00:08:13] Speaker 06:
Is there any way for you to check that in discovery?

[00:08:15] Speaker 00:
Believe me, again, this is an area I've been fighting in for 27 years.

[00:08:19] Speaker 00:
Wish to God I could get them to keep that data because we would find it all the time.

[00:08:23] Speaker 00:
I've uncovered it in other cases because of someone admitted it.

[00:08:27] Speaker 00:
That's very rare, however, in these cases.

[00:08:29] Speaker 00:
So I do ask the court to look at this.

[00:08:31] Speaker 00:
The admission is rare.

[00:08:32] Speaker 00:
Yeah.

[00:08:33] Speaker 00:
People admitting that they've done wrong.

[00:08:35] Speaker 02:
If I just a few more of these things and in response to my colleagues question, then you are saying you simply alleged that it was possible to make a change, but you have no evidence that change was made electronically.

[00:08:47] Speaker 02:
Is that right?

[00:08:48] Speaker 00:
That's correct.

[00:08:49] Speaker 00:
But but we do have three other people there present whose testimony is in.

[00:08:54] Speaker 00:
Saying that the safety plan did not have that information in it and when does the call come about this or the text?

[00:09:01] Speaker 00:
It's a text When does the text go to the parents after Kata neo calls?

[00:09:06] Speaker 00:
And do you see any evidence in the text where she asks the very simple question?

[00:09:11] Speaker 00:
Hey, are you following the plan?

[00:09:14] Speaker 00:
She doesn't do that

[00:09:16] Speaker 00:
Kate, that also deserves for us, I believe, an inference of something else is going on.

[00:09:21] Speaker 00:
Something else is afoot.

[00:09:22] Speaker 02:
Well, that certainly is a suspicion.

[00:09:25] Speaker 02:
But as we've all pointed out here, you have to reach a much higher standard.

[00:09:29] Speaker 02:
You have to show intentionality or certainly serious recklessness.

[00:09:35] Speaker 02:
And where's that evidence?

[00:09:37] Speaker 00:
Well, I believe that this does weigh in at the very least as reckless disregard for the truth and the whole failure to even attend the safe interview when the complaint is, oh, we don't want you staying with the kids all the time because, you know, then you might compromise our investigations.

[00:09:56] Speaker 00:
But then Stark sits in her office when she could have went to the click and watched the safe center interview.

[00:10:02] Speaker 00:
To me, that screams reckless disregard.

[00:10:05] Speaker 00:
When you're talking about ripping families apart, we had four children taken from this mother.

[00:10:12] Speaker 00:
Four children.

[00:10:13] Speaker 05:
But the problem is, the warrant said that he was choked.

[00:10:17] Speaker 05:
The sister called the police because he was being choked.

[00:10:21] Speaker 05:
And it's not disputed that there has been incidences of violence in the past.

[00:10:28] Speaker 05:
So to me, that's enough to find probable cause.

[00:10:32] Speaker 00:
Well, it is, if you leave out the fact that the child denied being injured, which he told to Stark's face on December 24th.

[00:10:39] Speaker 00:
He told that to Stark's face, I was not injured.

[00:10:43] Speaker 00:
And in fact, the fact of failing to do your investigation, do a reasonable investigation.

[00:10:50] Speaker 00:
Something about reasonable investigation which seems to be so important under this law, under Wallace V Spencer and all the other warrantless cases, May versus County San Bernardino.

[00:11:00] Speaker 00:
seems to have somehow got lost when it comes to the investigations before you seek a protective custody warrant.

[00:11:08] Speaker 00:
I don't know if the court's aware of this.

[00:11:09] Speaker 00:
I assume Judge Smith has been here a while.

[00:11:13] Speaker 00:
There was an epic of the warrantless removals going on for decades until, again, me and 10 other people put a foot down.

[00:11:22] Speaker 00:
That took 10 years from when we started till that stopped.

[00:11:25] Speaker 00:
Now we see this.

[00:11:26] Speaker 00:
We see warrants absolutely

[00:11:28] Speaker 00:
filled, which is a funny word, because omission is the route.

[00:11:32] Speaker 00:
And there's just a couple more.

[00:11:33] Speaker 00:
May I about the omission?

[00:11:34] Speaker 02:
Actually, no, since you've got a rebuttal coming up, we're going to have to let your colleague do that for you.

[00:11:40] Speaker 02:
Unless either one of my colleagues has questions for you.

[00:11:43] Speaker 02:
Very well.

[00:11:43] Speaker 02:
Hopefully I've stressed the link.

[00:11:45] Speaker 02:
Thank you for your presentation.

[00:11:47] Speaker 02:
So I guess we're going to hear from Mr. Smith from the County of Sacramento.

[00:11:58] Speaker 03:
Good morning, your honors.

[00:11:59] Speaker 03:
My name is J. Scott Smith.

[00:12:02] Speaker 03:
I represent the defendant, Karen Starks, who was the one who filled out the warrant application.

[00:12:10] Speaker 03:
I think one of the things, and you heard counsel repeat it here today, he referred to, well, she didn't conduct a reasonable enough investigation.

[00:12:22] Speaker 03:
She didn't go to the

[00:12:24] Speaker 03:
to the safety plan meeting, or I mean to the safety center meeting, didn't watch the safety center meeting.

[00:12:33] Speaker 03:
That's not what she's being sued for.

[00:12:35] Speaker 03:
She's being sued for judicial deception.

[00:12:39] Speaker 03:
The warrant application on those points makes clear, doesn't say that, so when it talks about her knowledge of the events of what occurred,

[00:12:51] Speaker 03:
it makes clear that it comes entirely from Detective Catiano.

[00:12:56] Speaker 03:
It says that.

[00:12:57] Speaker 03:
Detective Catiano called me and said it appeared that they're being coached and it appears that the grandmother is living with them for up to six months.

[00:13:06] Speaker 03:
Now, we do know that the log entries, which there's

[00:13:12] Speaker 03:
testimony that they're supposed to be entered contemporaneously, state that she thought she'd talked about a safety plan where the parents would be substantially separated, which is, after all, the entire point.

[00:13:31] Speaker 03:
When she agreed, when the social worker agrees to have the children

[00:13:38] Speaker 03:
Put back into the home so that they could be with the grandmother and living at home, go to school, have a relatively normal life.

[00:13:44] Speaker 03:
The idea is to create a separation.

[00:13:47] Speaker 05:
So why was that not in the plan given to the family?

[00:13:51] Speaker 03:
It appears to have just been a mistake.

[00:13:54] Speaker 05:
So she thought that she did tell them that any visitation had to be remote.

[00:14:00] Speaker 03:
Her recollection was that she spoke with them about it.

[00:14:05] Speaker 03:
Because if you recall that the safety plan itself just has a little written section.

[00:14:10] Speaker 05:
But it could have been very easily put that visitation should be remote or something.

[00:14:14] Speaker 03:
I don't disagree that it could have been.

[00:14:16] Speaker 03:
But it was something that was omitted.

[00:14:19] Speaker 03:
I think you were right earlier.

[00:14:23] Speaker 03:
There's no evidence that suggests that this was some kind of intentional effort to mislead the court.

[00:14:33] Speaker 03:
Council talks about the fact that the warrant application did not say that the AO didn't show marks or bruises.

[00:14:43] Speaker 03:
Well, it didn't say that he had either.

[00:14:45] Speaker 03:
And more significantly, to a judge doing these types of warrant applications, the lack of that statement would be apparent.

[00:14:58] Speaker 03:
And it's also not something that contradicts the statements that she received from the older sister, that this sort of thing was happening all the time to the two younger children.

[00:15:10] Speaker 05:
But Counsel, the best argument on the other side, though, what prompted the warrant was the fact that the agent said that the kids were being coached.

[00:15:18] Speaker 03:
Correct.

[00:15:18] Speaker 05:
Right?

[00:15:19] Speaker 05:
And in violation of the safety plan.

[00:15:22] Speaker 05:
It turns out that wasn't in violation of the safety plan.

[00:15:25] Speaker 03:
being coached certainly isn't.

[00:15:28] Speaker 03:
And that is that's the more critical component is that they're spending six hours a day and during that six hours a day it appears that they are influencing the children.

[00:15:38] Speaker 06:
Wasn't there a brochure that was left telling the parents that they should talk to children to prepare them about what's going to happen next.

[00:15:48] Speaker 03:
That isn't something that I recall that the social worker other than to say

[00:15:55] Speaker 03:
that there will be a process going on.

[00:15:58] Speaker 03:
But it is where the statement that Detective Cariano gave or said to the social worker was, he appears to have been coached as to what to say.

[00:16:13] Speaker 03:
And that's what she put in the warrant, is Detective Cariano appears that he has been coached.

[00:16:19] Speaker 03:
So when you add all those combination of events together,

[00:16:25] Speaker 03:
it appeared to her from the information that she got from the talk to Catiano that indeed they were they may be that they're putting pressure on the children perhaps to cover this up.

[00:16:37] Speaker 03:
Recall that one of the statements that the older sister A.O.

[00:16:41] Speaker 06:
Are you essentially saying that the plaintiffs are bringing are blaming the wrong person and they should have they should be blaming the judicial officer who issued the warrant for not digging enough into this game of telephone as opposed to suing your client.

[00:16:55] Speaker 03:
I think that that is that is at the heart of their case is that they are unhappy that the warrant was issued on what they believe is insufficient information.

[00:17:07] Speaker 03:
You know because recall that you know just a few days later there was a hearing where the parents were represented by counsel and the court and that and they raised these issues and that judge

[00:17:22] Speaker 03:
looked at this and even said, made two findings.

[00:17:26] Speaker 03:
One, he made the jurisdictional finding that a prima facie case of potential abuse or neglect existed to bring the children within the jurisdiction of the dependency court.

[00:17:40] Speaker 03:
And two, that the court made a specific finding that it could not see a reasonable way to keep the children safe other than their continued removal from the home.

[00:17:51] Speaker 03:
When these things were, so.

[00:17:54] Speaker 05:
But that's the other warrant that matters, right, here.

[00:17:58] Speaker 05:
And my thought is, you're right, coaching is pretty bad.

[00:18:03] Speaker 05:
But coaching in violation of a safety plan, why doesn't that increase the badness of the situation, or at least heighten the problems with the situation so that omission was material?

[00:18:16] Speaker 03:
It does.

[00:18:18] Speaker 03:
And when the safety plan did, in fact,

[00:18:22] Speaker 03:
Tell them that they are not to discuss.

[00:18:26] Speaker 05:
No, but the remote part is the problem.

[00:18:28] Speaker 05:
I'm sorry what the remote part of the safety plan was the problem.

[00:18:31] Speaker 03:
I don't necessarily think that that's that just because it was done remotely or not remotely.

[00:18:38] Speaker 05:
It raises the specter that they're just not following the safety plan.

[00:18:43] Speaker 03:
It does raise the specter that they're not following the safety plan.

[00:18:46] Speaker 05:
But in two ways.

[00:18:47] Speaker 05:
One is in the not coaching, and two, not having physical visitations or in-person visitations.

[00:18:53] Speaker 03:
Correct.

[00:18:55] Speaker 03:
But equally as important, even if you discount that there is this apparent dispute as to who remembered what, as to what in terms of the actual visitation,

[00:19:11] Speaker 03:
The clear intent of a safety plan like this is to create separation.

[00:19:16] Speaker 03:
When the parents are there six hours a day talking to the children, and after spending six hours a day with the children and then learning that and then learning from a telephone call from Detective Cardiano saying these children appear to have been coached, well, that creates a really strong inference that something

[00:19:41] Speaker 03:
wrong is occurring, that the children may very well be in danger.

[00:19:45] Speaker 06:
Hence... What's the standard that the judicial officer had to reach to issue the removal?

[00:19:51] Speaker 06:
Is it may well have been in danger or worry about being in danger?

[00:19:54] Speaker 03:
The standard is that there's probable cause to... It's a probable cause standard, so it's a greater... So to what?

[00:20:00] Speaker 06:
Probable cause for what?

[00:20:02] Speaker 03:
Probable cause that the children are at risk... That

[00:20:06] Speaker 03:
The children are in danger of serious physical or emotional abuse ongoing.

[00:20:17] Speaker 03:
And that's the standard that the judicial officer has to make.

[00:20:19] Speaker 03:
And the judicial officer makes that by looking at a warrant application that clearly states, in that last part, that she's bringing this warrant because of something that a detective told her

[00:20:36] Speaker 03:
about something that occurred during a safety meeting in common.

[00:20:40] Speaker 06:
Let me just ask this then.

[00:20:41] Speaker 06:
Do you think that a fact finder on these claims could make any sort of inference of recklessness at least or maybe intentionality when the virtual nature of a visit when the parents are the alleged abusers would seem to be the critical thing to do to prevent this substantial risk of abuse?

[00:21:06] Speaker 06:
Right.

[00:21:06] Speaker 06:
And for that not to be written down, this wasn't about, you know, it needs to be daylight hours or working hours.

[00:21:12] Speaker 06:
This was, will the alleged potential abusers be in the home?

[00:21:17] Speaker 06:
Do you think that just the importance of that fact could support a tribal issue?

[00:21:23] Speaker 03:
I don't believe so because I think that there isn't any evidence of a lack of intentionality.

[00:21:30] Speaker 03:
And I also don't believe that there's any evidence that that affects the materiality of this.

[00:21:38] Speaker 03:
When it turns out that the safety plan

[00:21:41] Speaker 03:
whether appropriately communicated or not, is not effectively creating separation between the parties.

[00:21:49] Speaker 03:
And that lack of separation is leading to apparent coaching.

[00:21:53] Speaker 03:
When you combine that with what was actually said, both to Ms.

[00:22:01] Speaker 03:
Starks when she interviewed the children and to the officers when they investigated it,

[00:22:08] Speaker 03:
that this was, that there was a long history.

[00:22:18] Speaker 03:
AO said that AO reported a story where the mother had, a month or two earlier, had pushed her little brother down.

[00:22:29] Speaker 03:
In that instance, tried to cover it up by saying he fell out of bed and cracked his head open.

[00:22:34] Speaker 03:
She described being held up against the wall and, quote, smacked in the face.

[00:22:40] Speaker 03:
And that she had been beaten so hard with a belt that she had to go to school wearing trousers so that the bruises wouldn't show.

[00:22:50] Speaker 02:
Counsel, let me ask you this.

[00:22:52] Speaker 02:
Shaking just for myself, I find that there are probably six different

[00:22:59] Speaker 02:
things that were communicated to the judge that were or not communicated that were arguably errors, arguably inaccurate.

[00:23:10] Speaker 02:
But the judge went ahead and issued the warrant anyway based upon other testimony.

[00:23:16] Speaker 02:
Is the standard that the judge used there basically taking what he or she knew at that time, whether there was probable cause based upon what was before that judge?

[00:23:28] Speaker 02:
Is that what we're looking at?

[00:23:29] Speaker 02:
Or is it if the other information were also presented, it would have changed the result?

[00:23:36] Speaker 03:
Well, the standard we're looking at is whether, if you're addressing, are you asking the question of whether or not the information is material, the emissions that

[00:23:46] Speaker 02:
Basically what I'm looking at, I ultimately want to get to qualified immunity.

[00:23:51] Speaker 02:
In other words, basically this seems to be a kind of a wishy area, a difficult area.

[00:23:59] Speaker 02:
There's no clear black and white issue.

[00:24:02] Speaker 02:
So let me just ask you point blank is under any circumstances would a case like this succeed in light of qualified immunity since the issue of the constitutionality is unclear?

[00:24:16] Speaker 03:
I don't think it does.

[00:24:18] Speaker 03:
I mean, the qualified, because under this instance, what you're talking about is what information does, this is not any of the circumstance of the cases that were cited in plaintiff's brief or their reply brief.

[00:24:30] Speaker 03:
This isn't like the Los Angeles County case where you had a, where you had a social worker who was found to be intentionally committing perjury, not only that, in suborning perjury, and a jury had previously found that.

[00:24:44] Speaker 03:
This is an instance where

[00:24:46] Speaker 03:
Is a social worker writing this warrant out?

[00:24:49] Speaker 03:
Is she constitutionally compelled to include, oh, I should add into this even though I don't think it's relevant because of all the other information I have?

[00:25:00] Speaker 02:
But what about the information that the judge was not aware of?

[00:25:03] Speaker 02:
Does that matter?

[00:25:04] Speaker 03:
It doesn't change the qualified immunity analysis.

[00:25:09] Speaker 03:
Because the qualified immunity analysis focuses on the constitutionally and unconstitutionality of her action and whether or not that was clear.

[00:25:16] Speaker 02:
Okay.

[00:25:17] Speaker 02:
Let's go over time.

[00:25:18] Speaker 02:
Let me ask my colleagues if they have additional questions.

[00:25:21] Speaker 02:
I think, thank you very much.

[00:25:23] Speaker 02:
We're going to hear now from your colleague, Mr. Paul.

[00:25:28] Speaker 02:
I got to represent the county.

[00:25:29] Speaker 02:
Is that right, Mr. Paul?

[00:25:31] Speaker 04:
No, Your Honor, for clarification.

[00:25:32] Speaker 02:
We can't hear you.

[00:25:33] Speaker 02:
We need to... We're not hearing you.

[00:25:37] Speaker 04:
County of Sacramento was dismissed and plaintiff did not pursue the county on appeal.

[00:25:46] Speaker 04:
For today's proceedings, I'll be representing Appellee Sasha Smith.

[00:25:49] Speaker ?:
Okay.

[00:25:51] Speaker 04:
Please proceed.

[00:25:53] Speaker 04:
May it please the court, Jonathan Paul, on behalf of Appellee Sasha Smith, this morning I'll be raising two points.

[00:25:59] Speaker 04:
First, that the appellants did not raise the argument of supervisory liability in opposition to the motion for summary judgment.

[00:26:06] Speaker 04:
and it should not be heard for the first time on appeal today.

[00:26:10] Speaker 04:
Second, as stated in Hartzell versus Marana Unified School, excuse me, not second, but as stated in Hartzell versus Marana Unified School District, arguments not raised in opposition to a motion for summary judgment are waived.

[00:26:24] Speaker 04:
Appellants did not argue in their motion for summary judgment opposition or during briefing at the motion for summary judgment hearing that Ms.

[00:26:31] Speaker 04:
Smith was liable as a supervisor for the acts of her subordinate Karen Stark.

[00:26:36] Speaker 04:
Notably in their opening brief, they cite to Maxwell versus County of San Diego for the proposition that a supervisor can be held liable for the acts of their subordinates if various acts are established.

[00:26:48] Speaker 04:
However, no such citation can be found within their opposition papers in the motion for summary judgment.

[00:26:54] Speaker 04:
Hence, it's clear that their theory of supervisory liability against Sasha Smith is raised for the first time on this appeal and the court should decline to hear those arguments.

[00:27:05] Speaker 04:
Secondly,

[00:27:07] Speaker 04:
Even assuming that those arguments were not waived, Appellant still cannot establish that Smith's liability for Smith is a supervising social worker because she had no knowledge of the misrepresentations and omissions allegedly made by Starks.

[00:27:22] Speaker 04:
As stated by the Maxwell Court, a supervisor can only be held liable for the acts of their subordinate if the supervisor knew of the subordinate's acts

[00:27:31] Speaker 04:
knew that the consequences of those acts would be a violation of plaintiff's rights, and the supervisor failed to act to prevent their support from engaging in such acts.

[00:27:42] Speaker 04:
Appellants have contended that Smith reviewed the safety plan, knew there was no mention about virtual visitation, confirmed that the terms of the safety plan must be in writing, and she knew it was possible for a social worker to change an entry in the CWS CMS system.

[00:27:58] Speaker 04:
Mere knowledge that a change can be made in the CWS CMS system does not logically support a finding that Smith knowingly ignored material misrepresentations in the warrant application that would have violated the appellant's rights.

[00:28:13] Speaker 04:
As was pointed out earlier in argument, there is no evidence in this case that there was actually a change to the records in the CWS CMS system.

[00:28:24] Speaker 04:
There's certainly no evidence that Smith was aware of any such change if it had occurred.

[00:28:30] Speaker 04:
Smith was Stark's supervisor.

[00:28:33] Speaker 04:
Her role was to discuss the case with the handling social worker.

[00:28:37] Speaker 04:
And when Starks drafted the reports for submission to the court, that's exactly what she did.

[00:28:42] Speaker 04:
She did not interact with or communicate with law enforcement.

[00:28:45] Speaker 04:
She did not review the delivered services logs, the audio recordings, video recordings, or police reports prior to signing the detention report.

[00:28:55] Speaker 04:
Smith was unaware that Dio had recanted and denied that his mother had choked him until the day of her deposition.

[00:29:01] Speaker 04:
Thus, appellants cannot show that Smith had knowledge of the alleged misrepresentations and omissions by Starks, and they do not cite to any evidence to suggest that she had any reason to doubt Starks' representations within the protective custody warrant application.

[00:29:18] Speaker 02:
Okay.

[00:29:18] Speaker 02:
Your time is up.

[00:29:19] Speaker 02:
Let me ask my colleagues any additional questions.

[00:29:22] Speaker 02:
Very well.

[00:29:23] Speaker 02:
Thank you, Mr. Paul.

[00:29:26] Speaker 02:
We now will hear rebuttal from Mr. Park.

[00:29:31] Speaker 01:
Thank you, Your Honor.

[00:29:32] Speaker 01:
May it please the Court, my name is Sam Park and I also represent the plaintiffs.

[00:29:37] Speaker 01:
Your Honor, when we look at the custody warrant, the box that was checked under 3B was that the children are in imminent danger of physical or sexual abuse and there are no reasonable means by which the children can be protected without temporary removal from the

[00:29:53] Speaker 01:
physical custody of the parents or children.

[00:29:56] Speaker 01:
There are five plaintiffs in this case.

[00:29:58] Speaker 01:
It's Fawn O'Neill and her four children.

[00:30:01] Speaker 01:
Two of the children, D.O.

[00:30:03] Speaker 01:
and A.O., there was some evidence or there was some information that they had been physically abused in the past.

[00:30:11] Speaker 01:
The other remaining two, A.T.

[00:30:12] Speaker 01:
and B.T., there was no such evidence at all.

[00:30:15] Speaker 01:
And so taking a look at this custody warrant as a whole,

[00:30:21] Speaker 01:
There is nothing in here that would sound as probable cause that either of those two children were in.

[00:30:28] Speaker 02:
So is it your position that if, and this is arguendo, let's assume that there was really strong evidence that two out of five children had been terribly abused.

[00:30:39] Speaker 02:
Is it your position that you have to leave the other three children there because there's no direct evidence that they have as yet been abused?

[00:30:49] Speaker 01:
I do believe that a particularized analysis would need to be undertaken for each child.

[00:30:54] Speaker 01:
A case law on that is where?

[00:30:57] Speaker 01:
I don't recall off the top of my head.

[00:31:02] Speaker 01:
I want to say it may be Keats v. Coyle, but that was a warrantless removal case.

[00:31:09] Speaker 01:
In one of the warrantless removal cases, I do recall that there's a particularized analysis.

[00:31:15] Speaker 02:
What I struggle with on this, I have a lot of kids of my own.

[00:31:19] Speaker 02:
When you have a family unit, you've got people being removed in part for alleged abuse.

[00:31:26] Speaker 02:
To leave the others there kind of defies logic to me because it's kind of an accident waiting to happen if you believe the allegations.

[00:31:39] Speaker 02:
And of course, this is just a warrant.

[00:31:42] Speaker 02:
So I'm not sure I'm comforted by your idea that everybody shouldn't have been included.

[00:31:48] Speaker 01:
Sir, Your Honor, I think there are different sorts of family dynamics.

[00:31:51] Speaker 01:
There may be cases where certain children may be more at risk than others.

[00:31:55] Speaker 01:
Oh, of course.

[00:31:55] Speaker 01:
Yeah.

[00:31:55] Speaker 01:
And so I do think that that sort of analysis needs to be undertaken.

[00:31:59] Speaker 02:
But that's an analysis that the judge has to do.

[00:32:01] Speaker 02:
And you've not charged the judge.

[00:32:02] Speaker 02:
You've charged the, if you will, the charging officer.

[00:32:06] Speaker 01:
Correct, Your Honor.

[00:32:08] Speaker 01:
The other thing I'd mention is that at the detention hearing, the judge is only looking at prima facie evidence, essentially looking at the sufficiency of the charging allegations.

[00:32:18] Speaker 01:
It's not an evidentiary hearing.

[00:32:20] Speaker 01:
So I know that the defendants are relying on the fact that the judge continued the detention at that point.

[00:32:29] Speaker 02:
But again, that's a fault of the judge, right?

[00:32:31] Speaker 02:
Not the charging party.

[00:32:35] Speaker 01:
Well, I don't know that it's the fault of the judge.

[00:32:38] Speaker 01:
It's the information that's presented to the judge and whether that's complete or not.

[00:32:42] Speaker 01:
In this case, for example, on the safety plan,

[00:32:47] Speaker 01:
The county's own policies indicate that everything must be in writing in the safety plan.

[00:32:51] Speaker 02:
Let's just assume that that was not done correctly.

[00:32:54] Speaker 01:
And it wasn't done.

[00:32:54] Speaker 01:
And by the time that they loop around and confirm and try to memorialize this in a telephone call to say that, oh yeah, by the way, there are these additional terms, you remember, right?

[00:33:05] Speaker 01:
Well, at that point, Ms.

[00:33:07] Speaker 01:
Starks knew to a certainty that those terms were not in the written safety plan.

[00:33:12] Speaker 02:
That's right.

[00:33:13] Speaker 02:
You're running out of time.

[00:33:13] Speaker 02:
So let me just ask you point blank.

[00:33:16] Speaker 02:
Why is this case not covered by qualified immunity?

[00:33:19] Speaker 01:
So there's no question.

[00:33:25] Speaker 01:
I think it's David versus Kaluki Kui.

[00:33:28] Speaker 01:
I think that says that it's beyond debate.

[00:33:30] Speaker 01:
You cannot act, you cannot perpetrate acts of judicial deception and be entitled to qualified immunity.

[00:33:36] Speaker 01:
I think even Chisholm says that.

[00:33:38] Speaker 02:
Oh, if indeed you have done that.

[00:33:40] Speaker 02:
But the question here is we like so many things that we deal with.

[00:33:44] Speaker 02:
This is not black, white, black, white.

[00:33:46] Speaker 02:
It's a mush.

[00:33:47] Speaker 02:
We've got different perspectives, different views, different allegations about what happened.

[00:33:52] Speaker 02:
Yes.

[00:33:52] Speaker 02:
And if we conclude that what we have here is mush, then you don't meet the requirements for Pearson, do you?

[00:34:01] Speaker 01:
So I guess what I was trying to point out was just on the issue of whether the law is clearly established or not, whether there's some question about that.

[00:34:12] Speaker 01:
I think this case turns on materiality and whether or not plaintiffs have... And materiality is not the issue under qualified immunity, is it?

[00:34:21] Speaker 01:
I don't believe it is.

[00:34:22] Speaker 02:
Okay, so I get back to my original question.

[00:34:25] Speaker 02:
If it's not clear

[00:34:27] Speaker 02:
that a constitutional violation has occurred, then the people you're charging have qualified immunity, right?

[00:34:37] Speaker 01:
I don't know if they'd be entitled to qualified immunity.

[00:34:40] Speaker 01:
I think what would happen under those circumstances is that the plaintiffs simply haven't carried their burden of proof.

[00:34:46] Speaker 02:
I don't think you're answering my question.

[00:34:48] Speaker 02:
You're artfully dodging it.

[00:34:49] Speaker 02:
But isn't the answer they would be entitled to qualified immunity under those circumstances?

[00:34:56] Speaker 01:
where it's murky.

[00:34:58] Speaker 02:
In other words, basically, if the law is really clear, and somebody willfully violates it, then they don't have qualified immunity.

[00:35:08] Speaker 02:
But the law's got to be clear.

[00:35:10] Speaker 02:
And the able counsel that you're with and other side, everybody's arguing, and it's not clear.

[00:35:17] Speaker 02:
There's discussion and debate about who did what, whose responsibility is what.

[00:35:23] Speaker 02:
So if it's not clear,

[00:35:25] Speaker 02:
Aren't these folks entitled to qualified immunity?

[00:35:29] Speaker 01:
So what's unclear may be the facts of the case, but the rights that are issued are clear.

[00:35:35] Speaker 01:
The right to familial association is clear.

[00:35:37] Speaker 01:
The right not to be lied about and perjured and have the submission of perjured testimony was clear.

[00:35:42] Speaker 01:
There may be some factual disputes, but again, I think the weight of the evidence suggests that, yeah.

[00:35:48] Speaker 02:
Very well.

[00:35:49] Speaker 02:
Thank you, Your Honor.

[00:35:49] Speaker 02:
Other questions by my colleagues?

[00:35:51] Speaker 02:
All right.

[00:35:51] Speaker 02:
Thanks to everyone.

[00:35:52] Speaker 02:
I know you feel very strongly about this, as you should.

[00:35:55] Speaker 02:
We appreciate your advocacy for your clients and the case just argued of O'Neill versus County of Sacramento at all is submitted.