Amy Konstantelos v. Norm Hickling

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
AMY KONSTANTELOS, et al.,
Plaintiffs-Appellees,
v.
NORM HICKLING,
Defendant-Appellant.
No. 17-55970
D.C. No.
2:09-cv-06476-VAP-KK
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Virginia A. Phillips, Chief Judge, Presiding
Submitted October 10, 2018**
Pasadena, California
Before: SCHROEDER and NGUYEN, Circuit Judges, and WHELAN,*** District
Judge.
Norm Hickling appeals the district court’s order denying qualified immunity
as to the § 1983 claims against him, and California Penal Code section 11172(a)
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Thomas J. Whelan, United States District Judge for
the Southern District of California, sitting by designation.
FILED
OCT 26 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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immunity as to the state tort claim against him. We have jurisdiction pursuant to
28 U.S.C. § 1291 and the collateral order doctrine as set forth in Mitchell v.
Forsyth, 472 U.S. 511 (1985). Reviewing de novo, see Liberal v. Estrada, 632
F.3d 1064, 1073 (9th Cir. 2011), we reverse the district court and remand for entry
of judgment of dismissal as to Hickling.
Amy and Eric Konstantelos allege that Hickling, an employee of the Los
Angeles County Board of Supervisors, retaliated against them in violation of the
First Amendment and violated state tort law by making a false report to the Los
Angeles County Department of Children and Family Services (“DCFS”).
“[Q]ualified immunity shields officials from civil liability so long as their
conduct ‘does not violate clearly established statutory or constitutional rights of
which a reasonable person would have known.’ ” Mullenix v. Luna, 136 S. Ct.
305, 308 (2015) (quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009) (internal
quotation marks omitted)). “A clearly established right is one that is ‘sufficiently
clear that every reasonable official would have understood that what he is doing
violates that right.’ ” Id. (quoting Reichle v. Howards, 566 U.S. 658, 664 (2012)
(internal quotation marks omitted)). In California, state tort liability for voluntary
reporters of child abuse or neglect is predicated on (1) the falsehood of the report;
and (2) knowledge of the report’s falsity, or reckless disregard for its truth or

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falsity. See Cal. Penal Code § 11172(a); Dwight R. v. Christy B., 151 Cal. Rptr. 3d
406, 414 (Ct. App. 2013).
Viewing the factual record in the light most favorable to the Konstanteloses,
Hickling received a string of emails that implicated child safety, culminating in a
frantic voicemail from a child left at the behest of its mother. Hickling shared the
situation with a coworker who had previously worked with DCFS.
Even assuming the existence of a clearly established First Amendment right
under these circumstances, there is no evidence that Hickling contacted DCFS.
Nor is there evidence that when DCFS contacted him, he knowingly or recklessly
provided false information, as required for state tort liability.
We REVERSE and REMAND for entry of judgment of dismissal as to
claims against defendant Hickling on grounds of qualified immunity and California
Penal Code section 11172(a) immunity.

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