Gregory Murray v. Sandra Andrade, individually

* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The Honorable Louis H. Pollak, Senior United States District Judge for
the Eastern District of Pennsylvania, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GREGORY MURRAY,
Plaintiff-Appellant,
v.
SANDRA ANDRADE, individually and in
her official capacity as social worker for
the County of Contra Costa,
Defendant-Appellee.
No. 09-16901
D.C. No. 3:08-cv-01539-TEH
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Thelton E. Henderson, District Judge, Presiding
Argued and Submitted October 7, 2010
San Francisco, California
Before: REINHARDT and BERZON, Circuit Judges, and POLLAK, Senior
District Judge.**
Murray appeals from the District Court’s order granting summary judgment
to Andrade on two independent grounds, namely, judicial estoppel and absolute
FILED
DEC 06 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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immunity. For the reasons that follow, we vacate and remand to the District Court
for further proceedings.
I. Background
Gregory Murray brings this § 1983 suit against Sandra Andrade, a social
worker for Contra Costa County, for events arising out of his marriage to, divorce
from, and procreation with S.A.M. (resulting in a child, Baby J.). He alleges
Andrade violated his civil rights by not permitting him to take immediate custody
of Baby J. once she was removed from S.A.M.’s home, by placing Baby J. in foster
care, and by proceeding with dependency hearings.
Murray married S.A.M. in May 2005 in California, but he left for Florida
and filed for divorce in the summer of 2005. During the Florida divorce
proceedings, he claimed that there were no children born of the marriage, denied
that S.A.M. was pregnant, and denied paternity of any unborn child S.A.M. might
be carrying. He maintained this position through the final Florida judgment of
divorce in October 2006, which expressly concluded that no children were born of
the marriage.
At the same time, the Children and Family Services Bureau of Contra Costa
County was involved with S.A.M. and Baby J. after the mother tested positive for
drugs at the child’s birth in February 2006. By summer of 2006, Andrade had

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initiated dependency proceedings, S.A.M.’s children had been removed from
S.A.M.’s custody to foster care, and court hearings were scheduled to place Baby J.
and her siblings in adoptive homes permanently. There is a dispute between
Murray and Andrade as to the nature of their communications during this period,
whether he was provided notice of the dependency proceedings prior to October
2006, whether he was referred to counsel, and whether he had an opportunity to
appear to assert his parental rights. Murray eventually appeared in the dependency
proceedings with counsel in March 2007, and by August 2007, Baby J. was placed
in his custody and has been ever since.
In March 2008, Murray brought this § 1983 suit against Andrade (and others
who were later dismissed from the case). Andrade moved for summary judgment,
which the District Court granted on two independent grounds: first, the District
Court applied the doctrine of judicial estoppel, precluding Murray from asserting
the claims based on his asserted paternity because he had contemporaneously
advanced a contrary position in the Florida court proceedings; second, the District
Court held that Andrade was entitled to absolute immunity because her acts were
part of her quasi-prosecutorial function of initiating and pursuing child dependency
proceedings. Judge Henderson expressly did not reach the question of qualified
immunity. Murray now appeals the District Court’s grant of summary judgment.

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1 The three factors are: (1) the party’s later position “must be ‘clearly
inconsistent’” with its earlier position; (2) whether the party has succeeding in
persuading a court to accept that party’s earlier position; and (3) whether the party
seeking to assert an inconsistent position would derive an unfair advantage or
impose an unfair detriment on the opposing party if not estopped. 532 U.S. at
750–51.
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II. Analysis
A. Judicial estoppel
The District Court’s first ground for granting summary judgment was
judicial estoppel. We disagree that this was an appropriate case for application of
that doctrine. See New Hampshire v. Maine, 532 U.S. 742, 750–51 (2001)
(identifying three non-exhaustive factors1 that “typically inform the decision
whether to apply [judicial estoppel] in a particular case”). Murray’s claims in this
suit are premised not on his actual paternity of Baby J., which he contested
successfully in the Florida courts, but on his status as an alleged or presumed father
entitled to notice of juvenile proceedings pursuant to California law. See Cal. Fam.
Code § 7611(a); Cal. Welf. & Inst. Code §§ 290.1(a)(2), 290.2(a)(2). Accordingly,
the District Court erred in finding his litigation position “clearly inconsistent” with
the position taken in the Florida courts.
B. Absolute immunity

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The District Court held in the alternative that Andrade had absolute
immunity. We disagree and hold that the District Court erred in granting summary
judgment on the basis of absolute immunity because a genuine issue of material
fact exists as to whether Murray actually received notice from Andrade. See Fed.
R. Civ. P. 56(c)(2). Providing notice to alleged fathers is not a discretionary act
under California law, see Cal. Welf. & Inst. Code § 290.1(a)(2) (the “social worker
shall serve notice. . . [to] [t]he father or fathers, presumed and alleged.” (emphasis
added)), and it is not akin to the types of “quick decision[s] based on perhaps
incomplete information as to whether to commence investigations and initiate
proceedings against parents who may have abused their children” for which we
have afforded social workers a quasi-prosecutorial absolute immunity. Meyers v.
Contra Costa Cnty. Dep’t of Soc. Servs., 812 F.3d 1154, 1157 (9th Cir. 1987).
Thus, if Andrade did not provide notice, she is not entitled to absolute immunity.
On the record before the District Court, summary judgment on absolute
immunity grounds was inappropriate. In the absence of other evidence, such as
certificates of service, copies of filings in juvenile court, or certified mail receipts,
the only evidence on the question of notice consisted of affidavits claiming or
denying service of notice. This credibility contest is not to be resolved at the
summary judgment stage. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255

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(1986) (“Credibility determinations, the weighing of the evidence, and the drawing
of legitimate inferences from facts are jury functions, not those of a judge . . . .
The evidence of the nonmovant is to be believed, and all justifiable inferences are
to be drawn in his favor.”). This case is therefore remanded to the District Court
for further proceedings.
C. Qualified immunity
Because the District Court did not rule on qualified immunity, we decline
the parties’ invitation to decide the issue at this time and leave it to the District
Court to evaluate in the first instance on remand.
III. Conclusion
For these reasons, we vacate the judgment of the District Court and remand
for further proceedings.
VACATED AND REMANDED.

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1
Murray v. Andrade, No. 09-16901
REINHARDT, Circuit Judge, dissenting:
During his divorce proceedings, Murray represented to the Florida courts
that he was not Baby J.’s natural father, presumably in an effort to avoid certain
financial obligations that would follow from a finding of paternity. Now, in an
effort to obtain money damages from a county social worker, he asserts that at the
same time he was representing to Florida courts that he was not Baby J.’s father, he
was entitled to a presumption under California law that he is Baby J.’s natural
father. See Cal. Fam. Code § 7611 (“A man is presumed to be the natural father of
a child if . . . .”) (emphasis added). Murray’s vigilance in asserting his presumed
parental rights in California makes it clear that “the [Florida] . . . court was misled”
when it concluded, at Murray’s urging, that he was not the natural father and that
no children were born of his marriage. New Hampshire v. Maine, 532 U.S. 742,
750 (2001) (quoting Edwards v. Aetna Life Ins. Co., 690 F. 2d 595, 599 (6th Cir.
1982)). Murray found one position convenient when it helped him avoid child
support payments, and another convenient when faced with the possibility that his
child would be placed in foster care. I would therefore hold that Murray’s
assertion of presumed fatherhood in this case is clearly inconsistent with his denial
of paternity in the Florida courts, and I certainly cannot agree with the majority
FILED
DEC 06 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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that the district judge abused his discretion in finding such to be the case.
Moreover, even if I agreed with the majority that California’s use of a
statutory presumption to determine natural paternity injects a degree of ambiguity
into the analysis of clear inconsistency, I still would not hold that the district judge
abused his equitable discretion in this case. Judicial estoppel “is an equitable
doctrine invoked by a court at its discretion.” Id. (quoting Russell v. Rolfs, 893
F.2d 1033, 1037 (9th Cir. 1990)). The Supreme Court has advised us that there are
no “inflexible prerequisites or an exhaustive formula” that governs the district
judge’s discretion to invoke judicial estoppel. Id. at 751. The facts here are quite
disturbing. Murray represented to the Florida courts that he was not Baby J.’s
father until he succeeded in obtaining a final divorce judgment finding that “no
children were born of the marriage” between Murray and Baby J.’s mother on
October 4, 2006, two months after Murray had informed a California agency of his
presumed paternity and asked for a paternity test. Accordingly, even if the
majority were correct that Murray’s position in this suit is not clearly inconsistent
with his denial of natural fatherhood in Florida courts, I would still hold that the
district judge acted within his equitable discretion in concluding that Murray’s
prior denial of paternity “firmly tip[s] the balance of equities in favor of barring”
this suit. Id.

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3
I respectfully dissent.

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