Michael N. Jones, an individual; JILL JONES, an individual; G.J., an individual v. County of Los Angeles

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL N. JONES, an individual; JILL
JONES, an individual; G.J., an individual,
Plaintiffs-Appellees,
v.
COUNTY OF LOS ANGELES,
Defendant,
and
DR. CLAUDIA WANG, an individual,
Defendant-Appellant.
No. 12-55995
D.C. No.
2:11-cv-02851-SJO-VBK
MEMORANDUM *
Appeal from the United States District Court
for the Central District of California
S. James Otero, District Judge, Presiding
Argued and Submitted April 11, 2014
Pasadena, California
Before: N.R. SMITH and MURGUIA, Circuit Judges, and MCNAMEE,** Senior
District Judge.
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Stephen M. McNamee, Senior United States District
Judge for the District of Arizona, sitting by designation.
FILED
JAN 19 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Michael and Jill Jones, and their son, G.J. (collectively, the “Joneses”)
alleged that Appellant Dr. Claudia Wang (“Dr. Wang”) violated their Fourth and
Fourteenth Amendment rights and committed various torts during her investigation
into whether G.J. had been abused. Dr. Wang appeals the district court’s denial of
summary judgment based on her qualified immunity defense. We have jurisdiction
under 28 U.S.C. § 1291. Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). We review
de novo the district court’s denial of qualified immunity, Sorrels v. McKee, 290
F.3d 965, 969 (9th Cir. 2002). We affirm in part, reverse in part, and remand.
I.
On February 24, 2010, Mrs. Jones contends that while she was carrying her
infant son G.J. in her arms, she slipped and dropped G.J., who tumbled down the
stairs. The Joneses brought G.J. to the Emergency Department at the Santa Monica
UCLA Medical Center, where he was diagnosed with a severe head injury and
remained in the hospital for two days. Subsequently, G.J.’s injury was investigated
for child abuse. Dr. Wang, UCLA’s Suspected Child Abuse and Negligence
(“SCAN”) team medical director, asked the Joneses to bring G.J. to the UCLA
Westwood campus medical facilities on March 5, 2010 for further testing. The
testing did not reveal any additional head injuries; it did, however, reveal the
presence of bilateral rib fractures. Dr. Wang concluded that G.J.’s ribs had been
fractured after the accident and believed G.J’s injuries to be compatible with non-

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accidental trauma. The Commissioner of the Los Angeles County Department of
Children and Family Services (“DCFS”) would later disagree with Dr. Wang’s
conclusion.
It was then that Dr. Wang recommended that the Joneses admit G.J. to the
UCLA Medical Center in Santa Monica for further testing, even though the
additional tests could have been performed as outpatient procedures. While the
Joneses asked to take G.J. home, a DCFS social worker persuaded them to agree to
admit G.J. to the hospital for the weekend. The following Monday, Dr. Wang
asked the DCFS social worker to place a hospital hold on G.J., and a hold was
issued. The Joneses lost physical custody of G.J. for months pending the resolution
of the DCFS investigation and subsequent dependency proceedings. Ultimately,
the Commissioner presiding over the proceedings determined that G.J. had not
been abused and that there was no risk that G.J. would be abused in the future.
II.
The Joneses brought claims against Dr. Wang alleging that her conduct
violated two provisions of the Constitution that protect the parent-child
relationship from unwanted interference by the state: the Fourth and the Fourteenth
Amendments. Under the Fourteenth Amendment right to familial association, an
official who removes a child from parental custody without a warrant “must have
reasonable cause to believe that the child is likely to experience serious bodily

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harm in the time that would be required to obtain a warrant.” Rogers v. Cty. of San
Joaquin, 487 F.3d 1288, 1294 (9th Cir. 2007). The child subjected to seizure is
also protected by the Fourth Amendment’s prohibition against unreasonable
searches and seizures. Kirkpatrick v. Cty. of Washoe, 843 F.3d 784, 789 (9th Cir.
2016) (en banc). While the constitutional source of the parent’s and the child’s
rights differ, the tests under the Fourteenth Amendment and the Fourth
Amendment for when a child may be seized without a warrant are the same. Wallis
v. Spencer, 202 F.3d 1126, 1137 n.8 (9th Cir. 2000). The Constitution requires an
official separating a child from its parents to obtain a court order unless the official
has reasonable cause to believe the child is in “imminent danger of serious bodily
injury.” Id. at 1138.
In analyzing qualified immunity, we employ a two-prong analysis; we
determine whether the facts show the government actor’s “conduct violated a
constitutional right,” and “whether the right was clearly established” at the time of
the alleged unlawful action. See Saucier v. Katz, 533 U.S. 194, 201 (2001),
overruled in part by Pearson v. Callahan, 555 U.S. 223 (2009). “To determine
whether a right is clearly established, the reviewing court must consider whether a
reasonable [official] would recognize that his or her conduct violate[d] that right
under the circumstances faced, and in light of the law that existed at that time.”
Kennedy v. City of Ridgefield, 439 F.3d 1055, 1065 (9th Cir. 2006). In this case,

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we exercise our “sound discretion,” and decide the qualified immunity issue on the
second prong of the analysis, whether the right was clearly established. See
Pearson, 555 U.S. at 236. Therefore, we decline to determine whether Dr. Wang
seized G.J. without a warrant and in the absence of exigent circumstances. Instead,
we hold that Dr. Wang is entitled to qualified immunity because in March 2010
there was no clearly established case law that would have provided Dr. Wang with
“fair warning” that her actions would violate federal constitutional law. See
Kennedy, 439 F.3d at 1065.
At the time of Dr. Wang’s purported seizure of G.J., it was well-settled that
a child could not be removed from his or her parents without prior judicial
authorization, absent evidence that the child was in imminent danger of serious
bodily injury. See Rogers, 487 F.3d at 1297. At the same time, however, it was not
beyond debate that the totality of the circumstances surrounding Dr. Wang’s
purported seizure of G.J. would not support a finding of exigency or that this
purported seizure was otherwise unreasonable. See Ashcroft v. al–Kidd, 563 U.S.
731, 742 (2011) (noting that the Supreme Court has “repeatedly told courts—and
the Ninth Circuit in particular—not to define clearly established law at a high level
of generality” (citation omitted)). Sitting en banc in a similar case, we very
recently noted that there were no Ninth Circuit cases that “explain when removing
an infant from a parent’s custody at a hospital to prevent neglect, without a

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warrant, crosses the line of reasonableness and violates the Fourth Amendment.”
Kirkpatrick, 843 F.3d at 793 (distinguishing Rogers, 487 F.3d at 1291–93; Mabe v.
San Bernardino Cty., Dep’t of Pub. Soc. Servs., 237 F.3d 1101, 1108 (9th Cir.
2001); and Wallis, 202 F.3d at 1138, none of which involved infants or a seizure
that occurred in a hospital). Similarly, there is no Ninth Circuit or Supreme Court
case law that could have provided Dr. Wang with sufficiently fair notice that her
purported seizure of G.J. in order to investigate plausible child abuse, under the
circumstances in this case, would violate federal constitutional law. Without such
fair notice, we hold that Dr. Wang is entitled to qualified immunity.
III.
The Joneses also alleged various state law claims against Dr. Wang.1 Dr.
Wang asserted state statutory immunities in response to these claims. Dr. Wang is
entitled to immunity regarding all of the Joneses’ state law claims except the claim
of false imprisonment.
A. Immunity under California Government Code section 820.2 applies to the
discretionary act of a public employee if three requirements are met. First, the
employee must be vested with the authority to exercise discretion. Cal. Gov’t Code
1 Although we conclude that Dr. Wang is entitled to qualified immunity with
respect to the Joneses’ 42 U.S.C. § 1983 claims based on alleged violations of
federal constitutional law, “the doctrine of qualified immunity does not shield
defendants from state law claims.” Johnson v. Bay Area Rapid Transit Dist., 724
F.3d 1159, 1171 (9th Cir. 2013).

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§ 820.2. Second, the discretionary act in question must be a basic policy decision
rather than ministerial. Caldwell v. Montoya, 897 P.2d 1320, 1326 (Cal. 1995).
Third, the exercise of discretion must involve “a conscious balancing of risks and
benefits,” but need not be a “careful, thorough, formal, or correct evaluation.” Id.
at 1327 (emphasis omitted). These three requirements are met in this case.
Dr. Wang was vested with broad discretion to make recommendations in the
interest of G.J.’s safety. As the SCAN team medical director, Dr. Wang was
authorized to act as a child abuse pediatrician, which according to both parties
“requires recommendations for the safety of the child above all other
considerations.” Then, Dr. Wang exercised the broad discretion vested in her as a
child abuse pediatrician when she recommended to the Joneses that G.J. receive
further testing in the hospital even though the testing did not require
hospitalization. This decision was not ministerial, because it was based on Dr.
Wang’s “preliminary determination[] of the potential risk to [G.J.] and the
necessity of intervention.” B.H. v. Cty. of San Bernardino, 361 P.3d 319, 336 (Cal.
2015). In addition, Dr. Wang consciously balanced the risks and advantages of her
decision. Therefore, she would ordinarily be entitled to discretionary immunity
under section 820.2 for the act of recommending that G.J. be admitted to the
hospital for further medical testing.
However, our case law explicitly states that immunity under section 820.2

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does not apply to claims of false imprisonment. Wallis, 202 F.3d at 1145. Thus,
section 820.2 provides Dr. Wang immunity from the Joneses’ state law claims that
arise from Dr. Wang’s recommendation that G.J. receive further testing in the
hospital except the Joneses’ claim of false imprisonment.
B. Dr. Wang further argues that she is entitled to immunity under section
11172(a) of the California Penal Code. That section provides absolute immunity to
a mandatory reporter, which includes physicians, of child abuse and neglect against
civil and criminal liability for a mandatory report of child abuse. See Cal. Penal
Code §§ 11165.9, 11165.7(a)(21) (requiring reporting and including physicians
among mandatory reporters). Immunity under section 11172(a) extends to
“conduct committed in furtherance of diagnosing whether abuse occurred,” Arce v.
Cty. of L.A., 150 Cal. Rptr. 3d 735, 765 (Cal. Ct. App. 2012), as well as
“subsequent communications between the reporter and the public authorities
responsible for investigating or prosecuting abuse,” Robbins v. Hamburger Home
for Girls, 38 Cal. Rptr. 2d 534, 538 (Cal. Ct. App. 1995). However, this reporter
immunity does not extend to conduct by a mandatory reporter that usurps the role
of the DCFS. See id. at 539; James W. v. Superior Court, 21 Cal. Rptr. 2d 169,
254–57 (Cal. Ct. App. 1993) (holding that the immunity does not extend to
unreasonable post-report investigation). Thus, a mandatory reporter is not entitled
to immunity under section 11172(a) for attempting to take a child into temporary

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custody in exigent circumstances, because that is the role of the DCFS.
The Joneses assert that, when Dr. Wang recommended admitting G.J. to the
hospital, it was not in furtherance of diagnosing whether abuse occurred. Dr. Wang
concedes that the testing could have been performed in an outpatient setting and
that she recommended hospitalization to protect G.J. rather than to make a
diagnosis. Thus, viewing the facts in the light most favorable to the Joneses, Dr.
Wang sought to take G.J. into temporary custody in exigent circumstances. That is
the role of the DCFS, not the role of a mandatory reporter. Consequently, Dr.
Wang is not entitled to immunity under section 11172(a) for recommending the
hospitalization of G.J.2
Because the Joneses’ claim of false imprisonment survives summary
judgment, we remand to the district court. None of the Joneses’ federal law claims
remain. Thus, in its discretion, the district court must decide on remand whether or
not to exercise supplemental jurisdiction over the Joneses’ state law claim of false
imprisonment. Lacey v. Maricopa Cty., 693 F.3d 896, 940 (9th Cir. 2012) (en
2 Dr. Wang is certainly entitled to immunity under section 11172(a) for acts
that were in furtherance of diagnosing child abuse. Inasmuch as the Joneses base
their claims on those acts, Dr. Wang is immune under section 11172(a).
Nevertheless, Dr. Wang is not immune under section 11172(a) for recommending
that G.J. be hospitalized, because that act was not in furtherance of diagnosing
child abuse (even if the actual testing performed at the hospital was in furtherance
of diagnosing child abuse).

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banc).
AFFIRMED in part, REVERSED in part, and REMANDED.
The parties shall bear their own costs on appeal.

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Jones v. Wang, No. 12-55995
McNAMEE, Senior Judge, concurring dubitante in Section III, Part B:
Section 11172(a) immunity is defined by the California Legislature, governed
by California law, and interpreted by California courts and this Court. As read,
existing law does not provide a specific answer to the issue presented in this case:
whether a treating physician’s post-report statements to the parents of a suspected
child-abuse victim are protected by section 11172(a).
The concept of expanded immunity as applied by California courts calls into
question the conclusion that Dr. Wang’s conduct is not within the ambit of section
11172(a) immunity. See Arce, 150 Cal. Rptr. 3d at 766-67 (finding that immunity
extends not only to the act of reporting child abuse but also to the activities engaged
in leading up to the report); Thomas v. Chadwick, 274 Cal. Rptr. 128, 134-35 (Cal.
Ct. App. 1990) (finding that immunity extends beyond the initial report of child
abuse), abrogated on other grounds as recognized in Dwight R. v. Christy B., 151
Cal. Rptr. 3d 406, 420 (Cal. Ct. App. 2013); Krikorian v. Barry, 242 Cal. Rptr. 312,
312 (Cal. Ct. App. 1987) (finding that immunity extends to reports of child abuse
made in good and bad faith).
As further evidence that existing law does not account for the unique
circumstances of this case, I cite the fact that our conclusion is in clear conflict with
Dr. Wang’s professional responsibility as a child abuse pediatrician.
FILED
JAN 19 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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The parties do not dispute that as the SCAN team medical director, Dr.
Wang’s role as a child abuse pediatrician requires her to make recommendations for
the safety of the child above all other considerations.1 It is also undisputed that Dr.
Wang recommended hospitalization to protect G.J. from potential further abuse.2
Yet we find that Dr. Wang is not entitled to immunity under section 11172(a)
because she recommended hospitalization to protect G.J. from potential further
abuse.3 In so finding, we reprimand Dr. Wang for executing the very professional
obligation to which the parties recognize she is bound.
Had Dr. Wang not recommended hospitalization for G.J. – a three month old,
non-verbal infant with injuries consisting of rib fractures, a possible skull fracture,
and a periosteal reaction on the leg bones – she would have failed to carry out her
professional responsibility as a pediatrician trained in child abuse and neglect. To be
certain, she would have gone against her professional opinion that G.J.’s injuries
were highly specific for child abuse, and ignored her extensive experience as a
member of the UCLA SCAN Team which told her that G.J. was at substantial risk
of additional serious harm, irreversible damage, and even death, if he went home. In
1 The majority recognizes this professional responsibility in Section III, Part
A. 2 The gravamen at issue is the extent of Dr. Wang’s statements and conduct
in making that recommendation, which is in much dispute.
3 Pursuant to legal standards we are bound to apply, we view the facts in the
light most favorable to the Joneses in reaching our conclusion. It is important to
note that these facts are yet to be determined at trial.

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other words, had Dr. Wang not recommended hospitalization for G.J., she would
have failed to make recommendations for the safety of G.J. above all other
considerations. Clearly, existing law does not account for Dr. Wang’s professional
responsibility and thus does not go far enough as to protect Dr. Wang’s actions under
the circumstances.
Finally, Dr. Wang was acting in the best interest of G.J. and took the least
controversial course of action in recommending hospitalization for him. She
certainly could have taken more drastic measures. To subject Dr. Wang to a claim
of false imprisonment for acting in G.J.’s best interest and taking the least
controversial course of action is not only an unjust result, but an illogical one.
Should this case be remanded to the California courts, the issue of whether
Dr. Wang’s post-report statements to the Joneses are entitled to section 11172(a)
immunity can be placed squarely before those courts.

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Jones v. Wang, No. 12-55995
MURGUIA, Circuit Judge, dissenting in part:
I respectfully dissent from the majority’s conclusion in part III, section A,
that Dr. Wang is entitled to discretionary immunity under section 820.2 of the
California Government Code.1
Section 820.2 of the California Government Code grants public employees
immunity from liability for the employee’s acts or omissions during the
employee’s exercise of discretion invested in her. See Hampton v. County of San
Diego, 362 P.3d 417, 425 (Cal. 2015). Accordingly, to be entitled to immunity
under section 820.2, the employee must be vested with the authority to exercise
discretion. See Cal. Gov’t Code § 820.2; see also Newton v. County of Napa, 266
Cal. Rptr. 682, 687 (Cal. Ct. App. 1990).
Here, Dr. Wang has not identified any authoritative source indicating that, in
California, physicians, as opposed to social workers, have the authority to decide
whether to place a hospital hold on a child or otherwise detain a child in order to
investigate suspected abuse. Because the decision to detain G.J. at the hospital
1 I agree with the majority’s conclusion that under Wallis, 202 F.3d at 1145,
section 820.2 does not shield Dr. Wang from liability on the Joneses’ claim for
false imprisonment. Therefore, I do not believe that Dr. Wang is entitled to state
statutory immunity on any of the Joneses’ state law claims.
FILED
JAN 19 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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rested within the authority and discretion of DCFS, I cannot conclude that Dr.
Wang acted within her authority in misleading G.J.’s parents that his
hospitalization was required. Accordingly, I would affirm the district court’s
decision that Dr. Wang is not entitled to discretionary immunity under section
820.2.

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