Hipschman et al v. County of San Diego et al

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
CAROLINA HIPSCHMAN, et al.,
Plaintiffs,
v.
COUNTY OF SAN DIEGO, et al.,
Defendants.
Case No.: 22-cv-00903-AJB-BLM
OMNIBUS ORDER
(Doc. Nos. 159, 160, 163, 164, 167)
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Table of Contents
I. 	BACKGROUND .......................................................................................................... 5
A. 	Factual Background .............................................................................................. 5
1. 	The discovery of C.H.’s injury. .................................................................... 5
2. 	The Hipschmans’ account of the June 26, 2020 medical examination of C.H.
....................................................................................................................... 5
3. 	Medical staffs’ account of the June 26, 2020 medical examination of C.H. 6
4. 	The police investigation. ............................................................................... 8
5. 	The Hipschmans’ account of Romero’s investigation................................ 10
6. 	Defendants’ account of Romero’s investigation. ....................................... 11
7. 	The decision to remove C.H. ...................................................................... 15
8. 	Samuels’ investigation. ............................................................................... 16
9. 	The initial dependency proceedings. .......................................................... 20
10. 	The 	Hipschmans’ 	account 	of 	C.H.’s 	medical 	examinations 	while 	in
Defendants’ custody. .................................................................................. 23
11. 	Defendants’ account of C.H.’s medical examinations while in Defendants’
custody. ....................................................................................................... 24
12. 	Medical 	staffs’ 	account 	of 	C.H.’s 	medical 	examinations 	while 	in
Defendants’ custody. .................................................................................. 24
13. 	The termination of dependency proceedings. ............................................. 25
B. 	Procedural Background ...................................................................................... 26
II. 	LEGAL STANDARD ................................................................................................ 26
A. 	Daubert Motions ................................................................................................ 26
B. 	Motions for Summary Judgment ........................................................................ 28
III. 	DISCUSSION ............................................................................................................ 28
A. 	Evidentiary Motions and Requests ..................................................................... 28
1. 	Motions to Exclude ..................................................................................... 28
a. 	Melinda Murphy, M.A. ....................................................................... 28
b. 	Stephen Papaleo, Ph.D. ....................................................................... 32
2. 	Request for Judicial Notice ......................................................................... 36
3. 	Evidentiary Objections ............................................................................... 37
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B. 	Motions for Summary Judgment ........................................................................ 38
1. 	Claim 1 – Unlawful removal ...................................................................... 38
a. 	Defendants may have had reasonable cause to believe that C.H. faced
an immediate threat of serious physical injury. .................................. 40
i. 	Serious physical injury from abuse ............................................. 40
ii. 	Serious physical injury from neglect .......................................... 43
b. 	Defendants may have pursued all reasonable avenues of investigation.
............................................................................................................. 45
c. 	It is not clear whether the removal of C.H. exceeded the scope of action
needed to protect C.H. ........................................................................ 47
d. 	The Ninth Circuit has not explained when the warrantless removal of
an infant to prevent neglect violates the Constitution. ....................... 47
2. 	Claim 2 – Deprivation of notice, consent, presence ................................... 50
a. 	Samuels’ examination of scratches near C.H.’s groin ........................ 50
b. 	Skeletal survey .................................................................................... 51
i. 	Right to Notice ............................................................................ 51
ii. 	Right to Consent .......................................................................... 53
c. 	General examination ........................................................................... 54
i. 	Right to Notice ............................................................................ 54
ii. 	Right to Consent .......................................................................... 54
iii. 	Right to be Present ...................................................................... 57
3. 	Claim 3 – Judicial deception....................................................................... 59
4. 	Claim 4 – Monell liability........................................................................... 65
a. 	Count 1 – Unlawful removal............................................................... 66
b. 	Count 2 – Deprivation of notice, consent, presence ........................... 67
i. 	Alleged Polinsky intake examination ......................................... 68
ii. 	Samuels’ examination of scratches near C.H.’s groin ................ 69
iii. 	Skeletal survey ............................................................................ 69
iv. 	General examination ................................................................... 70
c. 	Count 3 – Judicial deception ............................................................... 71
IV. 	CONCLUSION .......................................................................................................... 71
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In June 2020, Defendant County of San Diego (the “County”) removed then 7-
month-old C.H. from his parents’, Plaintiffs Carolina and Alexander Hipschmans’, 1
custody. The County retained custody of C.H. from June 27, 2020, to August 4, 2020.
The Hipschmans subsequently initiated this civil rights action against the County
and Individual Defendants Nidia Romero (“Romero”), Elizabeth Samuels (“Samuels”),
Jose Padilla (“Padilla”), Mary Shehee (“Shehee”), Tin Le (“Le”), and Maria Araiza
(“Araiza”) (collectively, “Individual Defendants”),2 who were employed by the County at
the time of the removal. The Hipschmans have alleged, inter alia, that the Individual
Defendants (1) unlawfully removed C.H.; (2) deprived the Hipschmans of their rights to
notice of, to consent to, and to be present for medical examinations of C.H.; and
(3) unlawfully engaged in judicial deception. The Hipschmans additionally allege that the
County is liable for the constitutional torts the Individual Defendants allegedly committed.
With discovery completed, Defendants now move to exclude portions of the
testimony and opinions offered by the Hipschmans’ retained experts, Melinda Murphy
(“Murphy”) and Dr. Stephen Papaleo (“Dr. Papaleo”). (Doc. Nos. 159; 160.) The parties
have also cross-moved for summary judgment and/or partial summary judgment. (Doc.
Nos. 163; 164; 167.) The motions are fully briefed. (Doc. Nos. 159–60; 163–64; 167; 172–
75; 186.)
For the reasons set forth below, the Court GRANTS Defendants’ motion to exclude
portions of Murphy’s opinions and testimony (Doc. No. 159); GRANTS IN PART and
DENIES IN PART Defendants’ motion to exclude portions of Dr. Papaleo’s opinions and
1 	This Order uses the Plaintiffs’ first names to refer to each Plaintiff individually to avoid confusion
between Plaintiffs Carolina and Alexander Hipschman and Mr. Thomas Hipschman (“Thomas”), who is
Alexander’s father and Carolina’s father-in-law. (See Doc. No. 190 at 437, 531.) The Order refers to
Carolina and Alexander collectively as “the Hipschmans.”
Additionally, page citations refer to the pagination generated by the Case Management/Electronic
Case Files system.
2 	The Order uses the term “Defendants” to refer collectively to the County and Individual
Defendants.
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testimony (Doc. No. 160); and GRANTS IN PART and DENIES IN PART the cross-
motions for summary judgment (Doc. Nos. 163, 164, 167).
I. 	BACKGROUND
A. 	Factual Background
1. 	The discovery of C.H.’s injury.
On June 26, 2020, the Hipschmans resided with Carolina’s parents, Frank Floyd
(“Frank”) 	and 	Emma 	Floyd 	(“Emma”); 	Carolina’s 	brother, 	Frank 	Floyd 	III; 	and
Alexander’s first son, M.H. (Doc. No. 163-2 at 9–10.)
Around 6:00 a.m. that day, Carolina discovered swelling on the left side of C.H.’s
head. (Id. at 12.) The Hipschmans immediately took C.H. to the emergency room. (Id. at
13–16.) The emergency room doctor referred the Hipschmans and C.H. to Rady Children’s
Hospital (“Rady”) because the emergency room lacked the ability to take a CT scan or x-
ray of an infant. (Id. at 18–19.) The Hipschmans then took C.H. to Rady. (Id. at 19.)
2. 	The 	Hipschmans’ 	account 	of 	the 	June 	26, 	2020 	medical
examination of C.H.
At Rady, C.H. was examined by a doctor. According to Carolina, the doctor asked
her if C.H. had been injured, to which Carolina responded, “No. I don’t remember an
injury.” (Doc. No. 190 at 397.) The doctor proceeded to order a CT scan and bloodwork
tests for C.H. (Id.) The CT scan revealed that C.H. had suffered a fracture on the left side
of his skull with some bleeding. (Id. at 400, 410.)
After the CT scan, the doctor and a hospital social worker asked Carolina if she could
remember anything that might have caused the fracture. (Id. at 400.) Carolina told the
doctor that on Thursday, June 25, C.H. hit his head on Emma’s mouth (the “Emma”
incident). (Id. 	at 400–01.) Carolina also said that on either Tuesday, June 23, or
Wednesday, June 24, she saw C.H. “hit his head really, really hard on the crib, the left side
of his head on the crib” through a baby monitor (the “Crib” incident). (Id. at 401.) Carolina
additionally informed the doctor that on June 24, C.H. fell from a sitting position and hit
the left side of his head on a wooden floor (the “Carolina Mat” incident). (Id. at 405–07.)
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The doctor did not take notes during this conversation, but the hospital social worker did.
(Id. at 407–08.) A second doctor subsequently reviewed some notes with Carolina, who
confirmed the Emma, Crib, and Carolina Mat incidents. (Id. at 409.)
Carolina then met with Dr. Jillian Plonsker (“Dr. Plonsker”). (Id. at 410.) According
to Carolina, Dr. Plonsker stated that C.H. had a “slight hairline fracture” that had a little
bleeding “like a bruise.” (Id.) Carolina also states that she discussed the Emma, Crib, and
Carolina Mat incidents with Dr. Plonsker. (Id. at 411.) Carolina did not identify any
additional incidents for Dr. Plonsker. (Id.)
Alexander indicates that he was also in the meeting with Dr. Plonsker and that she
asked the Hipschmans if they could think of any cause of C.H.’s injury. (Id. at 524.)
According to Alexander, the Hipschmans told Dr. Plonsker about how they had already
spoken with social workers about the Emma, Crib, and Carolina Mat incidents. (Id. at 525.)
Alexander noted that Carolina discussed a fourth incident (the “M.H. Mat” incident) where
C.H. fell onto the floor while Carolina was in the bathroom, after which M.H. “decided to
move [C.H.] back on the mat” and “bonked [C.H.’s] -- hit [C.H.’s] head on the floor in the
process of doing so.” (Id. at 526.) Alexander claims that “Dr. Plonsker said those are all
potential things. If you can’t narrow it down, those are all things that would make sense
that could have done this to him.” (Id.)
3. 	Medical staffs’ account of the June 26, 2020 medical examination
of C.H.
No party has provided records from the first two doctors who examined C.H. or the
hospital social worker to support these motions.
It appears that at least one of the doctors asked Dr. Nicole Ayson (“Dr. Ayson”), Dr.
Shalon Nienow (“Dr. Nienow”), and Dr. Sarah Vega (“Dr. Vega”) to provide a telephone
consultation on next steps for C.H.’s evaluation because “there was no history of trauma
provided to explain” C.H.’s injury. (Doc. No. 163-2 at 80; see also Doc. Nos. 163-2 at 84,
90; 190 at 209, 251–52, 255.) In performing the consultation, Dr. Ayson, Dr. Nienow, and
Dr. Vega relied on information collected by other Rady staff from the Hipschmans. (Doc.
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No. 190 at 204–06, 208, 256.) However, the doctors did not have sufficient information to
determine whether C.H. was abused physically. (Id. at 244, 252–53.) Dr. Vega found the
injury highly concerning because of a lack of any history of accidental trauma. (Doc. No.
163-2 at 84.) The doctors thus recommended that the matter be referred to the County’s
Health and Human Services Agency and law enforcement. (Doc. No. 190 at 257; see also
Doc. No. 189 at 187.)
In the written consultation note, Dr. Vega recorded that C.H.’s
head injuries would have been caused by direct impact to the left side of his
skull. In a young infant who requires constant supervision, the event leading
to this severe injury would have been readily apparent to any prudent
caregiver. In the absence of a plausible explanation, this injury is highly
concerning for non-accidental trauma. If [C.H.] were to be returned to the
environment in which his injuries [were sustained], it would place him at high
risk of further maltreatment.
(Doc. No. 189 at 1873; see also Doc. No. 163-2 at 84–85 (explaining typographical error).)
Dr. Plonsker indicates that she “was consulted to comment on medical management
of [C.H.’s] injury.” (Doc. No. 190 at 129.) Prior to speaking with the Hipschmans and
examining C.H., Dr. Plonsker reviewed C.H.’s medical records, which indicated “that there
was no known trauma history.” (Id. at 132–33.) During the examination, Dr. Plonsker
reassured the Hipschmans that C.H.’s injury would heal without treatment. (Id. at 130.)
Because no treatment was needed, Dr. Plonsker considered C.H.’s injury to be “minor.”
(Id. at 157–58.) However, Dr. Plonsker has acknowledged that others “could also argue
that any bleeding in the brain or on the brain is a serious injury.” (Id. at 157.) Despite her
consideration of the injury as minor, Dr. Plonsker agreed that C.H. should have a
3 	The Court notes that this appears to be an incomplete copy of the consultation note. The last line
of the document is cut off, but it appears to say “Page 1 of” and it is not clear if the last number is a “2”
or a “3.” (Id.) The Court additionally recognizes that this was not a final version of the notes because a
cosign was still needed. (Id.; see also Doc. No. 190 at 259–60.)
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nonaccidental trauma work-up because of “the lack of a known mechanism of trauma at
the time that [she] wrote [her] note.” (Id. at 166.)
On June 27, Dr. Premi Suresh (“Dr. Suresh”) spoke with Detective Robert Murgia
(“Detective Murgia”), Detective Manuel Salazar (“Detective Salazar”), and Romero. (Doc.
No. 190-1 ¶ 4.) The doctors who examined C.H. were not available at that time, so Dr.
Suresh was brought in to help the detectives and Romero understand C.H.’s injury. (See
Doc. No. 190 at 179–80; see also Doc. Nos. 190-1 ¶ 7; 191 at 117.) Dr. Suresh could not
determine if C.H.’s injury was caused by abuse or an accident. (Doc. No. 190 at 175.) Dr.
Suresh “did not see, in the records available to [her] at the time, any explanation of how
[C.H.’s] injury might have happened.” (Doc. No. 190-1 ¶ 10.) However, Dr. Suresh did tell
the detectives and Romero that the Emma incident would not cause C.H.’s injury. (Id. ¶ 6.)
4. 	The police investigation.
On June 26 at approximately 5:45 p.m., Officer Daniel Anderson (“Officer
Anderson”) and Agent Christopher Fisher (“Agent Fisher”) were dispatched to Rady to
evaluate a potential child abuse case. (Doc. Nos. 163-2 at 103–04; 189 at 56.) A Rady nurse
notified Officer Anderson and Agent Fisher that the Hipschmans brought C.H. to Rady at
approximately 7:00 a.m. (Doc. No. 189 at 56.) The nurse also shared that “[t]he parents did
not provide a story on how the injury occurred and stated they did not know how it
occurred.” (Id.)
Officer Anderson and Agent Fisher reviewed the hospital social worker’s notes and
Dr. Vega’s consultation note. (Id. at 56–57.) The hospital social worker’s notes indicated
that “Carolina denied any knowledge of any falls or trauma.” (Id. at 57.) Alexander also
“denied any knowledge of any falls or trauma.” (Id.)
After reviewing the notes, Officer Anderson and Agent Fisher interviewed the
Hipschmans. (Id.) During their interview with Carolina, Carolina stated that she “believed
[C.H.] may have fallen, but she did not know.” (Doc. No. 163-2 at 109.) Specifically, she
told Officer Anderson that “[s]he has no idea how [C.H.] could have sustained the injury.”
(Doc. No. 189 at 58.) Carolina went on to identify the Emma and Carolina Mat incidents
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as instances where C.H. hit his head. (Doc. No. 190 at 506–07, 509.) Carolina conceded
that “the doctor didn’t think that [the Emma incident] would be enough.” (Doc. No. 191 at
289–90.) She also described the Carolina Mat incident as one where C.H. “rolled off of
[the mat] and the kind of clonked his head.” (Id. at 290.)
“When asked how he thought [C.H.’s] injury happened, Alex[ander] replied, ‘I don’t
know. I want to know. Seeing his CT scans . . . . Um, I am sorry, I really don’t know.’”
(Doc. No. 189 at 59; see also Doc. No. 163-2 at 115.)
The following morning, Detective Salazar and Detective Murgia took over the police
investigation. (See Doc. No. 189 at 61.) After reviewing Officer Anderson’s report, the
detectives went to Rady to continue investigating. (Id.) According to Carolina, she told the
detectives about the Crib and Carolina Mat incidents. (Doc. No. 190 at 436.) However, she
may not have told the detectives about the Emma incident. (Id.)
Around 12:08 p.m., the detectives and Romero had a conference call with Dr.
Suresh. (Doc. No. 189 at 61.) Dr. Suresh informed the detectives that “she believed the
fracture was a direct impact injury” and that it “was not necessarily an abusive type injury,”
but she “could not determine the cause of the injury.” (Id.) She also indicated that, “[b]ased
on her experience . . . the injury was not consistent with Abusive Head Trauma.” (Id.)
After the conference call, Detectives Salazar and Murgia went to speak to the
Hipschmans with Romero. (Id. at 62.) According to Detective Salazar, Romero “advised
[the Hipschmans that] a hold had been placed on [C.H.] by [the County] since there wasn’t
an explanation to how the fracture occurred by the family.” (Id.; see also Doc. No. 190 at
90.) Romero further explained that the County was “still looking at options as to where to
place [C.H.]” (Doc. No. 189 at 62.) Detective Salazar could not recall if Carolina provided
any explanation for C.H.’s injury on June 27. (Doc. No. 163-2 at 169.)
The police ultimately concluded that there was not enough evidence to prove that
C.H. suffered an abusive-type injury. (Doc. No. 190 at 122.)
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5. 	The Hipschmans’ account of Romero’s investigation.
On June 26, after speaking with Officer Anderson and Agent Fisher, Carolina spoke
with Romero. (Doc. No. 163-2 at 20–21.) When asked if she knew what caused C.H.’s
injury, Carolina responded, “I don’t know specifically what caused [C.H.’s] injury. (Id. at
22.) However, Carolina told Romero about the Emma, Crib, and Carolina Mat incidents.
(Doc. Nos. 163-2 at 22–25; 190 at 424.) Carolina indicates both that she did not tell Romero
about any additional incidents and that she may have told Romero about the M.H. Mat
incident. (Compare Doc. Nos. 163-2 at 23; 190 at 424, with Doc. No. 191 at 20–22.)
Alexander also spoke with Romero. (Doc. No. 163-2 at 121.) When asked what
might have happened to C.H., Alexander told Romero about the Emma, Crib, and Carolina
Mat incidents. (Id. at 121–22.) Alexander specified that Carolina told him that C.H. hit the
back side of his head on the floor during the Carolina Mat incident. (Id. at 123.)
Later that night, according to Carolina, Romero told the Hipschmans that they could
not leave the hospital with C.H. (Id. at 30.) In contrast, Alexander states that Romero
explained that there was a possibility of a hospital hold, which “means that [Romero is] the
one who decides whether or not [C.H.] goes home with [the Hipschmans] tomorrow.” (Id.
at 127.) Alexander asserts that the Hipschmans objected that they had told Romero “how
[C.H.] was jumping on Emma’s legs. We said how he hit his head on the crib. And we said
how Carolina, like, had told me the story how he fell over. And Carolina relayed the story
how [M.H.] moved [C.H.] a different time.” (Id.)
The Hipschmans stayed in the hospital with C.H. that night. (Doc. No. 190 at 431–
32.)
The following day, June 27, Romero spoke with the Hipschmans after the detectives.
(Id. 	at 436.) During the conversation, Romero asked the Hipschmans for potential
placement options for C.H. (See id. at 437.) Romero then gave Carolina a consent form
that Romero said Carolina “had to sign . . . just in case of if [C.H.] needed to be seen and
for the Polinsky Center -- for an intake at the Polinsky Center.” (Id. at 442.) When asked
what would happen if the Hipschmans did not sign the form, Romero told the Hipschmans
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that they “had no choice” and failure to sign “would make it very difficult for [the
Hipschmans] to have [their] son.” (Id. at 444.) Carolina signed the form. (Doc. No. 189 at
64.)
Some time after the meeting, Romero informed the Hipschmans that they would not
be able to take C.H. home. (Doc. No. 190 at 446–47, 534.)
Later that day, Romero interviewed M.H. with Alexander present. (Id. at 292–95.)
M.H. identified two instances where C.H. may have injured himself. (Id. at 296.) M.H. first
told Romero about the M.H. Mat incident—that while Carolina was in the restroom, C.H.
rolled off of his play mat and M.H. bumped C.H.’s head on the ground when he tried to
scoot C.H. back onto the mat. (Id. at 296–97.) During the M.H. Mat incident, C.H.’s head
was “[w]ay less than an inch” off the ground. (Id. at 308–09.) M.H. had not told Alexander
about this incident before the interview. (Id. at 528.) M.H. also told Romero about the
Carolina Mat incident—where Carolina and C.H. were sitting on a play mat and C.H. fell
over onto his left side. (Id. at 297–98.)
On June 29, Alexander emailed Romero with a summary of the Hipschmans’
conversation with Dr. Plonsker and to encourage Defendants to follow up with her. (Id. at
65–66.)
6. 	Defendants’ account of Romero’s investigation.
On June 26, Defendants received a referral regarding C.H.’s injury around 4:54 p.m.
(Doc. Nos. 163-2 at 58; 163-6 ¶ 4; 189 at 2–3.) The reporting party informed Defendants
that a CT scan of C.H. “shows a skull fracture and bleeding.” (Doc. No. 189 at 2.)
According to the reporting party, “the parents do not have an explanation.” (Id.) The
reporting party nevertheless indicated that on June 25, C.H. “‘slammed’ his head into
[Emma’s] mouth, making it bleed” and that C.H. “hit his head on the inside of his crib on
06/25/2020; it is unknown where on his head.” (Id. at 2–3.) The reporting party also stated
that “the parents denied any trauma and falls and denied that the 11 year old step-brother
holds the child unsupervised.” (Id. at 3.) Defendants summarized this as “[i]t was reported
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that [C.H.] has swelling to the head, bleeding, and a skull fracture with no explanation to
his injuries.” (Id.)
That afternoon, Defendants assigned a “standby worker,” 	i.e., an emergency
response investigator who conducts investigations after hours, on weekends, and on
holidays, to investigate. (Doc. No. 163-2 at 70–71; see also Doc. Nos. 163-6 ¶ 3; 190 at
321.) Specifically, Defendants assigned Romero. (Doc. No. 163-6 ¶ 5.) Throughout her
investigation, Romero was supervised by Araiza. (Id.)
Romero initiated her investigation by attempting to call the reporting party. (Doc.
No. 163-2 at 53–56.) However, Romero did not note the call attempt in her delivered
services log. (Id. at 55.)
Upon arriving at Rady, Romero received and reviewed Dr. Vega’s consultation note.
(Doc. Nos. 163-2 at 68; 189 at 6.) Romero attempted to speak with the hospital social
worker who had spoken with the Hipschmans, but the hospital social worker had already
left for the day. (Doc. No. 189 at 8.)
Around 7:40 p.m., Romero interviewed Carolina. (Doc. Nos. 163-2 at 62; 189 at 6–
8.) Carolina “denied knowing what could have happened” to cause C.H.’s injury, but
mentioned the Emma incident and that it caused Emma to bleed. (Doc. Nos. 163-2 at 60;
189 at 8.) Romero’s notes indicated that Carolina “denied having any knowledge, [sic] as
to what happened to her son.” (Doc. No. 189 at 7.) “When asked whom [sic] she believed
could have caused the fracture to the baby’s head[,] she said, ‘I don’t know.’” (Id. at 8.)
“When asked if she could remember anything that could have happened that might have
resulted in the baby being injured, she denied their [sic] being anything.” (Id.)
Around 8:45 p.m., Romero spoke with Officer Anderson and Agent Fisher (Id. at 9.)
They informed Romero that the Hipschmans “did not have any explanation for the
injuries.” (Id.)
Around 9:00 p.m., Romero interviewed Alexander. (Doc Nos. 163-2 at 63; 189 at 5,
9–11.) When Romero asked Alexander “Can you tell me how [C.H.] sustained a head
fracture,” Alexander “denied having any knowledge, [sic] as to what happened.” (Doc. No.
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189 at 10.) “When asked whom [sic] he believed could have caused the facture to the
baby’s head[,] he said, ‘I don’t know.’” (Id.) “When asked if he could remember anything
that could have happened that might have resulted in the baby being injured, he denied
their [sic] being anything.” (Id.) Nevertheless, Alexander said Carolina told him about the
Emma incident, but “denied knowing the specifics because he was not home at that time.”
(Id. at 11.)
Later that evening, Romero spoke with both of the Hipschmans. (Doc. Nos. 163-2
at 63; 189 at 11.) Romero explained the Defendants’ concern that “no one has been able to
identify whom [sic] or how the injury was sustained.” (Doc. No. 189 at 11.) Romero asked
the Hipschmans if they could remember anything further “and they both denied.” (Id.)
Romero then “explained the possibility of their [sic] being a hospital hold tomorrow and
explained that it indicated that [Defendants] would take custody of [C.H.]” (Id.) Given this
possibility, Romero asked the Hipschmans for potential family members or friends who
could be considered for placement. (Id.) Romero also informed the Hipschmans that
another social worker would be assigned Monday to re-assess all of the information before
Defendants. (Id.)
On Saturday, June 27, Romero began the morning around 9:00 a.m. by speaking
with Detective Murgia and a hospital social worker. (Id. at 13–14.) Romero also attempted
to contact potential family placement options identified by the Hipschmans. (Id. at 13.)
Around noon, Romero met with Detective Murgia and Detective Salazar at a hospital
social worker’s office. (Id.) The four spoke with Dr. Suresh by phone. (Id.) During the call,
Dr. Suresh “indicated that that [sic] the child’s injury could not have been generated by the
head force of him hitting the grandmother’s mouth.” (Id.) Dr. Suresh said that C.H. “did
receive a force to the head, but is not clear what it could have been.” (Id.) She also noted
the injury “[c]ould have been either accidental and not being reported or non-accidental
and not being reported.” (Id.) Romero did not talk with any other medical staff about C.H.
(Doc. No. 190 at 24–26.)
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Around 12:40 p.m., Romero met with Detective Murgia and Detective Salazar again.
(Doc. No. 189 at 15.) The detectives informed Romero that they would not be writing a
criminal report. (Id.)
After speaking with Dr. Suresh, Romero contacted Araiza. (Doc. Nos. 163-2 at 59;
190 at 19–20.) During this conversation, Romero and Araiza used Defendants’ “Structured
Decision-Making” tool to complete a safety assessment for C.H. (See Doc. No. 163-2 at
69.) The decision to remove C.H. from the Hipschmans’ custody was made after Romero
consulted with Araiza. (Id. at 67.)
Around 1:05 p.m., Romero informed the hospital social worker that Defendants
would place a hospital hold on C.H. (Doc. No. 189 at 15.)
About six minutes later, Romero spoke with the Hipschmans. (Id. at 15–16.) Romero
informed the Hipschmans that a doctor ruled out the Emma incident being a cause of C.H.’s
injury. (Id. at 15.) Romero also told the Hipschmans that Defendants were putting a hospital
hold on C.H. and that Romero could not reach the Hipschmans’ proposed family placement
options. (Id.) Romero explained to the Hipschmans that C.H. would be taken to the
Polinsky Center because no foster caretakers were available. (Id. at 16.)
Around 3:10 p.m., Romero removed C.H. from the Hipschmans’ custody. (Id. at 17.)
While C.H. was “in intake” at the Polinsky Center, Defendants identified a foster
caretaker for C.H. (Id. at 12, 17.)
Around 4:21 p.m., Romero notified Carolina that C.H. would be placed with a foster
caretaker instead of at the Polinsky Center. (Id. at 17–18.) Romero later offered to let the
Hipschmans visit with C.H. before she brought C.H. to the foster caretaker. (Id. at 18.)
Romero also asked to speak with M.H. during the visit, which Carolina agreed to. (Id.)
Around 5:50 p.m., the Hipschmans visited with C.H. (Id.)
That evening, Romero interviewed M.H. in Alexander’s presence. (Id. at 12.) M.H.
“denied being aware how [C.H.] sustained a head injury that resulted in him going to the
hospital.” (Id.)
Around 8:00 p.m., Romero dropped off C.H. with the foster caretaker. (Id. at 19.)
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Throughout June 26 and 27, Romero consulted with Araiza by phone on at least six
occasions. (Doc. No. 163-6 ¶ 7.) When they spoke each day, Romero informed Araiza “that
the parents of C.H. were unable to provide any plausible explanation (accidental or
inflicted) for C.H.’s injuries.” (Id. ¶ 5.)
7. 	The decision to remove C.H.
Romero asserts that she did not make the decision to remove C.H., and that it was
up to Araiza and Araiza’s manager to make the decision. (Doc. No. 163-2 at 50–51.)
Nevertheless, Romero acknowledges that she played a role in the process by “provid[ing]
all the information gathered” to Araiza. (Id. at 50.) Romero also denies that she told the
Hipschmans that she would make the decision of whether C.H. would be removed. (Id. at
51.)
According to Araiza, “[d]ecisions in child welfare are not made by one person. It’s
a -- it’s a consultation, policy, and [structured decision-making] assessments.” (Doc. No.
190 at 322–23.) “[T]here’s an investigation that happened, that facts were considered, and
that policy was followed along with consultation from a [social worker], with me, and my
manager, along with [a structured decision-making] assessment.” (Id. at 323.) In this
framework, Araiza “was the supervisor that agreed to a removal.” (Id. at 322.) Araiza spoke
with her manager, Le, about the information Romero collected. (Doc. No. 163-2 at 158.)
Araiza and Le then made the decision to remove C.H. (Id. at 159.) When asked to explain
Romero’s involvement in the removal decision, Araiza stated that
Well, she’s the one that’s gathering the information and giving it to me along
with her own assessment. So then I take that assessment, I review as much
information as I can, and I forward it to my manager. That’s how the decision
is made along with our [structured decision-making] assessment.
(Id.) In this process, Romero’s “recommendation was to seize the child.” (Doc. No. 190 at
326.)
Le indicated that, as a manager, he ultimately had “veto power . . . over the decision
to remove a child.” (Id. at 339–40.)
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Araiza did not recall consulting with Padilla on the decision of whether to remove
C.H. from the Hipschmans’ custody. (Doc. No. 163-2 at 163.) Padilla also asserts that his
role in the removal of C.H. was limited to interviewing Araiza and Romero based on a
subsequent 	ombudsman 	complaint. 	(Doc. 	Nos. 	163-2 	at 	222; 	191 	at 	76.) 	Padilla
additionally indicates that Le was responsible for advising Araiza because Padilla had to
take the lead on the ombudsman complaint since Le was part of the consultation. (Doc. No.
163-2 at 224–25.)
Araiza also explained that Defendants could not obtain a warrant to remove C.H. on
June 27, because the juvenile court only hears warrant requests on weekdays between 8:30
a.m. to 11:30 a.m. and between 1:30 p.m. to 4:00 p.m. (Doc. No. 163-6 ¶ 18.) Padilla
similarly indicated that warrants are not available for standby cases. (Doc. No. 191 at 61.)
8. 	Samuels’ investigation.
On Monday, June 29, Samuels took over the referral. (See Doc. No. 189 at 19.) In
doing so, Samuels contacted Dr. Vega to follow up on the medical staff’s comments (Id. at
20–21.) Samuels asked if C.H.’s injury could have happened by accident. (Id. at 20.) Dr.
Vega explained that “generally a child does not suffer any injury from a short fall of 2-3
feet high. Never the less [sic], an injury can occur if the child fell from a height of 2-3 feet
or greater.” (Id.) Dr. Vega added that C.H.’s injury “could have occurred by impact from
his head hitting the floor from a fall or if someone hit [him] directly in the head. However,
at this point without a plausible explanation, it is difficult to determine.” (Id.) Furthermore,
“Dr. Vega denied that [C.H.] could have suffered a skull fracture form [sic] hitting his head
on his crib.” (Id.)
Samuels also asked Dr. Vega about Dr. Plonsker’s examination of C.H. (Id. at 20–
21.) Dr. Vega confirmed that Dr. Plonsker examined C.H., but could not provide Samuels
with Dr. Plonsker’s notes. (Id.) Samuels asked about Dr. Plonsker’s purported statement
“that there are many times the cause of such injuries are unknown and could be from
anything.” (Id. at 21.) However, Dr. Vega could not find the statement in Dr. Plonsker’s
notes and referred Samuels to the medical records department to obtain the notes. (Id.)
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Samuels attempted to contact Dr. Plonsker on June 30. (Doc. Nos. 163-2 at 183–84; 189 at
21.)
Samuels also spoke with the Hipschmans, Thomas, Emma, and Frank. (Doc. No.
189 at 19–22.) During these conversations, the Hipschmans identified additional placement
preferences for C.H. and specified that Thomas was their first choice. (Id. at 19–20.) Emma
reported that the Emma incident occurred on June 24 and denied suffering any injuries
from the incident. (Id. at 21.) Frank informed Samuels that the family tried to figure out
how C.H. may have become injured. (Id. at 22.) Frank suggested that C.H. may have hit
his head on his crib, but “denied ever seeing the child fall or hit his head.” (Id.)
On June 30, Frank reiterated to Samuels that C.H. may have hit his head on his crib.
(Id. at 24.) Sharps Pediatrics staff also informed Samuels that C.H. had a follow-up
appointment at Sharps Pediatrics, which was ultimately scheduled for July 2. (Id. at 24–
25.)
On July 2, Samuels and Carolina attended C.H.’s follow-up appointment at Sharps
Pediatrics. (Id. at 26.)
On July 6, Samuels received amended statements from Emma and Frank. (Id. at 27.)
Emma clarified that the Emma incident occurred on June 25, not June 24. (Id.) Frank
corroborated this clarification by explaining that Emma did not work on June 25. (Id.)
On July 7, Samuels met with and interviewed Alexander at the Hipschmans’ home.
(Id. at 29–31.) During the interview, Samuels read the dependency petition that was filed
with the state juvenile court on July 1 to Alexander. (Id. at 29.) Alexander “stated that he
does not know what happened,” but “expressed that these are accidents that happen all the
time.” (Id.) Alexander also noted that on June 23 or June 24, during the Crib incident, he
and Carolina saw C.H. “hit his head on the left side where the skull fracture is at” on the
side of his crib. (Id. at 30.) He additionally reported that on July 5, he learned from M.H.
that C.H. “hit his head on the floor” during the M.H. Mat incident. (Id.) Lastly, Alexander
noted that the Carolina Mat incident occurred on June 24 or June 25. (Id.) When Samuels
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noted that Alexander was providing additional explanations, Alexander responded that he
and Carolina previously discussed the incidents with Romero. (Id.)
Samuels also met with and interviewed Carolina. (Id. at 38–42.) After Samuels read
the filed dependency petition to Carolina, Carolina “expressed that she did not have an
explanation and that is [sic] hard to catch everything.” (Id. at 40.) Carolina added “that
there have been a couple of times where she turned her head and [C.H.] had thrown himself
back and hit the side of his head.” (Id.) Carolina also told Samuels about the M.H. Mat,
Carolina Mat, Crib, and Emma incidents. (Id. at 40–41.) Carolina reported that that when
she returned from the bathroom during the M.H. Mat incident, C.H.’s head was “cocked
back.” (Id. at 40.) M.H. told her that C.H. had “rolled off the mat.” (Id.) On July 3, M.H.
told Carolina that “he hit the baby’s head on his the [sic] 1/2 inch thick mat pretty hard.”
(Id. at 41.) After telling Samuels about the four incidents, Carolina asserted “that a lot of
this information was provided to . . . Romero.” (Id. at 42.)
Additionally, Samuels interviewed M.H. (Id. at 31–32.) M.H. denied seeing C.H.
fall or hurt himself before. (Id. at 32.) However, when prompted that the Hipschmans
indicated something different, M.H. reported that he was present when C.H. fell and
bumped his head on the floor. (Id.)4
Samuels received several emails from Alexander that day. In one email, Alexander
detailed 	the 	Hipschmans’ 	disagreements 	with 	the 	contents 	of 	the 	detention 	report
Defendants filed with the dependency petition. (Id. at 33–38.) As relevant here, Carolina
indicated that she reported the Emma, Crib, and M.H. Mat incidents to Romero and that
she “gave several events that occurred in which some were not even noted on this report
that may or may not have been the cause for [C.H.’s] injury.” (Id. at 33–35.) The
Hipschmans asserted that Romero did not explain the possibility that there would be a
hospital hold for C.H., but conceded that Romero asked for potential placement options.
4 	It is not clear if M.H. was referring to the Carolina Mat incident; the M.H. Mat incident; or a third,
unidentified event. (See id.)
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(Id. at 36–37.) Carolina also indicated that Romero said “I determine whether or not your
child stays here or goes home with you and your husband.” (Id. at 37.)
The Hipschmans also complained that they were never informed of a “said appt”
until after reading about it in a report. (Id. at 38.) 5 They additionally indicated that, on July
2 at 5:50 p.m., Samuels “barely confirmed” appointments for C.H. on July 9 at 10:00 and
11:30. (Id.)
In a second email, Alexander explained that the Hipschmans “noticed two large
scratches near [C.H.’s] hip and on his upper leg” during a visit. (Id. at 28–29.) Alexander
included images that showed C.H. “on the right lower hip/stomach area” with “two small
red scratches, one located on the crease of the hip and thigh. The other scratch was on the
lower side abdomen close to the other scratch.” (Id. at 28.)
On July 8, Defendants placed C.H. with Thomas and transferred C.H. from the foster
caretaker’s home. (Id. at 42.)
On July 9, Samuels interviewed Emma, who reported that she confused her dates in
her initial statement and clarified that the Emma incident occurred on June 25. (Id. at 45.)
That same day, Alexander emailed Samuels to discuss C.H.’s appointments. (See id.
at 44–45.) Alexander emphasized that
[a]ll of the possible incidents that involved [C.H.] (head hitting crib, falling
off over mat, and 11-year old moving him and hitting his head) WERE NOT
included in the Detention Report, but WERE told to the first [social worker]
(Nidia Romero) when Carolina and I were interviewed the evening we
brought [C.H.] to the hospital.
(Id. at 44.)
On July 10, Samuels spoke with Dr. Plonsker. (Id. at 46.) Although Dr. Plonsker
could not recall specifically what she told the Hipschmans, she recalled them saying that
C.H. hit his head on the crib. (Id.) Dr. Plonsker also clarified that while the pattern of C.H.’s
5 	It is not clear what the Hipschmans meant by “said appt.” (See id.)
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injury is common in his age group, “she did not say that the cause of the injury is often
unknown.” (Id.) Additionally, she recommended a nonaccidental trauma work up because
there was “no known mechanism of the child’s injury.” (Id.)
The following day, Dr. Suresh emailed Samuels to clarify that C.H.’s “injury was
from impact” and “could have occurred by accidental or abusive means.” (Id.) However,
Dr. Suresh “did not feel it was plausible that [C.H.] bumping his head against [Emma’s]
face/mouth would cause [the] injury.” (Id.)
On July 12, Thomas emailed Samuels to express that he was “uncomfortable that
[Samuels] took at least one picture of [C.H.’s] genitals” when she examined the scratches
near C.H.’s groin. (Id. at 47.)
On July 14, the hospital social worker who spoke with the Hipschmans on June 26
emailed Samuels. (Id. at 47–48.) The hospital social worker explained that she was notified
that C.H. had “a skull fracture with a bleed and no known knowledge of how it occurred.”
(Id.) However, she noted that Carolina mentioned the Emma incident, but Carolina
“acknowledged that [C.H.] hitting his head on [Emma’s] lip probably could not have
caused the injury.” (Id. at 48.)
The next day, Samuels told Thomas that “it is protocol for social worker [sic] to
photograph any injuries.” (Id. at 183.) Samuels noted that “the location of the alleged injury
was in [C.H.’s] hip area,” so Samuels “was not specifically trying to photograph [C.H.’s]
genitals.” (Id.)
9. 	The initial dependency proceedings.
On July 1, Defendants filed a dependency petition and detention report with the
juvenile court. (Doc. Nos. 163-2 at 177–78; 189 at 66–86, 88–91.) Both Samuels and
Shehee signed the detention report. (Doc. Nos. 163-2 at 179; 189 at 86.)
The report explained that C.H. was admitted to Rady on June 26 “due to an
unexplained skull fracture with bleeding.” (Doc. No. 189 at 68.) It added that Defendants
were “worried that [C.H.] will continue to be exposed to severe injury while in the care of
the parents, which could lead to further life threatening injuries, including death.” (Id.)
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Further, the Hipschmans’ “explanation for the injury to the child is questionable or
inconsistent with the type of injury, AND the nature of the injury suggests that the child’s
safety may be of immediate concern.” (Id.)
In summarizing the initial referral to Defendants, the report indicated that
[t]he parents did not have a plausible explanation for the injuries. The parents
report that the day prior (06/25/2020) the child slammed his head into the
maternal grandmother’s mouth causing the grandmother’s mouth to bleed. It
was also reported that the child his head [sic] on the inside of his crib.
(Id. at 68–69.)
On Romero’s interviews with the Hipschmans, the report noted that “[t]he mother
denied having any knowledge as to what happened to the child” and that “[w]hen asked if
she could remember anything that could have happened that might have resulted in the
baby being injured, she denied their [sic] being anything.” (Id. at 69.) Meanwhile,
Alexander “denied having any knowledge, [sic] as to what happened” and “denied [C.H.]
scooting himself and falling off the bed or hitting himself on the bed with anything.” (Id.
at 69–70.) However, the report explained that the Hipschmans reported the Emma and Crib
incidents. (Id. at 69.)
Dr. Vega’s consultation note was also quoted as saying C.H.’s
injury would have been caused by direct impact to the left side of his skull. In
a young infant who requires constant supervision, the events leading to this
severe injury would have been readily apparent to any prudent caregiver. In
the absence of a plausible explanation, this injury is highly concerning for
non-accidental trauma.
(Id. at 70.) The report also explained that Dr. Suresh “indicated that that [sic] the child’s
injury could not have been generated by the head force of him hitting the grandmother’s
mouth.” (Id.)
Turning to Samuels’ investigation, the report noted that Dr. Vega explained that
C.H.’s injury could have occurred “from a fall, however that explanation was not provided
by the parents” and that “generally a child does not suffer any injury from a short fall of 2-
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3 feet high. Never the less [sic], an injury can occur if the child fell from a height of 2-3
feet or greater.” (Id. at 71.) The report also included Dr. Vega’s explanation that C.H.’s
injury “could have occurred by the impact from his head hitting the floor from a fall or if
someone hit the child directly in the head,” but that there was no “plausible explanation.”
(Id.) Additionally, Dr. Vega could not corroborate Dr. Plonsker’s purported comments
using Dr. Plonsker’s notes. (Id.)
The report also included details from Samuels’ interviews with Emma and Frank,
specifically Emma’s recollection that the Emma incident occurred on June 24 and her
denial that the incident caused her mouth to bleed, as well as Frank’s suggestion that C.H.
may have hit his head on the crib. (Id. at 71–73.)
The report’s analysis was summarized as
[t]he parents have provided statements and explanations of how the child
could have possibly suffered the skull fracture. However, after the child was
examined by a medical professional and the parent statements were taken into
account, it was determined that the explanations given by the parents were not
consistent with the injuries that occurred to the child.
(Id. at 73.) In particular, the report pointed out the discrepancy between the Hipschmans’
account that the Emma incident occurred on June 25 and caused Emma’s mouth to bleed,
and Emma’s account that the Emma incident occurred on June 24 and did not cause her
any injury. (Id. at 73–74.)
The report included a section summarizing Romero’s and Samuels’ interviews. (Id.
at 75–83.) However, the report did not mention either the Carolina Mat or M.H. Mat
incidents, nor did it mention Romero’s interview with M.H. (See id. at 66–86.) It ultimately
recommended that the juvenile court make certain findings, including that C.H. remain in
Defendants’ custody. (Id. at 84–86.)
Based on the detention report, the juvenile court determined that Defendants should
retain custody of C.H. (Id. at 93–95.) In doing so, the juvenile court “AUTHORIZE[D]
PARENTS TO BE PRESENT AT MEDICAL APPOINTMENTS FOR THE MINOR.”
(Id. at 94.)
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10. 	The Hipschmans’ account of C.H.’s medical examinations while in
Defendants’ custody.
According to Carolina, after Romero removed C.H. from the Hipschmans’ custody,
Romero told Carolina that “they had just finished an intake exam on” C.H. at Polinsky
Center. (Doc. No. 191 at 12.)
In early July, C.H. had a routine post-emergency room visit with his pediatrician,
which Carolina attended. (Doc. Nos. 163-2 at 40; 190 at 460.)
On July 7, the Hipschmans observed two scratches near C.H.’s groin. (Doc. Nos.
163-2 at 35–36; 189 at 28–29.) The Hipschmans notified Samuels of the scratches and
raised concerns about the care provided by the foster caretaker. (Doc. Nos. 163-2 at 36–
37; 189 at 28–29.) Around July 12, Samuels took photos of the scratches. (Doc. Nos. 189
at 47, 183.)
On July 9, C.H. had two appointments at the Chadwick Center: a full-body scan with
the radiology department (the “skeletal survey”) and a follow-up visit (the “general
examination”). (Doc. No. 163-2 at 42–43.) Carolina objected to the skeletal survey to
Samuels, but nevertheless accompanied C.H. for the scan. (Doc. No. 190 at 462–63.)
Carolina states that only Thomas was allowed to accompany C.H. for the general
examination because Samuels stopped Carolina from entering the room. (Doc. Nos. 163-2
at 44; 190 at 463; see also Doc. No. 163-2 at 45 (“But I did ask the front girl [sic] if I could
go in there and she said that’s not a problem. But [Samuels] told me I couldn’t go in
there.”).) After the general examination, Carolina spoke with Dr. Vega. (Doc. No. 190 at
464–65.) Dr. Vega informed Carolina that the medical staff were going to recommend
“dismissal for these charges. We do believe that his injuries were accidental and not caused
by neglect or abuse.” (Id. at 465.)
That evening, Alexander emailed Samuels that “Carolina was not allowed the right
to be present during [C.H.’s] appointment at the Chadwick Center.” (Doc. No. 189 at 44.)
Alexander acknowledged “that there are certain policies at a hospital or a medical facility,
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especially during a pandemic.” (Id.) Additionally, Alexander asserted that Dr. Vega told
Carolina that C.H. “falling over off the mat could have caused the facture.” (Id.)
11. 	Defendants’ account of C.H.’s medical examinations while in
Defendants’ custody.
In early July, C.H. had a “well-child exam” with his pediatrician. (Doc. No. 190 at
483.) Samuels and Carolina attended the appointment. (Id.)
Samuels’ notes concede Samuels examined and photographed the scratches near
C.H.’s groin. (Doc. No. 189 at 183.)
At some point, Rady staff ordered the skeletal survey and general examination. (Doc.
No. 190 at 483–84.) Samuels did not attend either the skeletal survey or the general
examination. (Id. at 486.)
12. 	Medical staffs’ account of C.H.’s medical examinations while in
Defendants’ custody.
No party has provided records from C.H.’s early July examination.
On July 9, the skeletal survey was performed on C.H. to see if an earlier scan
presented a false negative for additional injuries. (See Doc. No. 163-2 at 151.)
That same day, Dr. Ayson and Dr. Vega conducted the general examination at
Chadwick Center. (Doc. Nos. 163-2 at 86; 189 at 97–101.) At that time, the hospital had
COVID precautions in place that would limit the number of people present in an
examination room. (Doc. No. 163-2 at 92–93.) However, Dr. Ayson’s notes indicate that
both Thomas and Carolina were present during the general examination, stating “[s]upport
person present during exam: paternal grandfather, mother.” (Doc. Nos. 163-2 at 230; 189
at 97.)
The notes also explained that Defendants informed Dr. Ayson and Dr. Vega that
Alexander identified the Crib, M.H. Mat, and Carolina Mat incidents as possible causes of
C.H.’s injury. (Doc. Nos. 163-2 at 230–31; 189 at 97.) Defendants reported to medical staff
that Carolina also identified the M.H. Mat, Carolina Mat, and Crib incidents as possible
causes. (Doc. Nos. 163-2 at 231; 189 at 97–98.) The notes relayed that Carolina learned
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that C.H hit his head during the M.H. Mat incident on July 3. (Doc. No. 163-2 at 231.)
Additionally, Defendants told Dr. Ayson and Dr. Vega that M.H. initially denied
knowledge of any trauma during a June 27 interview, but later stated that C.H. fell sideways
while sitting on his floor mat during a July 7 interview. (Doc. Nos. 163-2 at 231; 189 at
98.)
When Dr. Ayson and Dr. Vega spoke with Carolina around the time of the general
examination, Carolina “corroborated the history provided to [Defendants].” (Doc. Nos.
163-2 at 231; 189 at 98.)
Dr. Vega summarized her conclusions as
[C.H.’s] head injuries would have been caused by direct impact to the left side
of his skull. In early-mobile infants, these types of injuries generally occur
accidentally from a short fall. The parents have provided additional history
which includes an event where [C.H.] fell from sitting position and hit the left
side of his head onto a wooden floor. This would be a plausible explanation
for [C.H.’s] head injuries. Additionally, because the child promptly returned
to baseline and no injuries were noted, it is conceivable that the parents would
not have perceived this event or other reported incidents of head trauma to be
significant enough to seek medical attention nor mention this history during
[C.H.’s] initial evaluation. Notably, when the child developed symptoms
(head swelling, persistent fussiness), the parents sought medical attention. For
these reasons, the parents [sic] response does not represent medical neglect.
In many similar situations with this type of skull fracture, head swelling is the
first noted symptom and can actually take multiple days to develop to a
noticeable degree.
(Doc. Nos. 163-2 at 233; 189 at 100.)
13. 	The termination of dependency proceedings.
On July 17, Samuels completed an addendum report for the juvenile court. (Doc.
No. 189 at 103–20.) The addendum explained that Defendants had “received new
information regarding the potential causes of the child, [C.H.’s,] head injury, and
respectfully recommend[ed] that the dependency petition for [C.H.] be dismissed.” (Id. at
104.) Specifically, the addendum stated that
[b]ased upon the evidence and increased timeline provided, the medical
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experts were able to make a final determination that the injury was not due to
abuse and/or neglect. Based upon the information that the child is not a stable
sitter, he may have fallen or tipped over and hit his head, causing the injury,
[Defendants are] requesting to dismiss the petition.
(Id. at 111.)
On August 4, the juvenile court dismissed the dependency petition for C.H. (Id. at
124–25.)6
B. 	Procedural Background
The Hipschmans initiated this action in 2022. (Doc. No. 1.) Following two
amendments to the complaint (see Doc. Nos. 24; 72), the Hipschmans seek partial summary
judgment (Doc. No. 167) and Defendants have requested summary judgment on all claims
(Doc. Nos. 163; 164). Defendants have additionally moved to exclude portions of the
Hipschmans’ experts’ opinions and testimony. (Doc. Nos. 159; 160.)
This Omnibus Order follows.
II. 	LEGAL STANDARD
A. 	Daubert Motions
Federal Rule of Evidence 702 governs the admissibility of expert testimony.
Pursuant to the Rule,
[a] witness who is qualified as an expert by knowledge, skill, experience,
training, or education may testify in the form of an opinion or otherwise if the
proponent demonstrates to the court that it is more likely than not that:
(a) 	the expert’s scientific, technical, or other specialized knowledge will
help the trier of fact to understand the evidence or to determine a fact
in issue;
(b) 	the testimony is based on sufficient facts or data;
(c) 	the testimony is the product of reliable principles and methods; and
(d) 	the expert’s opinion reflects a reliable application of the principles and
methods to the facts of the case.
6 	The juvenile court was closed between Monday, July 20, and Friday, July 31, due to the COVID-
19 pandemic. (Id. at 122.)
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Prior to admitting expert testimony, the trial court must make “a preliminary
assessment 	of 	whether 	the 	reasoning 	or 	methodology 	underlying 	the 	testimony 	is
scientifically valid and of whether that reasoning or methodology properly can be applied
to the facts in issue.” Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 592–93 (1993).
The trial court acts as a “gatekeeper” by making a preliminary determination of whether
the expert’s proposed testimony is not only relevant, but reliable. Estate of Barabin v.
AstenJohnson, Inc., 740 F.3d 457, 463 (9th Cir. 2014), overruled in part on other grounds
by United States v. Bacon, 979 F.3d 766 (9th Cir. 2020). This two-step assessment requires
consideration of whether (1) the reasoning or methodology underlying the testimony is
scientifically valid (the reliability prong); and (2) whether the reasoning or methodology
properly can be applied to the facts in issue (the relevance prong). Daubert, 509 U.S. at
592–93; Kennedy v. Collagen Corp., 161 F.3d 1226, 1228 (9th Cir. 1998).
The proponent of the expert testimony has the burden of proving that the proposed
testimony is admissible under Federal Rule of Evidence 702, Daubert, and its progeny.
Lust ex rel Lust v. Merrell Dow Pharm., Inc., 89 F.3d 594, 598 (9th Cir. 1996). This means
“the district court can exclude [an expert’s] opinion if the expert fails to identify and defend
the reasons” for his conclusions. Id. Where the expert’s testimony is not the product of
peer-reviewed research produced outside the course of litigation, “the expert ‘must explain
precisely how [he] went about reaching [his] conclusions and point to some objective
source . . . to show that [he has] followed the scientific method, as it is practiced by (at
least) a recognized minority of scientists in [his] field.’” Id. at 597 (quoting Daubert v.
Merrell Dow Pharm., Inc., 43 F.3d 1311, 1318–19 (9th Cir. 1995)).
In general, the 	Daubert 	analysis focuses on the principles and methodology
underlying an expert’s testimony, not on the expert’s ultimate conclusions. Daubert, 509
U.S. 	at 	595. 	However, 	the 	Supreme 	Court 	has 	cautioned 	that 	“conclusions 	and
methodology are not entirely distinct from one another.” Gen. Elec. Co. v. Joiner, 522 U.S.
136, 146 (1997). As such, a “court may conclude that there is simply too great an analytical
gap between the data and the opinion proffered.” Id.
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Pursuant to the Court’s rules, motions “addressing the qualifications or testimony of
a proposed expert must be brought by the dispositive motion hearing cut-off. They will not
be entertained as motions in limine.” J. Battaglia Civ. Case Proc. § III.I.
B. 	Motions for Summary Judgment
Granting summary judgment under Federal Rule of Civil Procedure 56 is proper if
“there is no genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 319, 327
(1986). A fact is material when, under the governing substantive law, it could affect the
outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute
about a material fact is genuine “if the evidence is such that a reasonable jury could return
a verdict for the nonmoving party.” Id.
The movant has the initial burden of demonstrating that summary judgment is
proper. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 152 (1970). The burden then shifts
to the opposing party to provide admissible evidence beyond the pleadings to show that
summary judgment is not appropriate. See Celotex, 477 U.S. at 322, 324. The opponent
must 	“identify 	with 	reasonable 	particularity 	the 	evidence 	that 	precludes 	summary
judgment.” Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996). In considering evidence
during the summary judgment stage, courts do not weigh conflicting evidence or make
credibility determinations. Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir.
2007). Instead, courts draw all inferences in the light most favorable to the non-moving
party. Id.
III. 	DISCUSSION
A. 	Evidentiary Motions and Requests
1. 	Motions to Exclude
a. 	Melinda Murphy, M.A.
The Hipschmans have retained Murphy as a social work expert to opine on
the standard of care and practice in child abuse investigations, training,
planning, policy, evaluating, decision making related to child abuse and child
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abuse investigations, and related issues and topics regarding Defendants [sic]
conduct in this case in relation to the unwarranted seizure of the Hipschman’s
[sic] child as well as the unwarranted and non-consensual medical exams and
treatments inflicted upon him by Defendants and/or at their direction.
(Doc. No. 159-2 at 8 ¶ 2.) The Hipschmans also anticipated that Murphy may address
matters and opinions “advanced by other experts on similar or related subjects in this
action.” (Id.)
Defendants object to a number of Murphy’s opinions offered in her expert report and
testimony, including
1. Opinions that certain conduct by the social worker(s) “shocked my
conscience” 	and 	that 	the 	social 	worker(s) 	displayed 	“deliberate
indifference.”
2. Opinions that Social Workers Romero and Padilla are/were “dishonest.”
3. Opinions that Social Worker Samuels “deliberately” and/or “recklessly”
misled the Juvenile Court.
4. Opinions that C.H. (who is not a Plaintiff) has suffered “trauma of seizure”
of separating a child from his parent that can include “eneurisis (the
inability to control urination), encopresis (the inability to control bowels),
anxiety, 	depression, 	self-injurious 	behaviors 	such 	as 	cutting, 	diet
disturbances, sleep disturbances, hostile behavior, aggressive behavior,
and can harm their ability to form relationships in the future.
5. Opinions regarding Plaintiff Carolina Hipschman’s ability to breastfeed.
6. Opinions regarding any emotional and/or physical symptoms or injuries
sustained by Plaintiff Carolina Hipschman.
7. Opinions that Plaintiff Alexander Hipschman has been “affected” by the
seizure of his son.
(Doc. 	No. 	159-1 	at 	2–3.) 	Defendants 	contend 	these 	opinions 	are 	improper 	legal
conclusions, improper opinions on witness credibility, beyond the scope of Murphy’s
expertise, lack foundation, irrelevant, and more prejudicial than probative. (Id. at 3.)
The Court agrees that Murphy’s opinions on these subjects are not admissible.
Beginning with Murphy’s opinions that social workers’ conduct “shocked [her]
conscience” 	and 	displayed 	“deliberate 	indifference” 	(item 	1) 	and 	that 	Samuels
“deliberately” and/or “recklessly misled the juvenile court (item 3), the Hipschmans
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contend that these are admissible opinions that “describe[] deviations from child welfare
standards . . . within [Murphy’s] expertise, not legal liability.” (Doc. No. 173 at 13–14.)
The Hipschmans add that this terminology is “context-specific to child welfare, not
intended to mirror legal standards.” (Id. at 14 (citing Doc. No. 173-1 ¶ 14).)
Pursuant to Federal Rule of Evidence 704(a), “[a]n opinion is not objectionable just
because it embraces an ultimate issue.” Nevertheless, “an expert witness cannot give an
opinion as to her legal conclusion, i.e., an opinion on an ultimate issue of law.” United
States v. Diaz, 876 F.3d 1194, 1197 (9th Cir. 2017) (quoting Hangarter v. Provident Life
& Accident Ins. Co., 373 F.3d 998, 1016 (9th Cir. 2004)). This is because “[w]hen an expert
undertakes to tell the jury what result to reach, this does not aid the jury in making a
decision, but rather attempts to substitute the expert’s judgment for the jury’s.” Id. (quoting
United States v. Duncan, 42 F.3d 97, 101 (2d Cir. 1994)). Nevertheless, “it is sometimes
impossible for an expert to render his or her opinion on a subject without resorting to
language that recurs in the applicable legal standard.” Id. at 1198. Thus, “if the terms . . .
do not have a specialized meaning in law and do not represent an attempt to instruct the
jury on the law, or how to apply the law to the facts of the case, the testimony is not an
impermissible legal conclusion.” Id. at 1198–99.
Murphy’s chosen language is improper and will be excluded. “To show a violation
of the right to familial association under the Fourteenth Amendment . . . , a plaintiff must
establish that an officer’s conduct ‘shocks the conscience.’” Scott v. Smith, 109 F.4th 1215,
1228 (9th Cir. 2024) (quoting Nicholson v. City of Los Angeles, 935 F.3d 685, 692 (9th Cir.
2019)). “Deliberate indifference” is a subset of the “shocks the conscience” standard.
Porter v. Osborn, 546 F.3d 1131, 1137 (9th Cir. 2008). “Deliberate indifference is the
conscious or reckless disregard of the consequences of one’s acts or omissions.” Gantt v.
City of Los Angeles, 717 F.3d 702, 708 (9th Cir. 2013). Under these circumstances, the
terms “shocked [her] conscience,” “deliberate indifference,” “deliberate,” and “reckless”
are clearly specialized legal terms when used in this matter. These terms go to the crux of
this matter; they are not merely “ancillary to the ultimate issue[s].” Cf. Hangarter, 373 F.3d
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at 1017. Accordingly, Murphy’s use of these terms invades the province of the jury and
Murphy is prohibited from using the phrases. Diaz, 876 F.3d at 1197.
Turning to Murphy’s opinions on whether any of the social workers were dishonest
(items 2 and 3), the Hipschmans assert that Murphy is merely providing “evaluations of
professional compliance” that are “relevant to the judicial deception claim.” (Doc. No. 173
at 15.)
To the extent the Hipschmans seek to preserve Murphy’s opinions on the credibility
of the social workers to address Claim 3 and Count 3 of Claim 4, such opinions are moot
in light of the Court’s grant of summary judgment to Defendants on both Claim 3 and
Claim 4, Count 3. (Infra at 59–65, 71.) Even if Murphy’s opinions are not moot, the Ninth
Circuit has long recognized that “credibility is a matter to be decided by the jury.” United
States v. Sanchez, 176 F.3d 1214, 1224 (9th Cir. 1999) (citing cases). Experts like Murphy
consequently are “not permitted to testify specifically to a witness’ credibility.” United
States v. Candoli, 870 F.2d 496, 506 (9th Cir. 1989).
Next, Murphy’s opinions on the removal’s impact on C.H. (item 4), are irrelevant,
beyond the scope of her expertise, and unduly confusing. Although the Hipschmans assert
that “Murphy’s trauma-related opinions have adequate foundation,” they fail to explain
how Murphy’s opinion regarding potential traumatic effects to C.H. is relevant here. (Doc.
No. 173 at 15–16; see also Doc. No. 173-1 ¶¶ 19–22.) The Hipschmans also concede that
Murphy cannot provide “specific diagnoses,” meaning Murphy is not qualified to connect
any potential effects C.H. has or has not experienced to the removal. (Doc. No. 173 at 16.)
In turn, Murphy’s discussion of potential impacts on C.H. risks confusing the issues before
the jury. Fed. R. Evid. 403.7
Murphy’s discussion of the removal’s impacts on Carolina and Alexander (items 5–
7), is also inadmissible. Murphy states in her report that Carolina’s “milk supply had
7 	The Hipschmans apparently intend to conflate the potential impacts on C.H. with the Hipschmans’
damages by claiming “these opinions contextualize family-wide harm.” (Doc. No. 173 at 16.)
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dwindled” and that M.H. testified that Carolina “is sad and becomes emotional to where
she cries.” (Doc. No. 159-2 at 43.) Murphy adds that Alexander was “affected” and his
“employment was hampered” (Id.) These statements must be excluded.
First, Murphy is not qualified to testify to the impacts of C.H.’s removal on the
Hipschmans. The Hipschmans did not qualify Murphy to opine on the removal’s impacts.
(See 	id. 	at 8 ¶ 2.) Thus, Murphy’s opinions connecting the removal to Carolina’s
“dwindled” milk supply and Alexander being “affected” go beyond the scope of her
expertise. Cf., e.g., Brown v. Google, LLC, 20-cv-3664-YGR, 2022 WL 17961497, at *11
(N.D. Cal. Dec. 12, 2022) (explaining expert “opinion must be rooted in the expert’s
relevant expertise.”). Indeed, Murphy tacitly concedes that these opinions veer outside her
lane because her “focus is on social work failures and their broader impacts – not the
specific impacts the Defendants’ conduct had on Mrs. Hispchman.” (Doc. No. 173-1 ¶ 22.)
Second, Murphy’s parroting of M.H.’s testimony is also improper. A “party cannot
call an expert simply as a conduit for introducing hearsay under the guise that the testifying
expert used the hearsay as the basis of [her] testimony.” Marvel Characters, Inc. v. Kirby,
726 F.3d 119, 136 (2d Cir. 2013) (quoting Malletier v. Dooney & Bourke, Inc., 525 F.
Supp. 2d 558, 666 (S.D.N.Y. 2007)). Since Murphy is not qualified to opine on the
removal’s impacts on the Hipschmans, her inclusion of M.H.’s testimony in her report
appears to be nothing more than a naked attempt to introduce hearsay improperly.
Accordingly, Defendants’ motion to exclude portions of Murphy’s opinions and
testimony is GRANTED.
b. 	Stephen Papaleo, Ph.D.
The Hipschmans have retained Dr. Papaleo as a specialist in “the clinical and
forensic assessment and treatment of the victims of traumatic or stressful events.” (Doc.
No. 160-2 at 8–9 ¶ 3.) Accordingly, Dr. Papaleo would “provide his opinions and
conclusions regarding the nature and extent of the injuries suffered by the Plaintiffs as a
result of the alleged misconduct of the Defendants,” including “the diagnoses, prognoses,
and anticipated cost of future necessary mental health care services for Plaintiffs.” (Id.)
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Defendants object to a number of Dr. Papaleo’s opinions offered in his expert report
and testimony, including
1. Opinions about Defendant Nidia Romero’s conduct as a social worker.
2. Opinions about Defendant Elizabeth Samuels’ conduct as a social worker.
3. Opinions about child abuse pediatrician Sarah Vega, M.D.’s deposition
testimony.
4. Opinions about neurosurgeon Jillian Plonsker, M.D.’s role in the child
welfare investigation.
5. Opinions regarding C.H.’s “loss” or any other damages related to C.H.
6. Opinions regarding credibility of certain parties in the case.
7. Opinions that Plaintiff Carolina Hipschman is not employable.
8. Opinions that Ketamine is a recommended option to treat Carolina
Hipschman’s current symptoms.
(Doc. No. 160-1 at 3.) Defendants contend these opinions are improper opinions on witness
credibility, beyond the scope of Dr. Papaleo’s expertise, lack foundation, irrelevant, and
more prejudicial than probative. (Id.)
The Court agrees that a majority of these opinions are not admissible.
Starting with Dr. Papaleo’s discussion of the Individual Defendants’ conduct (items
1 and 2), the Hipschmans do not assert that Dr. Papaleo is qualified to opine on the
Individual Defendants’ conduct. (See Doc. No. 173 at 17–18.) Instead, the Hipschmans
highlight that Dr. Papaleo’s qualifications “relate[] to assessing psychological harm.” (Id.
at 18.) Nevertheless, the Hipschmans defend Dr. Papaleo’s characterizations of the
Individual Defendants’ conduct as being “contextual to explaining the cause of the trauma
Mrs. Hipschman suffered, not assessments of professional standards.” (Id. (citing Doc. No.
173-2 at 74–76).)
The Court disagrees. The statements identified by Defendants go beyond providing
context and instead offer opinions that Dr. Papaleo is not qualified to provide. For instance,
Defendants 	object 	to 	Dr. 	Papaleo’s 	statements 	indicating 	that 	Romero 	“only 	had
‘speculative concerns’” and that “there was no legitimate concern that the parents had or
would abuse their child.” (Doc. No. 160-1 at 4 (quoting Doc. No. 160-2 at 33, 35).)
However, the Hipschmans have not qualified Dr. Papaleo to opine on the legitimacy or the
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quality of a social worker’s concerns when investigating potential child abuse. (See Doc.
No. 160-2 at 8–9 ¶ 3.) Thus, Dr. Papaleo’s characterizations are not “rooted” in his relevant
expertise and must be excluded. See Brown, 20-cv-3664-YGR, 2022 WL 17961497, at *11.
Turning to Dr. Papaleo’s discussion regarding Dr. Vega and Dr. Plonsker (items 3
and 4), it is not clear to that Dr. Papaleo offers any opinions about the doctors, their
conduct, or their statements. In particular, Defendants highlight Dr. Papaleo’s statements
that “[i]t is important to restate that at the outset of the family’s ordeal, Jillian Plonsker,
M.D., the Neurosurgeon, found no evidence that child abuse had occurred” and that
Dr. Vega testified she did not have enough information on June 26, 2020, to
conclude one way or another whether the bump on [C.H.’s] head had been
caused by accidental or non-accidental means. She also testified that a fall-
over from a sitting position to the floor could explain the injury.
(Doc. No. 160-1 at 6 (quoting Doc. No. 160-2 at 33, 35).) It appears these statements merely
quote or paraphrase statements made by Dr. Plonsker and Dr. Vega. Additionally, rather
than simply parroting Dr. Plonsker’s deposition testimony, Dr. Papaleo connected her
purported finding to his analysis. For example, Dr. Papaleo noted that Carolina told
Romero about Dr. Plonsker’s assessment and felt that Romero “refused to accept this
account.” (Doc. No. 173-2 at 78–79.) In turn, Carolina felt that “she had already been found
‘guilty’” by the social workers. (Id. at 79.) Such a connection can be reasonably inferred
between Dr. Vega’s testimony and Carolina. Accordingly, the Court sees no reason to
exclude these statements. Cf. Marvel Characters, 726 F.3d at 136.
As for Dr. Papaleo’s opinions about C.H.’s “loss” or damages (item 5), the Court
agrees the opinions are not admissible. The Hipschmans defend Dr. Papaleo’s “discussion
of C.H.’s potential developmental impacts” as a way to “contextualize[] the mother’s
psychological harm.” (Doc. No. 173 at 20.) However, a review of Dr. Papaleo’s expert
report shows that Dr. Papaleo does not connect C.H.’s potential developmental impacts to
Carolina’s asserted harms. (See generally Doc. No. 173-2 at 63–90.) Dr. Papaleo’s report
discusses the impacts of the removal on Carolina for multiple pages. (See id. at 76–84.) It
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is only at the end of this section that Dr. Papaleo turns to the potential impacts on C.H. (Id.
at 84.) Tellingly, instead of connecting the potential impacts on C.H. to the effects on
Carolina, Dr. Papaleo concludes this portion by stating that “the extent to which, if any,
[C.H.] may have been negatively impacted by his separation from his mother cannot yet
be determined.” (Id.) Thus, these opinions are neither contextual nor relevant.
Moving on to Dr. Papaleo’s opinions on the credibility of certain parties (item 6),
Dr. Papaleo is prohibited from opining on the credibility of other witnesses and parties for
the same reason as Murphy. Sanchez, 176 F.3d at 1224; Candoli, 870 F.2d at 506.
Regarding Dr. Papaleo’s conclusion that Carolina is “not employable” (item 7), the
Hipschmans go to great lengths to argue that the opinion is relevant. (See Doc. No. 173 at
20–21.) The Hipschmans add that the conclusion “is based on clinical observations and
standardized tests.” (Id. at 19.) Finally, the Hipschmans assert that this opinion “falls within
his expertise.” (Id. (citing Hangarter, 373 F.3d at 1016).) But unlike in Hangarter where
the proponent was able to establish that the proposed expert had knowledge, skill, and
experience to opine “on the practices and norms of insurance companies in the context of
a bad faith claim,” 373 F.3d at 1016, the Hipschmans do not point to any knowledge, skill,
or experience that qualifies Dr. Papaleo to comment on a person’s employability. (See
generally Doc. No. 173 at 19–21.) The Hipschmans have accordingly failed to demonstrate
that Dr. Papaleo’s opinion on Carolina’s employability is admissible. Lust, 89 F.3d at 598.
Lastly, the Court concludes that Dr. Papaleo’s recommendation that Carolina
“consider” ketamine infusion treatment (item 8) is admissible. The Hipschmans assert that
Dr. Papaleo’s suggestion that Carolina consider ketamine treatment “is grounded in
professional literature on PTSD therapies” and “fall within his expertise” and will help the
jury understand “the extent of Plaintiffs’ psychological harm.” (Doc. No. 173 at 19, 21.)
Defendants respond that Dr. Papaleo’s suggestion should be excluded because he is not
recommending that Carolina pursue ketamine treatment. (Doc. No. 160-1 at 8 (citing Doc.
No. 160-2 at 56–57).) The Court disagrees. Dr. Papaleo’s suggestion is relevant because it
probes the potential outer bounds of Carolina’s damages. Defendants can alleviate any
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alleged risk of confusion on cross-examination by inquiring into whether or not such
treatments are necessary and the treatments Dr. Papaleo actually does recommend.
Accordingly, Defendants’ motion to exclude portions of Dr. Papaleo’s opinions and
testimony is GRANTED IN PART and DENIED IN PART.
2. 	Request for Judicial Notice
Defendants request that the Court “take judicial notice of the contents” of certain
documents filed in the juvenile court dependency proceedings for C.H. (Doc. Nos. 163-3
at 2; 164-3 at 2.) Defendants assert that judicial notice “is proper because public records
are the types of documents that are properly noticed under [Federal Rule of Evidence] 201.”
(Doc. Nos. 163-3 at 3; 164-3 at 3.)
The Hipschmans object to Defendants’ request, arguing that the Court “cannot take
judicial notice of the truth of any facts or findings recited in a another [sic] court’s opinion,
orders, or court filed documents” and that judicial notice is “improper where the facts are
reasonably subject to dispute.” (Doc. No. 175-3 at 4.) The Hipschmans add that Defendants
have failed to authenticate the identified documents and to overcome potential hearsay
objections. (Id. at 7.)
Pursuant to Federal Rule of Evidence 201, courts “may judicially notice a fact that
is not subject to reasonable dispute because it: (1) is generally known within the trial
court’s territorial jurisdiction; or (2) can be accurately and readily determined from sources
whose accuracy cannot reasonably be questioned.” “Accordingly, ‘[a] court may take
judicial notice of matters of public record . . . .’ But a court cannot take judicial notice of
disputed facts contained in such public records.” Khoja v. Orexigen Therapeutics, Inc., 899
F.3d 988, 999 (9th Cir. 2018) (quoting Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th
Cir. 2001)). Granting judicial notice provides a substantial benefit in cases such as this one.
“In a civil case, the court must instruct the jury to accept the noticed fact as conclusive.”
Fed. R. Evid. 201(f).
The Court DENIES Defendants’ request. As the Ninth Circuit explained, “a court
cannot take judicial notice of disputed facts contained in . . . public records.” Khoja, 899
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F.3d at 999. The Hipschmans challenge many of the purported facts presented in the
dependency proceedings. (See, e.g., Doc. No. 175 at 31–35 (alleging documents filed in
dependency proceedings constitute judicial deception).) Defendants’ request that the Court
“take judicial notice of the contents” (Doc. Nos. 163-3 at 2; 164-3 at 2 (emphasis added))
of the juvenile court filings is consequently inappropriate. See Khoja, 899 F.3d at 999.
Nevertheless, the Court accepts the juvenile court records for the limited purpose of
adjudicating the cross-motions for summary judgment. See Fed. R. Civ. P. 56(c). The Court
notes that the Hipschmans have offered filings from other court proceedings for the same
purpose. (See Doc. Nos. 167-3 at 48–50; 190 at 515–20.)
3. 	Evidentiary Objections
The parties raise a number of objections to the evidence submitted in support of their
opposing cross-motions. (Doc. No. 175 at 43–44; 186-1.) All objections are overruled.
For a motion for summary judgment, “a party does not necessarily have to produce
evidence in a form that would be admissible at trial.” Block v. City of Los Angeles, 253
F.3d 410, 418–19 (9th Cir. 2001). “Rule 56[(c)] requires only that evidence ‘would be
admissible’, not that it presently be admissible.” Burch v. Regents of Univ. of Cal., 433 F.
Supp. 2d 1110, 1120 (E.D. Cal. 2006). Thus, “[t]he focus is on the admissibility of the
evidence’s contents, not its form.” Estate of Hernandez-Rojas ex rel. Hernandez v. United
States, 62 F. Supp. 3d 1169, 1174 (S.D. Cal. 2014) (citing Fonseca v. Sysco Food Servs. of
Ariz., Inc., 374 F.3d 840, 846 (9th Cir. 2004)); Fraser v. Goodale, 342 F.3d 1032, 1036
(9th Cir. 2003)). And while a court will consider a party’s evidentiary objections to a
motion for summary judgment, “[o]bjections such as lack of foundation, speculation,
hearsay[,] and relevance are duplicative of the summary judgment standard itself.” All Star
Seed v. Nationwide Agribusiness Ins. Co., No. 12-cv-00146-L-BLM, 2014 WL 1286561,
at *16 (S.D. Cal. Mar. 31, 2014) (citing Burch, 433 F. Supp. 2d at 1119–20).
The Hipschmans raise primarily relevance, lack of foundation, speculation/lack of
personal knowledge, and hearsay objections. (Doc. No. 175 at 43–44.) These objections
are overruled. See All Star Seed, 2014 WL 1286561, at *16. The Hipschmans also object
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to certain paragraphs in the Declaration of Jeffrey K. Miyamoto (Doc. Nos. 163-4; 164-4)
and the Declaration of Maria Araiza (Greer) (Doc. Nos. 163-6; 164-6) as improper
arguments and vague. (Doc. No. 175 at 43–44.) Insofar as the Court’s decision does not
depend on the statements made in those paragraphs, the Court declines to reach these
remaining evidentiary objections.
Meanwhile, Defendants object to portions of the transcript of the March 27, 2024
deposition of Carolina Hipschman (Doc. No. 191 at 12–13) as hearsay and for lack of
personal knowledge. (Doc. No. 186-1 at 2.) Defendants’ objections do not comply with
this Court’s Civil Case Procedures, which require objections to “be set forth in the parties’
opposition or reply. Separate statements of objections will NOT be allowed. The inclusion
of objections does not expand the page limits set.” J. Battaglia Civ. Case Proc. § III.B.
Defendants submitted their objection as a separate statement of objection and also used the
entirety of the ten-page limit for their reply brief. (See Doc. Nos. 171 at 2; 186; 186-1.)
Accordingly, the Court does not consider Defendants’ objections.
In short, the Court OVERRULES the Hipschmans’ evidentiary objections (Doc.
No. 175 at 43–44) and declines to consider Defendants’ evidentiary objections (Doc. No.
186-1).
B. 	Motions for Summary Judgment
1. 	Claim 1 – Unlawful removal
The Ninth Circuit has established that
[o]fficials may remove a child from the custody of its parent without prior
judicial authorization only if the information they possess at the time of the
seizure is such as provides reasonable cause to believe that the child is in
imminent danger of serious bodily injury and that the scope of the intrusion is
reasonably necessary to avert that specific injury.
Wallis v. Spencer, 202 F.3d 1126, 1138 (9th Cir. 2000). A threat is “imminent” “when
officials have reasonable cause to believe that the child is likely to experience serious
bodily harm in the time that would be required to obtain a warrant.” Demaree v. Pederson,
887 F.3d 870, 878 (9th Cir. 2018) (citing Kirkpatrick v. County of Washoe, 843 F.3d 784,
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790 (9th Cir. 2016)). Warrantless removals are unlawful “unless reasonable avenues of
investigation are first pursued, particularly where it is not clear that a crime has been—or
will be—committed.” Wallis, 202 F.3d at 1138. “The existence of reasonable cause, and
the related questions, are all questions of fact to be determined by the jury.” Id.
Summary judgment in favor of Defendants is improper
if a material question of fact exists regarding whether (1) there was reasonable
cause to believe, on the basis of the information in the possession of the
[Defendants], that [C.H.] faced an immediate threat of serious physical injury
or death; or (2) the actions taken by [Defendants]—removing [C.H.] from [the
Hipschmans’ 	custody]—exceeded 	the 	permissible 	scope 	of 	the 	action
necessary to protect [C.H.] from that immediate threat.
Id.
When assessing a defendant’s claim of qualified immunity, “summary judgment is
improper if, resolving all disputes of fact and credibility in favor the party asserting the
injury, (1) the facts adduced show that the officer’s conduct violated a constitutional right,
and (2) that right was ‘clearly established’ at the time of the violation.” Kirkpatrick, 843
F.3d at 788 (citing Saucier v. Katz, 533 U.S. 194, 201 (2001)). A government official is
entitled to qualified immunity “unless the law at the time of the [alleged violation] clearly
established the unconstitutionality of [the official’s] conduct.” Id.
Here, the Court concludes that material questions of fact exist regarding whether
(1) there was reasonable cause to believe that C.H. faced an immediate threat of serious
physical 	injury, 	(2) Defendants 	pursued 	reasonable 	avenues 	of 	investigation, 	and
(3) removing C.H. exceeded the scope of action needed to protect C.H. Nevertheless,
Defendants are entitled to qualified immunity because the law regarding exigent removals
to prevent neglect has not been clearly established.8
8 	Because the Court concludes that Individual Defendants are entitled to qualified immunity on
Claim 1, the Court declines to address the issue of which specific Individual Defendant(s) may have been
responsible for C.H.’s removal. (See Doc. Nos. 164-1 at 15–16, 20–21; 175 at 24–25.)
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a. 	Defendants may have had reasonable cause to believe that
C.H. faced an immediate threat of serious physical injury.
As a preliminary matter, in assessing whether exigent circumstances may have
justified Defendants’ warrantless removal of C.H., the Court notes that its initial inquiry
considers whether Defendants possessed “reasonable cause to believe that [C.H.] [was] in
imminent danger of serious bodily injury.” Wallis, 202 F.3d at 1138. This is a broader
inquiry than the Hipschmans’ proposal that the Court focus on whether “there is specific,
articulable evidence that provides reasonable cause to believe that a child is in imminent
danger of abuse.” (Doc. No. 167-1 at 16 (quoting Wallis, 202 F.3d at 1138) (emphasis
omitted); see also Doc. No. 175 at 11 (“Defendants must direct the Court to ‘specific,
articulable evidence’ that provides ‘cogent, fact-focused reasonable cause to believe C.H.
would be imminently subject to physical abuse.’”).) The broader inquiry is crucial insofar
as Ninth Circuit precedent makes clear that Defendants are not limited to acting to protect
children in situations where there is intentional abuse. See, e.g., Wallis, 202 F.3d at 1138
(“the police cannot seize children suspected of being abused or neglected unless reasonable
avenues 	of 	investigation 	are 	first 	pursued”) 	(emphasis 	added). 	That 	the 	caselaw
predominantly addresses the issue of intentional abuse merely reflects the facts underlying
the Ninth Circuit’s decisions. Compare, e.g., Demaree, 887 F.3d at 874–75 (alleged sexual
abuse); Burke v. County of Alameda, 586 F.3d 725, 729–30 (9th Cir. 2009) (alleged sexual
and physical abuse); Mabe v. San Bernardino County, Dep’t of Pub. Soc. Servs., 237 F.3d
1101, 1104–05 (9th Cir. 2001) (alleged sexual abuse); Wallis, 202 F.3d at 1131–35 (alleged
sexual and physical abuse); Ram v. Rubin, 118 F.3d 1306, 1309 (9th Cir. 1997) (alleged
sexual abuse); with Kirkpatrick, 843 F.3d at 786–88 (alleged neglect); Rogers v. County of
San Joaquin, 487 F.3d 1288, 1291–94 (9th Cir. 2007) (alleged neglect).
i. 	Serious physical injury from abuse
Beginning with the issue of injury from abuse, there is no evidence that C.H. was at
risk of suffering serious bodily injury from intentional abuse.
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The Hipschmans assert that Defendants’ removal of C.H. from Carolina and
Alexander’s custody was unlawful because there were no exigent circumstances showing
“that Alexander or Carolina either (1) had caused C.H.’s injury or (2) posed a threat to
injure C.H. in the future.” (Doc. No. 167-1 at 18 (emphasis omitted).) Specifically, the
Hipschmans point out that medical professionals could not identify whether C.H.’s injury
“was caused by an accident or was nonaccidental” and that Defendants had no evidence
that Carolina or Alexander injured C.H. or would injure C.H. in the future. (Id. at 17–18.)
In contrast, Defendants assert that they reasonably believed exigent circumstances
were present because
C.H. was only seven months old, preverbal, had a skull fracture that none of
his caregivers could account for, and about which two Rady child abuse
specialists opined resulted from force to the head that was plausibly non-
accidental, and was scheduled to be discharged that very day back into the
environment where he had incurred that injury.
(Doc. No. 164-1 at 16–17.)
The Hipschmans have the better argument here. When basing a removal on
allegations of abuse, the “state may not remove children from their parents’ custody
without a court order unless there is specific, articulable evidence that provides reasonable
cause to believe that a child is in imminent danger of abuse.” Wallis, 202 F.3d at 1138.
Defendants did not have “specific, articulable evidence” that C.H. was abused, much
less that C.H. was at imminent risk of being abused again. At best, Defendants had evidence
that C.H. may have been abused based on Dr. Vega’s observation that, “[i]n the absence of
a plausible explanation, this injury is highly concerning for non-accidental trauma.” (Doc.
No. 189 at 187.) 9 Nevertheless, Dr. Suresh explained that C.H.’s injury “was not
9 	The Hipschmans make much of the fact that the consultation note that Defendants received on
June 26, 2020, was “non-final” and “incomplete” because it was not signed by an attending physician.
(See, e.g., Doc. No. 167-1 at 22.) However, the Hipschmans do not point to any legal basis that required
Defendants to disregard the information contained in the consultation note. (See generally Doc. Nos. 167-
1; 175.) Nor do the Hipschmans point to any legal basis that prevents the Court from considering the
information contained in the consultation note. (See generally Doc. Nos. 167-1; 175.) Tellingly, it appears
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necessarily an abusive type injury” and that medical staff “could not determine the cause
of the injury.” (Doc. No. 189 at 61; see also id. at 13.) Consistent with the medical staff’s
inability to identify a cause for C.H.’s injury, Defendants concede that they “did not have
any evidence that Alexander Hipschman had intentionally injured C.H. at the time of
C.H.’s removal” and that they “did not have any evidence that Carolina Hipschman had
intentionally injured C.H. at the time of C.H.’s removal.” (Doc. No. 167-3 at 12, 25–26.)
Defendants’ actions also belie any implication that C.H. was at imminent risk of
being abused by Carolina or Alexander. An “official’s prior willingness to leave [a] child[]
in [its] home militates against a finding of exigency.” Rogers, 487 F.3d at 1295. This is
because leaving a child in the care of his suspected abuser “raises a serious question about
[the social worker’s] belief that [the child] was in imminent danger.” Mabe, 237 F.3d at
1108. This is particularly so when the alleged abuse is something like a physical beating,
which “could happen at any time of the day.” Id. Under such circumstances, leaving an
abused child with his abuser to obtain a court order creates an opportunity for the abuser
to “abuse the child again or flee with him.” White v. Pierce County, 797 F.2d 812, 815–16
(9th Cir. 1986). Here, Romero left C.H. in the Hipschmans’ care on the night of June 26.
(Doc. No. 167-3 at 10, 24–25.) If Defendants were concerned that either Carolina or
Alexander had abused C.H. and would abuse C.H. again imminently, it stands to reason
that Defendants would have removed C.H. immediately. See White, 797 F.2d at 815–16.
that despite their objections to Dr. Vega’s consultation note, the Hipschmans still insist that Defendants
should have consulted Dr. Vega to obtain her opinion. (See, e.g., Doc. No. 167-1 at 23 (“Indeed, Dr. Vega
– the consult note author – should have been one of the first people Romero contacted”).)
Moreover, the evidence indicates that an attending physician approved the consultation note with
the added clarification that “[i]n young infants who require constant supervision, the lack of an explanatory
trauma history is worrisome at the very least for neglectful supervision.” (Doc. No. 190 at 265.) To the
extent that the attending physician included additional clarifications, no party has provided the Court with
the final consultation note.
Under these circumstances, the Court cannot fault Defendants for considering and relying upon
the information that they were able to gather.
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Given this evidence, no rational jury could conclude that Defendants had reasonable
cause to believe that C.H. faced a risk of serious bodily injury from abuse by the
Hipschmans. See Wallis, 202 F.3d at 1138. Such non-existent risk is, correspondingly, not
imminent.
ii. 	Serious physical injury from neglect
The issue of injury from neglect, however, leads to a different conclusion.
Defendants may have had reasonable cause to believe that C.H. was at serious risk of
suffering serious bodily injury due to neglect in the time it would have taken Defendants
to obtain a warrant.
Both Defendants and medical staff were concerned that C.H.’s injury may have
resulted from the Hipschmans’ neglect. For instance, Dr. Vega explained that medical staff
had a “concern . . . for either physical abuse or neglectful supervision.” (Doc. No. 164-2 at
90.) Defendants similarly noted that C.H.’s injury was “of such nature as would ordinarily
not be sustained except as the result of the unreasonable or neglectful acts or omissions of
the parent[s].” (Doc. No. 189 at 89.) Defendants thus note that they “possessed information
suggesting that C.H. had already been subjected to either abuse or neglect in his home,
which resulted in a skull fracture that no one could explain.” (Doc. No. 164-1 at 18.)
The evidence in Defendants’ possession at the time C.H. was removed is consistent
with C.H.’s injury being sustained because of neglectful supervision. Dr. Vega indicated
that “[i]n a young infant who requires constant supervision, the event leading to this severe
injury would have been readily apparent to any prudent caregiver.” (Doc. No. 189 at 187.)
Yet when Defendants asked the Hipschmans how C.H. might have sustained his injury,
Carolina and Alexander indicated that they were not certain how the injury occurred. (See
Doc Nos. 163-2 at 22; 189 at 10; see also Doc. No. 189 at 58–59.) The Hipschmans’
identification of several instances where C.H. hit his head did not preclude a possibility of
neglect.
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Additionally, 	Defendants 	could 	have 	reasonably 	considered 	C.H.’s 	injury 	to
constitute “serious bodily harm.” Again, Dr. Vega indicated that “C.H.” had suffered a
“severe injury.” (Doc. No. 189 at 187.) 10
It was also reasonable for Defendants to believe that a recurring injury would be
imminent upon C.H.’s discharge from the hospital. As an initial matter, Defendants’
decision to leave C.H. with the Hipschmans in a hospital setting does not preclude a finding
of exigency. The Ninth Circuit stated in Rogers that “an official’s prior willingness to leave
the children in their home militates against a finding of exigency.” 487 F.3d at 1295 (citing
Mabe, 237 F.3d at 1108) (emphasis added). Here, Defendants left C.H. with the
Hipschmans in a hospital, not their home—i.e., “the environment in which his injuries
[were sustained].” (Doc. No. 189 at 187; see also Doc. No. 163-2 at 84–85 (explaining
typographical error).) This distinction is crucial because social workers may consider a
hospital setting “where nurses [are] supervising all of [a child’s] medical needs” a “safe
environment.” Kirkpatrick, 843 F.3d at 791–92. That does not mean, however, that C.H.
would not face an imminent threat once he was discharged. See id. at 797–98 (Christen, J.,
concurring); 801 (Kozinski, J., dissenting).
Any potential recurring injury also could have occurred in the time it would have
taken Defendants to obtain a warrant. Dr. Vega explained that “[i]f [C.H.] were to be
returned to the environment in which his injuries [were sustained], it would place him at
high risk of further maltreatment.” (Doc. No. 189 at 187; see also Doc. No. 163-2 at 84–
85.) Here, the evidence shows that C.H. was cleared for discharge from the hospital around
noon on Saturday, June 27. (See Doc. No. 189 at 61.) However, Defendants could not
obtain a warrant for C.H.’s removal until Monday, June 29, 2020, at the earliest. (See Doc.
No. 191 at 61.) 11 Under these circumstances, it is plausible that C.H. could have suffered
10 	This categorization is supported by Dr. Plonsker’s subsequent acknowledgement that one “could
also argue that any bleeding in the brain or on the brain is a serious injury.” (Doc. No. 190 at 157.)
11 	The Hipschmans assert that “County social workers can obtain court orders after hours and on
weekends.” (Doc. No. 175 at 16–17 (citing Doc. No. 175-2 at 10–11).) However, the cited document does
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an additional severe injury in the approximately day and a half between C.H.’s discharge
and when Defendants would have obtained a warrant for C.H.’s removal.
In light of the foregoing, a rational jury could conclude that Defendants had
reasonable cause to believe that C.H. faced a risk of serious bodily injury from neglect by
the Hipschmans, and that such risk was imminent. See Wallis, 202 F.3d at 1138.
b. 	Defendants may have pursued all reasonable avenues of
investigation.
In seeking summary judgment, the Hipschmans assert that “Defendants failed to
pursue reasonable avenues of investigation” because they removed C.H. “before the
investigation was completed.” (Doc. No. 167-1 at 21.) In particular, the Hipschmans insist
that Romero should have interviewed Dr. Plonsker, Dr. Vega, Dr. Nienow, Frank, Emma,
or M.H. before removing C.H. (Id.)
Defendants respond that no precedent explains what constitutes a reasonable
investigation, and so Defendants did not violate any “clearly established” law regarding
investigations. (Doc. No. 172 at 16–17.)
Both parties are incorrect. Preliminarily, the Hipschmans do not point to any caselaw
requiring officials to “complete” an investigation before removing a child. (See generally
Doc. Nos. 167-1 at 21–24; 175 at 19–20.) Instead, Ninth Circuit precedent requires officials
to first pursue “reasonable avenues of investigation.” Wallis, 202 F.3d at 1138. “Whether
a reasonable avenue of investigation exists, however, depends in part upon the time element
and the nature of the allegations.” Id.
The Hipschmans make no effort to show that any additional “reasonable avenue[s]
of investigation exist[ed]” for Romero. (See Doc. Nos. 167-1 at 21–24; 175 at 19–20.)
not address warrants for removal. (See Doc. No. 175-2 at 8 (“Medical Treatment/Medical Releases”), 11
(discussing “Order on Petition for Medical, Dental, Mental Health and/or other Remedial Care”).)
Additionally, the Hipschmans’ reliance on the juvenile court’s 2025 rules (Doc. No. 175 at 17 (quoting
Doc. No. 175-2 at 26)), is misplaced given that the quoted language appears be from a 2022 revision, i.e.,
after the underlying events occurred. (Doc. No. 175-2 at 26.)
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Instead, the Hipschmans assume that such avenues existed and baldly assert that Romero
“refus[ed]” to contact Dr. Plonsker, Dr. Nienow, Dr. Vega, and M.H. (Id. at 22–24.)
The record casts doubt on the Hipschmans’ assumption. Romero had less than a day
to conduct an investigation before Defendants had to decide whether to remove C.H. The
matter was referred to Defendants shortly before 5:00 p.m. on Friday, June 26. (Doc. No.
189 at 2.) C.H. would have been discharged around noon the following day. (Id. at 61.)
The evidence indicates that Dr. Nienow and Dr. Vega were not available to talk with
Romero, though it is not clear why. (See Doc. No. 190 at 179–81.) Thus, interviews with
Dr. Nienow and Dr. Vega may not have constituted “reasonable avenue[s] of investigation”
before C.H. was discharged. See Wallis, 202 F.3d at 1138.12
In the meantime, Romero stayed at the hospital investigating the matter past 9:00
p.m. on June 26 and resumed working on the matter by 9:00 a.m. on June 27. (See Doc.
No. 189 at 9, 13.) Before Defendants placed the hospital hold on C.H., Romero interviewed
or spoke with at least Carolina, Alexander, Dr. Suresh, Officer Anderson, Agent Fisher,
Detective Murgia, and Detective Salazar. (Id. at 5–15.) Romero also reviewed Dr. Vega’s
consultation note and attempted to talk with the reporting party and the hospital social
worker. (Doc. Nos. 163-2 at 53–56; 189 at 6, 8.)
Given this evidence, a rational jury may conclude that Romero pursued all
“reasonable avenue[s] of investigation” during the roughly 19 hours Romero had to
investigate.
12 	The evidence indicates that at least one of the hospital staff members who initially worked on the
matter had already left for the day when Romero began her investigation. (Doc. No. 189 at 8.) Taking into
consideration that Romero started her investigation on a Friday afternoon, it is plausible that Dr. Plonsker,
Dr. Nienow, and Dr. Vega had also left for the weekend by the time Romero began investigating and that
Romero consequently was not able to interview any of the doctors.
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c. 	It is not clear whether the removal of C.H. exceeded the scope
of action needed to protect C.H.
The Hipschmans next claim that Defendants “failed to consider lesser intrusive
alternative means” and, in particular, “did not even attempt to explore a safety plan that
would obviate the need to seize C.H.” (Doc. No. 167-1 at 25.) In making this claim, the
Hipschmans contend that Defendants should have “explore[d] a safety plan where the
parents and child together leave the home – where the injury occurred – as opposed to
seizing the child.” (Id.)
Insofar as Defendants lacked specific, articulable evidence that C.H. sustained his
injury 	through 	intentional 	abuse, 	the 	Court 	agrees 	that 	removing 	C.H. 	from 	the
Hipschmans’ custody exceeded the scope of action needed to protect C.H. from intentional
abuse. (See supra at 40–43.)
Nevertheless, neither the Hipschmans nor Defendants address the question of what
level of intrusion is reasonable for averting an imminent serious injury that is due to
neglect. (See generally Doc. Nos. 164; 167-1; 172; 175; 186.)
It is consequently not clear whether Defendants could have pursued a less intrusive
remedy to protect C.H.
d. 	The Ninth Circuit has not explained when the warrantless
removal 	of 	an 	infant 	to 	prevent 	neglect 	violates 	the
Constitution.
It is “well-settled that a child could not be removed without prior judicial
authorization absent evidence that the child was in imminent danger of serious bodily
injury.” Kirkpatrick, 843 F.3d at 792. However, the Ninth Circuit has indicated that this
rule is articulated “at a high level of generality” and does not clearly define what factors
would “support a finding of exigency.” Id. (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 742
(2011)). In fact, the Ninth Circuit acknowledges that none of its cases “explain when
removing an infant from a parent’s custody at a hospital to prevent neglect, without a
warrant, cross the line of reasonableness and violates the [Constitution].” Id.
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In asserting that Defendants are not entitled to qualified immunity on Claim 1, the
Hipschmans do not point to any more recent precedent that provides any such explanation.
(See Doc. Nos. 167-1 at 29; 175 at 35–38.) The Hipschmans instead point to Reynolds v.
County of San Diego, 224 F. Supp. 3d 1034 (S.D. Cal. 2016), and Swartwood v. County of
San Diego, 84 F. Supp. 3d 1093 (S.D. Cal. 2014), to assert that the law regarding exigent
removals has been clearly established. (Doc. No. 175 at 38.) The Hipschmans’ reliance on
these cases is misplaced. Notably, the Ninth Circuit decided Kirkpatrick on December 9,
2016. 843 F.3d 784. Reynolds and Swartwood both pre-date Kirkpatrick, and were
published on October 3, 2016, and September 30, 2014, respectively. 224 F. Supp. 3d 1034;
84 F. Supp. 3d 1093. Under these circumstances, the Hipschmans do not demonstrate that
the law regarding when government officials may effectuate a warrantless removal of an
infant to prevent neglect has become “clearly established” since Kirkpatrick.
Moreover, Swartwood is distinguishable and Reynolds militates in favor of a finding
of qualified immunity. In assessing whether the Swartwood defendants were entitled to
qualified immunity, the court largely relied on the proscription that “a parent . . . could not
be summarily deprived of that custody without notice and a hearing, except when the
children were in imminent danger.” 84 F. Supp. 3d 1093, 1111 (quoting Ram, 118 F.3d at
1310). This is precisely the “high level of generality” that the Ninth Circuit cautioned
against in Kirkpatrick. 843 F.3d at 792 (quoting al-Kidd, 563 U.S. at 742). Furthermore,
the Swartwood court determined that no exigency existed because there was no evidence
that the children “were in imminent danger of serious bodily injury from” the parents. 84
F. Supp. 3d at 1107. Here, however, Defendants may have had reasonable cause to believe
that C.H. was in imminent danger of serious bodily injury from the Hipschmans. (Supra at
43–45.) Thus, this case is more like Kirkpatrick, where “it was not beyond debate that the
confluence of factors [at issue] would not support a finding of exigency.” 843 F.3d at 793.
Meanwhile, the Reynolds court found that the defendants in that case were entitled
to qualified immunity. 224 F. Supp. 3d at 1052. There, the defendants asserted that the
removal of six-week-old R.R. was justified because R.R. had an unexplained fractured
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femur and R.R.’s parents “could not be ruled out as the suspected abuser because either
parent could have caused R.R.’s injury, or at the very least, [may have been] shielding the
true abuser from responsibility.” Id. at 1051. Thus, the court determined that the defendants
could have reasonably believed exigent circumstances justified the removal and were
accordingly entitled to qualified immunity. Id. at 1052. These facts align with the facts
before Defendants at the time C.H. was removed. (Supra at 5–16.)
Furthermore, the Court has not been able to find any precedent that “explain[s] when
removing an infant from a parent’s custody at a hospital to prevent neglect, without a
warrant, cross the line of reasonableness and violates the [Constitution].” Kirkpatrick, 843
F.3d at 793. Rogers and Kirkpatrick do not provide clear guidance. In Rogers, the Ninth
Circuit affirmed that bottle rot, malnourishment, and disorderly conditions in a home did
not present a serious risk of bodily harm to a three-year-old and a five-year-old child. 487
F.3d at 1291, 1295. The Rogers court added that the “very low” chances of an “accidental
injury or of a fire breaking out” “during the few hours that it would take . . . to obtain a
warrant” did not “establish reasonable cause to believe that . . . children were in immediate
danger.” Id. at 1295. In contrast, Kirkpatrick recognized that the fact that a newborn infant
“could die if she goes home with a mother who’s high on drugs and forgets to feed her”
could be sufficient for a jury to conclude that there was an imminent danger of serious
bodily injury. 843 F.3d at 791–92.
The facts of this case fall somewhere within the spectrum produced by Rogers and
Kirkpatrick. On the one hand, the chances of C.H. suffering an accidental injury in the day
and a half between C.H.’s discharge and when Defendants could obtain a warrant were
likely “very low,” as was the case in Rogers. 487 F.3d at 1295. On the other, Dr. Vega
indicated that C.H. faced a threat of a “severe injury”—as opposed to any mere accidental
injury—and C.H. was seven months old, much younger than the children in Rogers. (Doc.
No. 189 at 187.) This brings the facts of this case closer to Kirkpatrick. See 843 F.3d at
791–92.
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Without further clarifying precedent, the Court must conclude that “[n]o matter how
carefully a reasonable social worker had read [the Ninth Circuit’s] case law, she could not
have known that seizing [C.H.] would violate federal constitutional law. Without that fair
notice, the social workers in this case are entitled to qualified immunity.” Id. at 793.
* 	* 	*
In light of the foregoing, the Hipschmans are not entitled to summary judgment on
Claim 1 because exigent circumstances may have justified Defendants’ removal of C.H.
from the Hipschmans’ custody. However, Defendants are protected by qualified immunity
against Claim 1 and, in turn, are entitled to summary judgment as a matter of law.
2. 	Claim 2 – Deprivation of notice, consent, presence
The right to family association “includes the right of parents to make important
medical decisions for their children” as well as the right “to be with their children while
they are receiving medical attention (or to be in a . . . nearby area if there is a valid reason
for excluding them . . . ).” Wallis, 202 F.3d at 1141–42. To protect these rights, “the County
is required to: (1) notify the parents of a medical examination of their children; (2) obtain
parental consent or a court order in advance of the medical examination; and (3) permit the
parent to be present at the examination.” Benavidez v. County of San Diego, 993 F.3d 1134,
1150 (9th Cir. 2021) (citing Mann v. County of San Diego, 907 F.3d 1154, 1162 (9th Cir.
2018)).
Claim 2 implicates each of these three requirements for three events identified by
the Hipschmans: (1) Samuels’ examination of scratches near C.H.’s groin; (2) the skeletal
survey; and (3) the general examination. (See Doc. No. 72 ¶ 212.)
a. 	Samuels’ examination of scratches near C.H.’s groin
The Court denies summary judgment to the Hipschmans and to Defendants on Claim
2 as it pertains to Samuels’ examination of scratches near C.H.’s groin because no party
has presented a cogent or timely argument on the issue. Courts “review only issues which
are argued specifically and distinctly in a party’s . . . brief[s]. We will not manufacture
arguments . . . and a bare assertion does not preserve a claim, particularly when, as here, a
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host of other issues are presented for review.” Brownfield v. City of Yakima, 612 F.3d 1140,
1149 n.4 (9th Cir. 2010) (quoting Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994)).
Parties’ failure to brief an issue means that the issue “is too undeveloped to be capable of
assessment.” Hibbs v. Dep’t of Human Res., 273 F.3d 844, 873 n.34 (9th Cir. 2001), 538
U.S. 721 (2003). “Arguments raised for the first time in a reply brief are waived.” Autotel
v. Nevada Bell Tel. Co., 697 F.3d 846, 852 n.3 (9th Cir. 2012) (quoting Turtle Island
Restoration Network v. U.S. Dep’t of Commerce, 672 F.3d 1160, 1166 n.8 (9th Cir. 2012)).
Here, neither the Hipschmans nor Defendants mention the scratches or Samuels’
examination of the scratches in their initial arguments on Claim 2. (See Doc. Nos. 164-1 at
21–23; 167-1 at 26–29.) In fact, the only time Samuels’ examination of the scratches is
addressed is in two passing sentences in the Hipschmans’ reply brief. (Doc. No. 175 at 30.)
The parties have nevertheless presented numerous other related issues for the Court’s
consideration. 	(See, 	e.g., 	Doc. 	Nos. 	164-1 	at 	21–23; 	167-1 	at 	26–29.) 	Given 	the
circumstances, 	the 	Court 	cannot 	assess 	such 	undeveloped—really 	nonexistent—
arguments. Hibbs, 273 F.3d at 873. The Court also will not address the Hipschmans’
waived and underdeveloped reply brief argument. Autotel, 697 F.3d at 852 n.3.
b. 	Skeletal survey
Turning to the skeletal survey, Defendants provided adequate notice of the medical
examination to the Hipschmans, but deprived the Hipschmans of their right to consent to
the examination. There is no dispute that Carolina attended the skeletal survey, so there
was no violation of Carolina’s right to be present. (Doc. Nos. 163-2 at 43; 190 at 462.)
i. 	Right to Notice
Beginning with whether Defendants provided adequate notice, the Hipschmans
claim that “[t]o satisfy the ‘notice’ requirement, there must also be ‘an opportunity to be
heard.’” (Doc. No. 167-1 at 26 (citing Wallis, 202 F.3d at 1141; Mann, 907 F.3d at 1161).)
With this framing, the Hipschmans assert that Defendants violated their right to notice. The
Hipschmans are incorrect.
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Preliminarily, the Hipschmans conflate their right to notice with the procedures for
obtaining a court order. Wallis explained that,
in the absence of parental consent, [physical examinations] of [a] child may
not be undertaken for investigative purposes at the behest of state officials
unless a judicial officer has determined, upon notice to the parents, and an
opportunity to be heard, that grounds for such an examination exist and that
the administration of the procedure is reasonable under all circumstances.
202 F.3d at 1141 (emphasis added) (quoting van Emrik v. Chemung Cnty. Dep’t of Soc.
Servs., 911 F.2d 863, 867 (2d Cir. 1990)). The prefatory framing clarifies that the
discussion regarding “an opportunity to be heard” applies to court order proceedings, not
the initial notice. This is also confirmed by the placement of “upon notice to the parents,
and an opportunity to be heard” within the parameters of what must be done before the
judicial officer makes a determination.
With that clarification, the Court considers simply whether Samuels informed the
Hipschmans of the skeletal survey to determine whether Samuels complied with the
Hipschmans’ right to notice.
The evidence shows that she did. In a July 7, 2020 email, Alexander wrote to
Samuels, “[f]urthermore [social worker] Samuels barely confirmed that [C.H.] has a follow
up appt on 7/9 at 10 and 11:30 on Thursday, July 2 at 5:50PM.” (Doc. No. 189 at 38.) In
other words, on July 2, Samuels notified the Hipschmans of two July 9 examinations. (See
id.) The Hipschmans quibble that “Samuels did not provide sufficient notice – to allow an
opportunity to be heard.” (Doc. No. 167-1 at 27 (emphasis added).) But this contention
concedes that Samuels provided some notice to assert that she should have provided more.
Even then, the Hipschmans indicate that they did receive more, e.g., “an opportunity to be
heard,” because “Carolina repeatedly and strenuously objected to . . . [s]keletal [s]urvey.”
(Id.)
The Hipschmans next argue that it was the foster caretaker who “told Carolina that
C.H. had an examination and X-Ray appointment at Rady’s hospital” and that “Samuels
did not tell Alexander or Carolina about C.H.’s medical examinations.” (Doc. Nos. 167-1
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at 27 (citing Doc. No. 190 at 459, 461–62, 484–86, 488); 175 at 28 (same).) However, the
cited evidence does not show that Samuels did not inform Alexander or Carolina about the
medical examinations. (See Doc. No. 190 at 459, 461–62, 484–86, 488.) In fact, it shows
the opposite—it was Samuels, not the foster caretaker, who told Carolina that the skeletal
survey was ordered. (Id. at 461–62 (“He has to go to radiology department for a full-body
scan, and he has to have a follow-up visit at the Chadwick Center with a specialist.”).)
Given the Hipschmans’ tacit concession and the corroborating evidence that
Samuels provided some notice, the apparent implication of the Hipschmans’ argument is
that a social worker must be the first party to notify parents of upcoming examinations to
satisfy the notice requirement. This implication is untenable in modern society, where
automated systems can send appointment confirmation emails the moment an appointment
is created and before a social worker has an opportunity to contact parents. It also
disregards the reality that individuals can receive notice by multiple means, as the
Hipschmans did here.
ii. 	Right to Consent
On the issue of consent, the undisputed evidence shows that Defendants lacked
parental consent for the skeletal survey. Defendants point to the signed consent form as
evidence that the Hipschmans consented to all medical procedures for C.H. while C.H. was
in Defendants’ custody. (Doc. No. 164-1 at 22.) However, Defendants concede that parents
can revoke their consent after signing the consent form. (Doc. No. 191 at 150.) The
evidence shows that Carolina withdrew her consent by objecting to the skeletal survey to
Samuels. (Doc. No. 190 at 462.) Defendants do not point to any evidence to the contrary.
Under these circumstances, no reasonable social worker could have believed that they had
parental consent to move forward with the skeletal survey at that time.
* 	* 	*
In sum, Defendants are entitled to summary judgment on Claim 2 as it pertains the
right to notice for the skeletal survey, while the Hipschmans are entitled to summary
judgment on Claim 2 as it pertains to the right to consent to the skeletal survey.
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c. 	General examination
On the general examination, Defendants also provided adequate notice of the
medical examination to the Hipschmans. Issues remain, however, regarding whether
Defendants were entitled to rely on the consent form and why Carolina may have been
excluded from the examination.
i. 	Right to Notice
The 	evidence 	shows 	that 	Samuels 	notified 	the 	Hipschmans 	of 	the 	general
examination when she notified them of the skeletal survey. (Doc. Nos. 189 at 38; 190 at
461–62.) This notice was sufficient for the reasons provided above. (Supra at 51–53.)
ii. 	Right to Consent
In contrast to the skeletal survey, whether Defendants violated the Hipschmans’ right
to consent to the general examination presents a much fuzzier image. As with the skeletal
survey, Defendants first point to the signed consent form to show that Defendants were
entitled to subject C.H. to a general examination. (Doc. No. 164-1 at 22.)
Unlike with the skeletal survey, there is no evidence in the record that Carolina
withdrew her consent for the general examination. The Hipschmans assert that Carolina
“repeatedly and strenuously objected to the examination and Skeletal Survey.” (Doc. No.
167-1 at 27 (citing Doc. No. 190 at 462–63).) But the cited evidence does not address the
general examination. The relevant line of questioning proceeded as follows:
Q. Did you voice any objection to anyone about him having to undergo that
scan?
A. Yes.
Q. Who did you tell?
A. Elizabeth, several times.
Q. That was in a phone call?
A. In a phone call, in person, even that day.
Q. Did you object to anybody else other than Elizabeth?
A. No.
(Doc. No. 190 at 462–63.) Although the next line of questioning related to the general
examination, it addressed whether Carolina was allowed to attend the general examination:
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Q. Okay. Were you present for that exam?
A. No. Elizabeth told me I couldn’t be present for that exam.
(Id. at 463.) Under these circumstances, any apparent authorization from the consent form
was still in place for the general examination.
Thus, the Court turns to the issue of what, if anything, Carolina authorized by signing
the consent form. The Hipschmans rely on Pope v. County of San Diego, 719 F. Supp. 3d
1076 (S.D. Cal. 2024), to assert that the consent form did not constitute a valid waiver of
the Hipschmans’ right to consent to medical examinations. (Doc. No. 167-1 at 28.)
The Court agrees with Pope that the consent form did not waive the Hipschmans’
right to consent to the general examination. Nevertheless, Pope is not dispositive.
To waive a constitutional right, there must be an “intentional relinquishment or
abandonment of a known right or privilege” that is “voluntary, knowing, and intelligent.”
Barker v. Wingo, 407 U.S. 514, 525 (1972) (quoting Johnson v. Zerbst, 304 U.S. 458, 464
(1938)); Gete v. INS, 121 F.3d 1285, 1293 (9th Cir. 1997) (quoting Davis v. Grossmont
Union High Sch. Dist., 930 F.2d 1390, 1394 (9th Cir. 1991)). For a waiver to be “knowing,”
an individual must be informed of the entitled privileges and understand the consequences
of forfeiture. See Pope, 719 F. Supp. 3d at 1091–92 (citing cases).
Here, as Judge Ohta explained, the consent form13 does not
inform parents that they have the fundamental right to give or withhold
consent for their child[]’s non-emergency care while their child[] [is] in
temporary protective custody. Nor [does] it inform parents that they have the
right to give or decline consent based on the specific treatment suggested for
their child rather than merely providing wholesale consent for all medical
treatment.
13 	The consent form at issue here is not identical to the consent form at issue in Pope. Rather, it
appears that the form in Pope was a February 2015 version of the County’s “CONSENT FOR
EXAMINATION AND TREATMENT” form and that the form at issue here is a June 2020 version of the
form. (Compare Doc. No. 190 at 520, with Doc. No. 189 at 64.) Nevertheless, the forms are not materially
different. The only apparent differences between the forms are that the June 2020 form adds a “Covid-19
(Novel Coronavirus) testing” bullet to the second paragraph and notes that intake medical examinations
“will occur within 7 calendar days of intake.” (Compare Doc. No. 190 at 520, with Doc. No. 189 at 64.)
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Pope, 719 F. Supp. 3d at 1093–94 (citing Crespin v. Ryan, 46 F.4th 803, 809 (9th Cir.
2022)). Thus, “[w]ithout explicitly advising parents of their constitutional right to consent
to any medical treatment offered to their child and that signing the Consent Form would
surrender that right, the Consent Form alone did not constitute a valid waiver of this liberty
interest.” Id. at 1094.
Defendants notably make no effort to defend the validity of any waiver of the right
to consent to medical examinations effectuated through the consent form. (See generally
Doc. Nos. 164-1 at 21–23; 172 at 18–19; 186 at 4–5.) Instead, Defendants argue that “no
‘clearly established’ law dictated that Samuels’ conduct violated [the Hipschmans’]
constitutional right to familial association.” (Doc. No. 164-1 at 23; see also Doc. Nos. 164-
1 at 21–23; 172 at 18–19; 186 at 4–5.)
Defendants raise a valid point. Whether Defendants are entitled to qualified
immunity for failing to obtain the Hipschmans’ consent for the general examination “turns
on the ‘objective legal reasonableness of the action, assessed in light of the legal rules that
were clearly established at the time [the action] was taken.’” Pearson v. Callahan, 555 U.S.
223, 244 (2009) (quoting Wilson v. Layne, 526 U.S. 603, 614 (1999)) (emphasis added).
As Defendants repeatedly note, Pope was not decided until 2024. (See Doc. Nos. 163-1 at
29; 164-1 at 23 n.15; 172 at 19; 186 at 5.) This Court consequently cannot rely on Pope, a
“post-incident decision[], to determine whether the law was then clearly established.”
Baker v. Racansky, 887 F.2d 183, 187 (9th Cir. 1989). And the Hipschmans do not point
to, nor can this Court identify, any pre-July 9, 2020 decisions explaining that Defendants’
consent form did not constitute a valid waiver of consent for all medical examinations
while a child is in Defendants’ custody. (See generally Doc. Nos. 167-1 at 26–29; 175 at
28–30.)
The Hipschmans next contend that Carolina was coerced into signing the consent
form as a way to invalidate any presumed consent. (Doc. No. 167-1 at 28.) Defendants
respond that “such a theory is inapposite to Samuels’ liability because [the Hipschmans]
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neither allege in the [Second Amended Complaint] nor produce evidence now showing that
Samuels had an [sic] knowledge of said concern.” (Doc. No. 172 at 18 n.7.)
Defendants are partially correct. Officers will not be stripped of qualified immunity
for relying on a warrant where the reliance is objectively reasonable. Marks v. Clarke, 102
F.3d 1012, 1028 (9th Cir. 1996) (citing United States v. Leon, 468 U.S. 897, 920–21
(1984)). However, the government “bears the burden of proving that its agents’ reliance
upon the warrant was objectively reasonable.” United States v. Michaelian, 803 F.2d 1042,
1048 (1986) (citing United States v. Hendricks, 743 F.2d 653, 656 (9th Cir. 1984)).
Applying this framework, it is Defendants’ burden to prove that Samuels’ reliance
on the consent form was objectively reasonable, not the Hipschmans’ burden to prove the
opposite. See id. Defendants have not set forth any evidence to carry this burden. (See
generally Doc. Nos. 163-1; 164-1; 172; 186.) Absent such evidence, it is not clear that
Samuels’ reliance on the consent form was objectively reasonable such that she is entitled
to qualified immunity. See Michaelian, 803 F.2d at 1048. In turn, Defendants are not
entitled to summary judgment on Claim 2 as it pertains to the Hipschmans’ right to consent
to the general examination.
iii. 	Right to be Present
Turning to the Hipschmans’ right to be present for the general examination,
Defendants assert that they are entitled to qualified immunity because they received a
juvenile court order that “vested [Defendants] with the discretion to allow Plaintiffs’
presence.” (Doc. No. 164-1 at 22.) Defendants add that “the evidence shows that . . . either
one or both [of the Hipschmans] were present at each of the contested examinations.” (Id.)
Defendants further state that “[a]lthough Mrs. Hipschman was not permitted to physically
enter the examination room during one of the appointments at Rady on July 9th, that was
a result of Rady’s hospital policy, not of any decision or action by Samuels.” (Id.)
Defendants are not entitled to qualified immunity based on the juvenile court order.
Defendants point to a single sentence from the juvenile court’s July 1, 2020 minute order
to support the defense that Samuels had court authorization to exclude the Hipschmans
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from 	the 	general 	examination. 	(Id.)14 In 	that 	sentence, 	the 	juvenile 	“COURT
AUTHORIZES PARENTS TO BE PRESENT AT MEDICAL APPOINTMENTS FOR
THE MINOR.” (Doc. No. 189 at 94.) Defendants interpret this sentence to mean that “the
juvenile court vested [Defendants] with the discretion to allow Plaintiffs’ presence— i.e.,
authorized it— but did not mandate it, as Plaintiffs claim.” (Doc. No. 164-1 at 22.)
Defendants’ interpretation defies any logical reading of the juvenile court order. The
identified sentence does not address Defendants at all. (Doc. No. 189 at 94.) A logical leap
is consequently necessary to reason that the sentence implicates Defendants’ authority and
vests Samuels with any sort of discretion over the Hipschmans’ presence at medical
appointments. That leap, however, leads straight into a wall. The juvenile court made clear
that it knew how to vest Samuels with discretion, ordering that “SOCIAL WORKER HAS
DISCRETION TO DETAIN MINOR WITH RELATIVES”; “[t]he social worker is given
discretion to lift supervision of visits, allow overnight visits with parents with notice to
minor’s counsel”; and “[t]he social worker is given discretion to BEGIN A 60-DAY
TRIAL VISIT with parents with CONCURRENCE OF minor’s counsel.” (Id.) Given these
explicit investitures of discretion, Defendants’ reading that the juvenile court order silently
vested 	Samuels 	with 	any 	discretion 	over 	the 	Hipschmans’ 	presence 	at 	medical
examinations is unreasonable and does not entitle Samuels to qualified immunity.
Turning to the evidence, genuine issues of material fact preclude summary judgment
on the presence requirement for the general examination. In particular, the Hipschmans
contend that Carolina was excluded from the examination room because “Elizabeth
[Samuels] told me I couldn’t be present for that exam.” (Doc. No. 175 at 29 (citing Doc.
No. 190 at 463.).) Carolina added that Samuels was present at the hospital on July 9. (Doc.
No. 190 at 463.) Carolina also asked “the front girl [sic] if [Carolina] could go in [the
14 	Defendants cite “DNOL, Ex. ‘CC’ [7/1/20 Minute Order] at p.2.” (Id.) However, the cited
document appears to be a court-stamped copy of the detention report. (See Doc. No. 189 at 127–52.)
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examination room], and she said that that’s not a problem.” (Doc. No. 175 at 29–30 (citing
Doc. No. 190 at 462, 464).)
Nevertheless, at the time of general examination, Alexander conceded that hospital
policy may have caused Carolina’s exclusion. (Doc. No. 189 at 44.)
Moreover, Dr. Vega testified that during June and July of 2020, Rady “require[d] a
lesser number of people be allowed 	in an examination room because of COVID
precautions.” (Doc. No. 163-2 at 92.) Dr. Vega additionally testified that in June 2024,
Rady had a policy that “anyone who is suspected of maltreatment for a particular child
cannot be present at that child’s visit in person.” (Id. at 91.) She did not know if the same
policy was in place at the time of C.H.’s general examination. (Id. at 91–92.)
In turn, a genuine issue of material fact exists regarding why Carolina was excluded
from the July 9, 2020 general examination. 15
In sum, Defendants are not entitled to qualified immunity on the Hipschmans’ right
to be present during the July 9, 2020 general examination. However, a genuine issue of
material fact precludes summary judgment on the issue.
3. 	Claim 3 – Judicial deception
Ninth Circuit “caselaw clearly establishes that, as part of the right to familial
association, parents and children have a ‘right to be free from judicial deception’ in child
custody proceedings and removal orders.” David v. Kaulukukui, 38 F.4th 792, 800 (9th Cir.
2022) (quoting Greene v. Camreta, 588 F.3d 1011, 1034 (9th Cir. 2009)). Judicial
deception 	can 	take 	the 	form 	of 	either 	a 	“deliberate 	omission 	or 	affirmative
misrepresentation.” Id. at 801 n.3. “A statement can also be misleading if, although
15 	There appears to be conflicting evidence on whether Carolina was excluded from the general
examination. In asserting that she was excluded, Carolina testified that Samuels was present at the hospital
on July 9, 2020, when Samuels excluded Carolina from the examination room. (Doc. No. 190 at 463.)
However, Samuels testified that she did not “go to [the general] exam.” (Id. at 486.) Additionally, the
doctors’ notes for C.H.’s general examination indicate that both Thomas and Carolina were present during
the examination. (Doc. No. 189 at 97 (“Support person present during exam: paternal grandfather,
mother”); see also Doc. No. 163-2 at 230.)
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technically true, it has been so wrenched from its context that the judicial officer will not
comprehend how it fits into the larger puzzle.” Scanlon v. County of Los Angeles, 92 F.4th
781, 799 (9th Cir. 2024). Such is the case when an officer has “omitted facts required to
prevent technically true statements in [an] affidavit from being misleading.” Ewing v. City
of Stockton, 588 F.3d 1218, 1224 (9th Cir. 2009).
“To state a violation of the constitutional right to familial association through
judicial deception, a plaintiff must allege ‘(1) a misrepresentation or omission (2) made
deliberately or with a reckless disregard for the truth, that was (3) material to the judicial
decision.’” 	David, 	38 	F.4th 	at 	801 	(quoting 	Benavidez, 	993 	F.3d 	at 	1147). 	“A
misrepresentation or omission is ‘material’ if a court ‘would have declined to issue the
order had [the defendant] been truthful.’” Id. (quoting Greene, 588 F.3d at 1035) (alteration
in original).
For a “judicial deception claim to survive summary judgment, [a plaintiff] ‘must
1) make a substantial showing of [the defendants’] deliberate falsehood or reckless for the
truth and 2) establish that, but for the dishonesty, the challenged action would not have
occurred.’” Chism v. Washington, 661 F.3d 380, 386 (9th Cir. 2011) (quoting Liston v.
County of Riverside, 120 F.3d 965, 973 (9th Cir. 1997)). “If a plaintiff satisfies these
requirements, ‘the matter should go to trial.’” Butler v. Elle, 281 F.3d 1014, 1024 (9th Cir.
2002) (quoting Liston, 120 F.3d at 972–75).
In the second amended complaint, the Hipschmans allege that Romero made a
number of specific false statements in her notes. (See Doc. No. 72 ¶ 114.)
The Hipschmans contend that Samuels engaged in deception when she “attested . . .
that C.H.’s injury ‘is of such a nature as would ordinarily not be sustained except as the
result of the unreasonable or neglectful acts or omission [sic] of the parent,’ and ‘there is
substantial risk that the child will suffer serious physical harm.’” (Doc. No. 175 at 31
(quoting Doc. No. 189 at 89).) The Hipschmans also complain that Defendants “repeatedly
report[ed] that Alexander and Carolina did not have a plausible explanation for C.H.’s
injuries” and exaggerated the severity of C.H.’s injury. (Id. at 32–33.) Finally, the
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Hipschmans insist that Defendants undermined the Hipschmans’ credibility by discrediting
and suppressing exculpatory information. (Id. at 33–34.)
These arguments are meritless. 16
Preliminarily, the Court notes that the evidence regarding the incidents of which
Romero was informed is inconsistent and presents a genuine issue of material fact. For
example, Defendants and the Hipschmans both acknowledge Alexander’s deposition
testimony that Carolina told Romero about the M.H. Mat incident on June 26, 2020. (Doc.
No. 175 at 17 (quoting Doc. No. 163-1 at 10 (citing Doc. No. 163-2 at 120–24)).) However,
Carolina was not in the room at the time of the M.H. Mat incident. (Doc. No. 190 at 307.)
In a July 7 email, the Hipschmans informed Samuels that M.H. explained to Carolina in
June that C.H. rolled off the mat during the M.H. Mat incident, but did not explain that
M.H. bumped C.H.’s head during the incident until July 3. (Doc. No. 189 at 40–41.) In
subsequent deposition testimony, Carolina also expressed uncertainty about whether she
told Romero about the M.H. Mat incident. Specifically, when asked “did you tell any of
those people that [C.H.] had hit his head earlier in the day on June 24th when [M.H.] had
been trying to move him?” Carolina responded, “I believe so, yes” and that “I’m
remembering that I may have brought that up.” (Doc. No. 191 at 20–21.)
M.H. also testified that he told Romero about the M.H. Mat incident while being
interviewed in Alexander’s presence. (Doc. No. 190 at 292, 296–97.) However, Alexander
stated in a July 7 email that he did not know C.H. hit his head during the incident until July
5. (Doc. No. 189 at 30.)
Regardless, the parties affirmatively agree for summary judgment purposes that the
Hipschmans told Romero about the Emma, Carolina Mat, and Crib incidents. (Doc. Nos.
163-1 at 10 & n.4; 164-1 at 6; 175 at 17.)
16 	Because the Court concludes that Defendants did not engage in judicial deception, the Court
declines to address the issue of which specific Individual Defendant(s) may have been responsible for the
alleged deception. (See Doc. Nos. 164-1 at 15; 175 at 34–35.)
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The Hipschmans have failed to demonstrate all three elements required to survive
the summary judgment motion on the judicial deception claim.
First, with the benefit of hindsight and additional medical opinions, the Court agrees
that Defendants’ statements to the effect “that Alexander and Carolina failed to provide a
plausible explanation for C.H.’s injury,” (see, e.g., Doc. No. 175 at 19), were inaccurate.
In particular, the Court recognizes that the Carolina Mat incident constituted a plausible
explanation for C.H.’s injury. (Doc. No. 190 at 166, 187–88, 214–15, 225, 240.) However,
it bears emphasis that Dr. Ayson and Dr. Vega did not reach this conclusion until July 9—
after Samuels prepared and submitted the July 1 detention report. (Doc. No. 189 at 100
(“The parents have provided additional history which includes an event where [C.H.] fell
from sitting position [sic] and hit the left side of his head onto a wooden floor.”).) It appears
that Dr. Vega’s and Dr. Suresh’s opinions that the Emma and Crib incidents were not
plausible explanations for C.H.’s injury remain unchanged. (Doc. Nos. 189 at 13 (Emma),
20 (Crib), 104 (Crib); 190-1 ¶ 6 (Emma).)
Second, however, the Hipschmans have failed to demonstrate that Defendants made
any inaccurate statements deliberately or with a reckless disregard for the truth. At the
outset, the Court notes that Defendants are not medical professionals or experts, and so
Defendants could not determine whether any specific incident provided a plausible
explanation for C.H.’s injury. In turn, Defendants had to rely on any evaluation of the
explanations that they could gather from medical professionals. See Rogers, 487 F.3d at
1295 n.4 (“the doctor’s response is relevant to the question of how serious the children’s
conditions would have appeared to the reasonable social worker.”). Here, Dr. Vega
informed Defendants that the Hipschmans did not provide “a plausible explanation” for
C.H.’s “severe injury.” (Doc. No. 189 at 187.)
And Defendants did not accept Dr. Vega’s statement uncritically. After learning
about the Emma, Carolina Mat, and Crib incidents, Defendants investigated whether any
of the incidents could have provided a plausible explanation for C.H.’s injury. The
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investigation, as it stood on July 1, indicated that the incidents were not plausible
explanations for C.H.’s injury.
On the Emma incident, Romero noted on June 27 that Dr. Suresh “indicated that that
[sic] the child’s injury could not have been generated by the head force of him hitting the
grandmother’s mouth.” (Id. at 13.) 17
On the Carolina Mat incident, Samuels learned from Dr. Vega on June 29 that
“generally a child does not suffer any injury from a short fall of 2-3 feet high. Never the
less [sic], an injury can occur if the child fell from a height of 2-3 feet or greater.” (Doc.
No. 189 at 20.) However, the Hipschmans did not identify any instance where C.H. fell
from a height of “2-3 feet or greater.” The closest event that the Hipschmans relayed was
the Carolina Mat incident, where C.H. fell from a sitting position. (See Doc. No. 190 at
405.) Thus, Defendants could have reasonably rejected the Carolina Mat incident as
constituting a “short fall.” Moreover, the evidence before Defendants indicated that the
Carolina Mat incident did not qualify as a short fall. Around July 1, 2020, C.H. was 2’2.97”
tall. (Doc. No. 189 at 99.) A fall from a sitting position would therefore likely have meant
that C.H.’s head was at a height of less than two feet. (See id.) Defendants accordingly
could have reasonably rejected the Carolina Mat incident as a plausible explanation for
C.H.’s injury before receiving any contrary information from Dr. Ayson and Dr. Vega. 18
Regarding the Crib incident, on June 29, “Dr. Vega also denied that the child could
have suffered a skull fracture form [sic] hitting his head on his crib.” (Doc. No. 189 at 20.)
The 	detention 	report 	also 	included 	Alexander’s 	email 	to 	Romero 	about 	Dr.
Plonsker’s comments as well as information about Samuels’ attempt to corroborate Dr.
Plonsker’s purported comments. (Id. at 136, 143.) Contrary to the Hipschmans’ assertion
17 	Dr. Suresh reiterated this conclusion to Samuels on July 11 (id. at 46), and in her May 1, 2024
declaration (Doc. No. 190-1 ¶ 6).
18 	If the Hipschmans had reported the M.H. Mat incident to Romero and/or Samuels by July 1, 2020,
Defendants could have reasonably rejected the M.H. Mat incident as a plausible explanation for the same
reason. In particular, M.H. testified that in that instance, C.H. hit his head from a height that was “[w]ay
less than an inch” off the ground while being scooted. (Doc. No. 190 at 306–09.)
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that “Samuels did not even ask Dr. Vega about Dr. Plonsker’s exculpatory statements”
(Doc. No. 175 at 34 (citing Doc. No. 191 at 91)), the evidence shows Samuels did. (Doc.
No. 189 at 20–21; 136.) Rather, Samuels simply did not “ask Dr. Vega whether or not [Dr.
Plonsker’s purported statements were] true.” (Doc. No. 191 at 91.) 19
The fact that medical professionals subsequently determined that the Carolina Mat
incident 	constituted 	a 	plausible 	explanation 	for 	C.H.’s 	injury 	does 	not 	mean 	that
Defendants made any inaccurate statements deliberately or with a reckless disregard for
the truth when they relied on the medical professionals’ initial statements. Defendants are
social workers, not fortune tellers; the Court cannot require Defendants to predict the
future.
Third, the Court cannot say that Defendants’ statements were material to the juvenile
court’s decision. Defendants presented the Emma and Crib incidents for the juvenile
court’s consideration. Defendants noted the Emma incident on page 4 of the detention
report and Dr. Suresh’s dismissal of the incident as a cause for C.H.’s injury on the
following page. (Doc. No. 189 at 129–30; see also id. at 136–38, 140.) The detention report
addressed the Crib incident on page 4, and Dr. Vega’s dismissal of the incident as a cause
for C.H.’s injury two pages later. (Id. at 129, 131; see also id. at 136.)
Although the detention report does not mention the Carolina Mat incident, it
included Dr. Vega’s explanation that “an injury can occur if the child fell from a height of
2-3 feet or greater.” (Id. at 131; see also id. at 135.) 20
19 	The Hipschmans did not provide the Court with Samuels’ explanation for why she did not ask Dr.
Vega if the purported statements were true. (See id. at 91–92.)
20 	The Hipschmans contend that Defendants should have provided more information and that
Defendants “suppressed” Dr. Vega’s agreement “that a fall from a sitting position was a plausible
explanation for C.H.’s injury.” (Doc. No. 175 at 33 (citing Doc. No. 190 at 214–15).) This contention is
devoid of logic. Dr. Ayson and Dr. Vega did not conclude that C.H.’s injury could have been caused by a
fall from a sitting position until July 9. (Doc. No. 189 at 97–101.) It would have been impossible for
Defendants to “suppress” a July 9 conclusion in a detention report produced eight days before the fact.
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Under these circumstances, Defendants provided all relevant context available at the
time to the juvenile court for its determination. Cf. Scanlon, 92 F.4th at 799. In turn, it is
unlikely that the juvenile court would have reached a different decision even if Defendants
did not indicate that the Hipschmans failed to provide a plausible explanation for C.H.’s
injury. Moreover, even if Defendants had excluded any such statements from themselves,
the juvenile court could still have reached the same result by relying on Dr. Vega’s
consultation note, which explicitly stated that “[i]n the absence of a plausible explanation,
this injury is highly concerning for non-accidental trauma.” (Doc. No. 189 at 147.)
Given that the evidence before the Court does not show that Defendants made any
misrepresentations “deliberately or with a reckless disregard for the truth” or that the
misrepresentations were “material to the [juvenile court’s] decision,” Defendants are
entitled to summary judgment on Claim 3. Chism, 661 F.3d at 386; Scanlon, 92 F.4th at
799.
4. 	Claim 4 – Monell liability
Municipalities may be held liable for constitutional violations caused by “official
municipal policy of some nature.” Monell v. Dep’t of Soc. Servs. of City of New York, 436
U.S. 658, 691 (1978). As relevant here, an official municipal policy may take the form of
“official policies or established customs” as well as “acts of ‘omission,’ when such
omissions amount to . . . official policy.” Clouthier v. County of Contra Costa, 591 F.3d
1232, 1249 (9th Cir. 2010), overruled on other grounds by Castro v. County of Los Angeles,
833 F.3d 1060 (9th Cir. 2016).
Municipal, or Monell, liability claims are “contingent on a violation of constitutional
rights.” Lockett v. County of Los Angeles, 977 F.3d 737, 741 (9th Cir. 2020) (quoting Scott
v. Henrich, 39 F.3d 912, 916 (9th Cir. 1994)). Additionally, where a plaintiff asserts that a
municipality has “fail[ed] to adequately train its employees, the government’s omission
must amount to ‘deliberate indifference’ to a constitutional right.” Clouthier, 591 F.3d at
1249. Such “deliberate indifference” may be established by showing “the need for more or
different training is so obvious, and the inadequacy so likely to result in the violation of
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constitutional rights, that the policymakers of the city can reasonably be said to have been
deliberately indifferent to the need.” City of Canton v. Harris, 489 U.S. 378, 390 (1989).
To establish liability for the County under Monell, the Hipschmans must prove
“(1) that [they] possessed a constitutional right of which [they were] deprived; (2) that the
municipality had a policy; (3) that this policy ‘amount[ed] to deliberate indifference’ to the
[Hipschmans’] constitutional right; and (4) that the policy [was] the moving force behind
the constitutional violation.” Dougherty v. City of Covina, 654 F.3d 892, 900 (9th Cir.
2011) (quoting Plumeau v. Sch. Dist. No. 40 Cnty. of Yamhill, 130 F.3d 432, 438 (9th Cir.
1997)).
The Hipschmans assert that the County is liable under Monell for each of the alleged
violations in Claims 1, 2, and 3. (Doc. No. 72 ¶¶ 241–308.) In addition to the three incidents
addressed in Claim 2 above, the Hipschmans assert that the County is liable for an intake
examination of C.H. conducted at Polinsky without notifying the Hipschmans of the intake
exam or allowing the Hipschmans to consent to and be present at the exam. (Doc. No. 175
at 43.) Carolina and Alexander seek summary judgment in their favor in terms of the
County being liable for the alleged violations Claims 1 and 2. (Doc. No. 167 at 2.)
Meanwhile, Defendants seek summary judgment against the Hipschmans in terms of the
County being liable for the alleged violations in Claims 1, 2, and 3. (Doc. No. 163-1 at 22–
31.)
a. 	Count 1 – Unlawful removal
Beginning with Monell liability for Claim 1, neither side is entitled to summary
judgment.
The Hipschmans assert that a County policy must have been the moving force behind
C.H.’s removal because (a) the removal was done “in accordance with the County’s
policies,” (b) Romero was not disciplined for the removal of C.H., and (c) a manager
agreed to the removal of C.H. (Doc. No. 167-1 at 29–30; see also Doc. No. 175 at 40–41.)
Furthermore, the Hipschmans contend that 	the removal “mirrors the constitutional
violation[]” from Swartwood, 84 F. Supp. 3d 1093. (Doc. No. 167-1 at 30; see also id. at
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19–21.) In their reply brief, the Hipschmans add that a County policy precludes social
workers from obtaining removal warrants after hours or on the weekend. (Doc. No. 175 at
41–42.)
In contrast, the County argues that it is entitled to summary judgment because the
Hipschmans cannot show that a county custom or policy was the moving force behind
Defendants’ removal of C.H. (Doc. No. 163-1 at 22–28.)
With regard to the Hipschmans’ motion, as previously discussed, a rational jury may
conclude 	that 	Defendants’ 	warrantless 	removal 	of 	C.H. 	was 	justified 	by 	exigent
circumstances to protect C.H. from serious bodily injury from neglect. (Supra at 43–45.)
In turn, there is a question of fact regarding whether the Hipschmans were deprived of their
right to familial association. Cf. Dougherty, 654 F.3d at 900. The Hipschmans consequently
are not entitled to summary judgment on this basis. Additionally, the Hipschmans waived
any argument pertaining to a county policy against removal warrants by raising the
argument for the first time in reply. Autotel, 697 F.3d at 852 n.3.
As for the County’s motion, the Hipschmans may be able to show that a county
custom or policy was the moving force behind the removal of C.H. A trier of fact can find
that a constitutional violation was caused by a county policy where the underlying action
was taken in accordance with the policy. Chew v. Gates, 27 F.3d 1432, 1444–45 (9th Cir.
1994). Here, the County has admitted that “Romero was acting pursuant to [the County’s]
child removal policies.” (Doc. No. 167-3 at 33.)
b. 	Count 2 – Deprivation of notice, consent, presence
The issue of Monell liability for Claim 2 presents a thornier thicket.
The Hipschmans contend that the County is subject to Monell liability for four
examinations 	involving 	C.H.: 	(1) an 	intake 	examination 	at 	Polinksy; 	(2) Samuels’
examination of scratches near C.H.’s groin; (3) the skeletal survey; and (4) the general
examination. The Hipschmans claim that “Samuels was not disciplined for subjecting C.H.
to a medical examination and a full body Skeletal Survey (X-Ray)” and that the conduct
here mirrors the violation presented in Pope, 719 F. Supp. 3d 1076. (Doc. No. 167-1 at 29–
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30.) In their reply, the Hipschmans add that the County’s consent form “was the moving
force behind Plaintiffs’ constitutional deprivations,” that the County did not discipline its
social workers, and that there is a question of material fact on whether C.H. underwent an
intake examination at Polinsky. (Doc. No. 175 at 42–43.)
The County asserts, on the other hand, that it is entitled to summary judgment
because (a) no intake examination occurred at Polinsky; (b) the County was not on notice
that its consent form was deficient until 2024 and Pope does not establish a pattern of
violations; and (c) no violations occurred during the July 9 examinations because the
Hipschmans were notified of the examinations and allowed in close proximity. (Doc. No.
163-1 at 28–30.)
i. 	Alleged Polinsky intake examination
Beginning with the alleged intake examination at Polinsky, there is a genuine issue
of material fact on whether such an examination even occurred. The Hipschmans rely on
Carolina’s statement that Romero told Carolina “that they had just finished an intake exam
on [C.H.]” as well as Romero’s note that “C.H. was ‘in intake’ at Polinsky” to argue an
intake examination occurred. (Doc. No. 175 at 43 (citing Doc. Nos. 189 at 12; 191 at 12).)
Defendants present evidence that a county employee searched Polinsky’s records and did
not find any files for C.H., “which means that no [Polinsky Children’s Center] medical
examination was conducted.” (Doc. No. 163-5 ¶ 2.) Given this conflicting evidence, the
Court must allow a jury to decide first whether an intake examination occurred. Soremekun,
509 F.3d at 984.
If the examination occurred, however, a trier of fact could conclude that a county
policy was the moving force behind any violations that flowed from the examination.
Indeed, it is difficult to conceive of how a county policy was not the moving force behind
the examination—and any attendant constitutional violations—given that the County
produced and asked parents to sign a consent form to authorize at least such an intake
examination. (See, e.g., Doc. No. 189 at 64.) See also Chew, 27 F.3d at 1444–45.
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Defendants’ insistence that the County was not on notice of any deficiencies in its
consent form does not change the Court’s conclusion. Defendants focus in particular on
whether the Hipschmans’ reliance on Pope is sufficient “to establish a pattern of violations
under Monell.” (Doc. No. 163-1 at 29.) But as the Court just noted, the existence of the
consent form is sufficient to establish that a county policy existed and that the policy was
a moving force behind the examination. It is plausible that Defendants raise their lack of
notice of the form’s deficiencies as a way to show that the County was not deliberately
indifferent to the Hipschmans’ constitutional rights. See Dougherty, 654 F.3d at 900 (“In
order to establish liability for governmental entities under Monell, a plaintiff must prove
. . . that th[e] policy amounts to deliberate indifference to the plaintiff’s constitutional
right”). However, Defendants do not articulate any such defense. (Doc. Nos. 163-1 at 28–
30; 172 at 19–20; 186 at 7–8.) Regardless, as the Hipschmans note, “[w]hether a local
government entity has displayed a policy of deliberate indifference is generally a question
for the jury.” Oviatt by and through Waugh v. Pearce, 954 F.2d 1470, 1478 (9th Cir. 1992).
(Doc. No. 175 at 40.)
ii. 	Samuels’ examination of scratches near C.H.’s groin
Turning next to the examination of the scratches, neither the Hipschmans and nor
Defendants has briefed whether the County should face Monell liability for Samuels’
examination of the scratches near C.H.’s groin. (See Doc. Nos. 163-1 at 28–30; 167-1 at
29–30; 172 at 19–20; 175 at 40–43; 186 at 7–8.) Accordingly, the Court will not assess
such an undeveloped issue, and neither side is entitled to summary judgment. Hibbs, 273
F.3d at 873.
iii. 	Skeletal survey
Moving on to the skeletal survey, as previously discussed, Defendants provided the
Hipschmans with adequate notice of the skeletal survey and Carolina was present for the
examination. (Supra at 51–53.) Accordingly, there was no constitutional violation on
which to base a Monell claim for these rights. Lockett, 977 F.3d at 741. Defendants are thus
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entitled to summary judgment on the issue of Monell liability as it pertains to the
Hipschmans’ rights to notice and to be present for the skeletal survey.
Nevertheless, there remain genuine issues of material fact regarding whether the
County should be subject to Monell liability for a violation of the Hipschmans’ right to
consent to the skeletal survey. As previously noted, Defendants concede that parents can
revoke their consent, which Carolina did with respect to the skeletal survey. (Supra at 53.)
C.H. nevertheless underwent a skeletal survey while in Defendants’ custody. (See Doc. No.
189 at 118.) On the one hand, a jury may conclude that the County’s consent form
constituted a moving force behind C.H. undergoing the skeletal survey without Carolina’s
consent. Such a conclusion would be largely consistent with Defendants’ assertion that the
consent form authorized the skeletal survey. (See Doc. No. 164-1 at 22; see also Chew, 27
F.3d at 1444–45.) On the other, a jury may conclude that the County’s policies were not a
moving force behind the examination insofar as the County allows parents to withdraw
their consent and C.H. underwent the skeletal survey after such a withdrawal had occurred.
(See Doc. No. 191 at 150.) In that scenario, a reasonable trier of fact could find that the
skeletal survey occurred despite County policy allowing parents to withdraw their consent.
Moreover, even if a jury concludes that the County’s consent form was a moving
force behind C.H. undergoing the skeletal survey, a jury may still conclude that the
existence and use of the consent form indicates that the County was not deliberately
indifferent to the Hipschmans’ right to consent to the skeletal survey since the County
attempted to obtain such consent. See Oviatt, 954 F.2d at 1478.
iv. 	General examination
Turning to the general examination, as previously discussed, Defendants provided
the 	Hipschmans 	with 	adequate 	notice 	of 	the 	general 	examination. 	(Supra 	at 	54.)
Accordingly, there was no constitutional violation on which to base a Monell claim for the
right to notice. Lockett, 977 F.3d at 741. Defendants are thus entitled to summary judgment
on the issue of Monell liability as it pertains to the Hipschmans’ right to notice for the
general examination.
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However, genuine issues of material fact preclude summary judgment on Monell
liability as it pertains to the Hipschmans’ rights to consent to and to be present for the
general examination. Like with the skeletal survey, a jury may conclude that the consent
form indicates that the County was not deliberately indifferent to the Hipschmans’ right to
consent to the skeletal survey. Meanwhile, there is still a material dispute over why
Carolina was excluded from the general examination. (Supra at 57–59).21
c. 	Count 3 – Judicial deception
Moving to the issue of Monell liability for Claim 3, the County is entitled to
summary judgment in its favor. Individual Defendants did not engage in judicial deception
because they did not make any misrepresentations “deliberately or with a reckless disregard
for the truth” and any misrepresentations were not “material to the [juvenile court’s]
decision.” (Supra at 59–65.) The County cannot be held liable for a constitutional violation
that never occurred. Lockett, 977 F.3d at 741.
IV. 	CONCLUSION
In light of the foregoing, Court rules on the pending motions and requests as follows.
Defendants’ Daubert Motion to Exclude Expert Testimony of Plaintiffs’ Expert
Melinda Muphy, M.A. (Doc. No. 159) is GRANTED.
Defendants’ Daubert Motion to Exclude Expert Testimony of Plaintiffs’ Expert
Stephen Papaleo, Ph.d. (Doc. No. 160) is GRANTED IN PART and DENIED IN PART.
The Hipschmans must provide Defendants with corrected expert reports that comply
with this Omnibus Order WITHIN 30 DAYS.
Defendants’ requests for judicial notice (Doc. Nos. 163-3; 164-3) are DENIED.
The Hipschmans’ motion for partial summary judgment (Doc. No. 167)
 	On Claim 1 is DENIED;
 	On Claim 2 is
21 The Court notes, again, that there appears to be conflicting evidence on whether Carolina was excluded
from the general examination. (Supra n.15.)
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o 	GRANTED IN PART as it pertains to the Hipschmans’ right to consent
to the skeletal survey, and
o 	DENIED IN PART as it pertains to the Hipschmans’
 	rights to notice of, to consent to, and to be present for Samuels’
examination of scratches near C.H.’s groin;
 	rights to notice of and to be present for the skeletal survey; and
 	rights to notice of, to consent to, and to be present for the general
examination; and
 	On Claim 4 is DENIED as it pertains to the County’s liability for
o 	Count 1: the removal of C.H., and
o 	Count 2: the alleged violations of the Hipschmans’
 	rights to notice of, to consent to, and to be present for the alleged intake
examination at Polinsky;
 	rights to notice of, to consent to, and to be present for Samuels’
examination of scratches near C.H.’s groin;
 	rights to notice of, to consent to, and to be present for the skeletal
survey; and
 	rights to notice of, to consent to, and to be present for the general
examination.
The Individual Defendants’ motion for summary judgment (Doc. No. 164)
 	On Claim 1 is GRANTED;
 	On Claim 2 is
o 	GRANTED IN PART as it pertains to the Hipschmans’
 	rights to notice of and to be present for the skeletal survey; and
 	right to notice of the general examination; and
o 	DENIED IN PART as it pertains to the Hipschmans’
 	rights to notice of, to consent to, and to be present for Samuels’
examination of the scratches near C.H.’s groin;
 	right to consent to the skeletal survey; and
 	rights to consent to and to be present for the general examination; and
 	On Claim 3 is GRANTED.
The County’s motion for summary judgment (Doc. No. 163)
 	On Claim 4 is
o 	GRANTED IN PART as it pertains to the County’s liability for
 	Count 2: the alleged violations of the Hipschmans’
 	rights to notice of and to be present for the skeletal survey; and
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 	right to notice of the general examination; and
 	Count 3: Individual Defendants’ alleged acts of judicial deception; and
o 	DENIED IN PART as it pertains to the County’s liability for
 	Count 1: the removal of C.H., and
 	Count 2: the alleged violations of the Hipschmans’
 	rights to notice of, to consent to, and to be present for the alleged
intake examination at Polinsky;
 	rights to notice of, to consent to, and to be present for Samuels’
examination of scratches near C.H.’s groin;
 	rights to consent to the skeletal survey; and
 	rights to consent to and to be present for the general examination.
IT IS SO ORDERED.
Dated: March 6, 2026
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