good morning i mean please the court paul curley on behalf of the escondido union school district your honor is that we have raised a lot of issues on people in this case but i'd like to focus my time this morning on the two major legal issues  the issues of qualified immunity and the issue of negligence in the case in terms of the qualified immunity issue we had individual defendants one was the principal of the school the other one was the office manager of the school the contention by the plaintiffs is that the violated the dad's parental rights constitutional rights by releasing the child during the school day to the mother who had the custody all right even though she had been deported at the time of the incident what happened was that the mom had several weeks before the incident on december sixth had called the school and look the school know that she had been reporting and asked if it was ok if the child could come over the thanksgiving and christmas break to stay with her the school said that she could do that but there may not be a chance that he could have the same future when he returns to school in the mean time the dad who only had visitation rights under the state court order under the family law court had been taking the child to and from school and had left his phone number with the school and had told the teacher that he would be picking up the child the mom however calls the school on december sixth and says that the child has a doctor's appointments and that the her friend would be picking up the child at school there's no dispute that it was the mother who called the mother gave the name of the person who would be picking up the child that person showed the correct id the principal by the way had no knowledge of that phone call on december sixth and no idea the office manager had that much argument on why there's no clearly established law that was filed late it yes the argument terms of no clearly established law was violated is that although the district recognized that parents have a constitutional right to carry custody of their children in this particular matter the there is no sufficient case law talking about a situation in which your school releases a child on the direction of a parent who calls into the school and says please release my child to this particular bill you don't need to have a case it's you know pinpoint all factors we've said that the cape supreme court said that we've said that i remembered it has to be sort of in the general you know this needs to be in the general case there's no the closest case that i can locate on point is the overseas covington case out of the fifth circuit which is a checkout case involving a man who had no business being on the campus and who had checked out this particular student repeatedly and used her and this case we have quite the opposite we have a mom who has her custodial rights you give me this is what do you understand what was the state of the because a parent is deported at one time that that parent does not lose the state custody rights there has to be some sort of finding by a family law court of abandonment on the on the part of the parent to lose those rights so the dad never went into the state court and said hey mom's been deported i need to have the full frontal custody rights in terms of residence if he still had custody rights he had very limited he had limited no he had right he may not have the kid may not have been living with him but he understood i understood him from the record that he they had joint custody while the state court order your honor he's specifies that the joint legal custody is decisions made as to the education all the education of the citizens care decisions but not visitation visitation was not within that joint legal custody that was something separate in a different paragraph in that state court order that's true but the there's evidence at mcgirr you knew the mother was not in this country so is this child just out there without any supervision doesn't that raise a reasonable it must be the father who has some right who's caring for this child who's present in this country i think that there is some some inference but there's also evidence that the aunt was taking care of the child for quite a quite a while as well you know there is evidence of that is there evidence that the school district knew that about the aunt i don't believe that well that's what's important is what did the school district know says i'm at work i can't pick up my child he has a doctor's appointment the school district has to take the mom's word as true why didn't the father had you as you noted i think and if the record reflects the father had called  and said earlier had called and said i'm going to be responsible for picking up the kid he told the teacher some time that the mom was not around and he would be i thought he also testified that she had seen that she had been deported yes i think the school was aware that the mom had to be in the porter but there at the testimony also of the opposite manager was that regularly parents are deported from this particular school and they come back in fairly quick order so in her mind she could she had a reasonable belief that the mom was in the country was in there also testimony that what happened here and that is except being the word of a person over the phone that i am in fact a mother and i a d this was an unreasonable determination by the school district was no test to know whether there was testimony from the expert if i recall that that's along those lines but ok so there was  can't remember if there was an objection on that point so i'll have to apologize on that that question if you get your point in the qualified immunity if your bottom line argument is you are to kill it in your brief is that the the child that is why why isn't there a duty arising out of the fact that the father in essence had taken steps to notify the school of his home situation that the child is with to contact him before you take any action with regard to the child and that the mother had been removed from the country and so by the school district whether there's a written policy in place or not but by not being  sufficiently sensitive to this home situation that the father took pains to inform the school off that that was enough to go to the jury well this particular issue i know williams has as three reasons why the school district did not know that the duty to the father under the circumstances the first thing is that even though the father knew that some time before when when the boy was a very young child that the mom had taken him to mexico for a period of time he never relayed that information to the school at all so in other words he never came to school and said you know mom's abducted this kid before you guys all need to watch out ok so that's that's number one number two is that there was no foreseeability of the danger that this mom would take this kid and keep him in mexico never a number of foreseeability is a factual determination right that goes to the jury under causation certainly i think foreseeability is something we've cited by the jury but your argument is that look as a matter of law there's not enough facts in this case to demonstrate that he's the drachma time after any purported negligence that's right and so my question to you is why why isn't the fact that the father basically specifically informed that the school to contact him with regard to actions relating to his child was not sufficient to make him a direct like him under california case law well he he he basically said that he needed to be the person he was going to be contacting about this phone number but that didn't relieve the mother of her bundle of rights that she had even though she was deported there's an assumption in the question that once the mom crossed the border into mexico she lost all constitutional rights that she had and i don't think that's the case because that court order still no i don't think that anybody saying  it's just said he alerted the school that he was going to be responsible for picking up the kid and mom called and said that she was at work and i and i believe that the  school district in that situation isn't trying to cover anything up they're not trying to act in lieu of the parent they're trying to regard the parents which is a parent with parental rights and so when mama let me ask you this they had their own little policy honor the regulation talks about and i and i see my time is almost up and i do want to reserve the regulation talks about it's when you can't reach the parent that is when you can only release the kid to someone on the emergency car in this case it's not that the school was looking for the peer in this case the parent the mom called then and said i need you to release my son to his medical me ask you something that i can find the answer in the record could the mom nothing in the record that suggests i think that you could call with that phone call and say this is the guy picking them up he gets to be my proxy he's my agent and so therefore we can put him on the emergency card but typically i think that those cards are filled honor that the person who picked the child up was who he said who the mother said he was going to be and the other person you know was not on the course but that doesn't mean that the person who called i'm going on your position because i want to stay in your position basically your position is all the damages were non economic in the form of emotional distress in that they made different monetary equations that emotional distress on the different coins in it your position that the inconsistency is that they can't be different it's all the same emotional distress and has to be measured to see and therefore you should take the lowest amount if you affirm any of these for x which would be what four hundred fifty thousand dollars isn't that the same hardness negligence so it seems to me that that is why isn't the other position correct and that is on the negligence claim there is a determination  non economic loss and future non economic lost a total of two million dollars and so they may be determination somewhere along the line that the injury had been two million dollars so why shouldn't that questions that you first asked counsel regarding his two largest positions that being qualified immunity and the negligence argument i'd also like to state that i was the trial attorney that was in court for the week and a half trying this  case and i probably have a little better understanding of some of the facts that came into evidence during that trial for all due respect to counsel was a wonderful appellate attorney he wasn't the counsel that was in trial with me as well the evidence that came out in this court room was that the father notified the school that he was now going to be taking permanent custody of the child he notified both how do you know the notifying the notified both the teacher and the teacher acknowledge that notification which was alluded to by counsel he also testified that i notified the front office the very person who took the phone call and said all future call should come to me memoria he was also listed on what's called the cumulative card for the child the cume file and his number was on it the evidence came in that because the mother was being not attentive to the child's needs prior to the the school was repeatedly calling the father and he was the one that they were energetic thing about the child's truancy so by the time she was deported to the school knows he is in full legal custody of the child that she has been ordered into mexico and the custody or just the fact of custody well he had a joint custody order with the mother he showed up for every single custody hearing that was there while the mother did have primary custody he had visitation of the child on the weekends the test of and he was he saw the child repeatedly during the prepared prior to the deportation so there was a joint legal custody on the custody or a reman which also said by the way that no parent shall remove the child from the jurisdiction of san diego county so that it wasn't the parent in this case that's what troubles me about this case and that's a pretty big distinction right from the school district's perspective the mother had rights and the father had rights so either one of them could have gone through the process of placing somebody on the pick up less right so if if let's say a lot of schools have gone online now now you want to make sure that it was the parent who basically authorized somebody to pick up so mom can authorize the pick up independently and so can that and just because that the person then takes off with the child how is the school district responsible for that a few different points here  of the points are well taken conceptually certainly has rights here there's no question that mom has rights we're not saying mom doesn't the cases that we cited that the justice abroad cited in his qualified immunity the james rowland case the burke case all of those cases involve situations where the other parent also had rights but what the district courts were saying in those cases where we're focusing on the right this particular that again that is the focus were this lit cases james was where the social workers and i think the deputy sheriffs transferred the child custody or physically effectuated a transfer of custody and burke was the one where the officers  here in this case the mom allowed a third person to interfere with the dad's rights isn't that a distinction that is significant enough such that there's no clearly established law in place interesting way to phrase the issue it also could be argued as a superseding issue the way that your honor has just kind of phrased it but taking it back to the the issue of no clearly established rock n roll and if you recall what it occurred was it was the very mother who had it requested the transfer to the grandmother i believe and so the the mother's rights were involved in rowland and the court in that case still said no notification to the father then you've abridged his rights by making this transfer the district court also your honor in this case said not only do we have these these two cases to look at but we also have the policy of the school district itself from which we can dr brass and as the district court appointed out in the case of hope veep l z that they can consider administrative rulings and whether or not the defendant knew of those rulings to enforce whether or not this was a clearly established right although on in and of itself it doesn't make it clearly established right but this this a r fifty one forty two has its basis the evidence came in the education code itself so it starts as an education code it becomes an administrative requirement and a r fifty one forty two and then it's adopted by the school district itself as to that ruling and there's been considerable discussion about it not being violated it was clearly violated in this  that that particular policy says no student shall ever leave our school district unless the person picking them up is on the administrative medical emergency part there are no exceptions none whatsoever it came up in court that we didn't violate this and we went to great lengths to put the testimony of the principal gotye and mark why both in our briefing where on cross examination they admitted to the jury and the court that they in fact violated that policy their testimony is we never followed the policy we always just took phone calls and i think just as murphy's point is well taken here if you don't follow the policy then anyone can call up a child is susceptible to kidnapping that's the whole point of this particular policy being in that and it's a different situation than justice when you were saying as well what if she called and said let's put him on the car first or didn't happen in this case had it happened then he would have had to show up at the school presenting the fill out paperwork this is the very most you ended up kidnapping the child and also the father would have been notified that someone else was being added on but there's murders no there's no paperwork requirement that's filled out that's i mean and that you just time you fill out a card saying that i'm authorizing the following individuals to be allowed to pick up my child to policy the school or that person has to come to the school ahead of time has to be physically placed on this card which is it's not a paper application for it they're put into a computer but they still show up and at that point in time the other people on the card are notified but within again we get into the notification of the father's rights and you're saying that the school district policy is that the other parent gets notified if somebody on the list is picking up the child they need i'm saying that the other parent gets notified when someone is added to his child emergency list that they've done which again they didn't do in this case so this is a little bit of an academic point but had they come in and put this person on the car which wasn't done then the father would have been notified that the mother who he knew  been deported was attempting to put a non relative on the card which would have raised red flags this whole case would have been avoided if they just followed the policy which they did the first time when the mother called and said i've been  parent would be notified if the other parent authorizes somebody to pick up the child which i believe that has an impact on the way that the card is filled out when the emergency card has in addition placed on the emergency cart so that the other parents are aware of it when they're they're separated as they're in a situation like this so so let's go back to qualified immunity here i'm so you know the bottom line question for qualified immunity is whether the individual defendants in this particular situation you know in the context in which the case arises would have been aware the law was sufficiently established that they would have been aware that in taking actions that they did would violate mr ramirez's constitutional rights so i believe and so what so you have to look at the law that really existed at that time the only two cases you point to are james and b have that's and then the general law of qualified immunity is that you know you can't define the right to expansive but on the other hand it doesn't need to be there doesn't need to be case l that in doing what they did was a violation of the constitution i think getting back to there was a jovi covington case which didn't exist even at the time it was brought up in a reply brief in this case and it comes from the fifth circuit i don't think that's instructive to what was going on at the time at the time that the child was kidnapped by ramos there was in addition to these two cases out there that placed a school districts on notice that separation of parental rights could lead to a constitutional violation i don't believe the law requires they have specific notice of those cases it's enough that those cases exist and they should have known and what the district  reasonably competent official that he read these cases would have understood the principle is it would have understood that their actions violated the maris's constitutional rights if you if you don't feel that you need to a are fifty one forty two which they know comes from the education code itself saying they will never release a child to someone not on the emergency card which its obvious purpose right is to prevent child abduction there's no two ways about it there's no other purpose for this law that's out there that a reasonable principal who reads burke or reads rowland's and understands that a deprivation of ace a right of a parent would be different here there's no you have these you have these child protective service people taking the kid and moving the kid around and all that kind of stuff and it just doesn't seem to be the fact that he  separation of a child from their parent even at the hands of another parent's conception beginning the process amounts to a constitutional violation if they had no notice and within their their own instructive administrative regulations this is being reinforced on a daily basis and the court said the the clear violation of the whole thing and the jury's finding of the outrageousness of the artemis becomes circular i guess at some point in time but we get back to it's his constitutional right to be with his child so it physically harms him to be separated when his child is being kidnapped it's not just the child but it's also his physical separation a number of the cases that are being cited by the appellant in this case are sexual assault cases but the cases talk about the school kind of knowingly directing their action towards the parents rights act not just that they were negligent in supervising the child why isn't this more of a negligent supervision case to the extent that there is a case vs actions being deliberately direct towards the father so in the case of phyllis d which we cited which is a case that has similar facts to what the court said that the negligence acted in that case were directed at the parent and it went through a three prong test to discuss why they were directed at the parent i can go through them with you but one of them was that the parent had asked to be notified as in this case they also point out in felicity that they had  r notice of the propensity of the rapist to do these things a thirteen year old that was going through this there's a second prong of that as well ultimately between the three things they said in not telling the parent when we had sapir and knowledge of what was happening and going on here and we didn't reach out and provide notice to the parent that we were actively interfering with the rights of the parent and therefore it was directed at the parents as well i think clearly the facts in this  the same thing and the active in a ference with the rights is basically negligently failing to notify him that mom and authorize somebody else to pick up that play if they just would have done what they did three weeks before and said no may i call your your husband but this school doesn't work this out we're not going to hand it child off to someone not on the card who's not a relative thank you very much this whole thing would have been avoided the and this would never ever would have happened had they just called the father and said hey you know the child you just dropped off at eight thirty the mom is here to pick them up for a medical appointment at eight forty five that seems a little odd i never would have happened phyllis p in as an interesting case it was signed back in the eight and since that time the california supreme court has issued a number of we've been used dealing with you know they're going slow on foreseeability and duty everything and it's in steven yeah which is a more recent case the decision so if stephen f is talking about phyllis p and it says first the decision by school officials not to inform the parent of the danger posed by the thirteen year old was clearly a decision directed at the parent  second there is a sense of outrage in this outrageousness in that the decision which also makes it explainable under bros model test ok so in trying to think through how that statement fits here it seemed struck me that if you add in if you add in the jury's findings on punitive damages and it i e intentional infliction of emotional distress which you cross appeal that seems to add the added kicker that stephen f seems to require and i think clearly the jury found that they were so outraged that this simple policy would have prevented the entire kidnapping as to the father that their fingerprint outrageous conduct is all over this jury verdict it's everywhere from the punitive damages findings to the the outrageous findings and i idea as the court pointed out and that makes this very analogous to what happened in the felicity judge  noted that defendants knowledge ramirez was the father remarries request to be contacted on any matter concerning your ek and defendant's failure to contact him in addition to the outrageous findings leads to this distinction that it's being directed at him i also would point out that all of these stephen f cases are all sexual assault cases they're not separation cases and while i'm not diminishing the the out incredible injury that occurs in a sexual assault case in most cases parents were attempting to be vicariously damaged through the damage that happened to their child it's to a certain extent this is a case of the separation a break in the relationship between a parent and a child in this case he hasn't seen his child since and likely never will until the child reaches an age of majority in this case the parent was independently injured by his loss of that relationship as opposed to the stephen f cases in the other sexual assault cases where it was never your infliction of emotional distress and so you have to look at the county california's you know the way california's law has evolved in that particular kind of area and even though these are sexual abuse cases there's some discussion about general principles that seem to apply across the board but that is absolutely true and i do agree with that i think a lot of the issues bleed from one cause of action to the next in this case as well with the directed  for any age of the internet obviously the people being actually present for outrageous conduct is going to change its definition we can't have christians and physically say that you can only make this claim if you are in someone's home so they allow for this exception of there was one injury to mr maritz right and is measured by one measurement of damage rational distress and so trigger versus last year i suppose the easiest analysis is that it's assumes the lower figure so that if the jury felt that it should be too many and here the others are just irrelevant because they're a lesser amount so clearly we're going to take the largest in this case however the jury came out and asked the judge hey we've come to an impasse we have three different figures here do we have to reconcile them all because we don't want you to cumulatively add them up essentially the judge got everybody together and he said i'm not going to cumulatively add these all up on the take the highest is that ok with everybody it's on the record we put it in our brief everyone said sure went back to the jury the jury basically got relieved of having to to reconcile the numbers at that point because the instruction was that that was that was fine we're taking the highest number and then the judge pointed out later on that the jury verdict form is the ultimate verdict is his role to to weave it into the final judgment and that's exactly what he did and subsu decide what was best for their child in stephen f on the other hand the school teacher had an affair with the students and the court said that number one there was no one number one there was no evidence whatsoever that mr ramirez told the school that there was some danger that oh my god if mom calls she's going to dump the kid there's  didn't happen so why would the school be on notice of the worst possible event that this kid is going to be taken my mom and taken in mexico forever and never heard from again that you call and say i'm in charge you know i'm not going to be doing  that ok and the mom of them called and she had again every right to call and say ok this is my right and i want the kid to go to the doctor's appointment i don't keep saying the mom called the they had no verification that was the money or that was there was somebody of the kids teacher and money call him a relation to this gentleman here but it also talked to that mom before so i think we can assume that they recognized the mother had talked to her so i think that's a piece of evidence as well there was evidence of that in your dress counsel's point that there's evidence in the record that under normal circumstances the other parent would be contacted if you put somebody new on the list i don't have i'm not sure i know where that is on the record your honor that i don't think that that exists where he said it was he said there was some evidence presented were going to how these were just a card forms are filled at that right i believe there was evidence on how the cards were filled out i don't i was just looking at the the exhibits i didn't see anything that that suggested  do not consciously usurp the dads for roger though they also had the mother who again had her bundle of constitutional rights that was just as broad as the doubts again just because she had been deported doesn't mean that she was not back in the country and she had every right to have her child go to a doctor's appointment i think that the school district had every right to believe that she had the best interest over a child at heart they have to assume