FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SARA DEES; L.G., a minor by and 

through her Guardian Ad Litem, 

Robert Schiebelhut; G.G., a minor by 

and through her Guardian Ad Litem, 

Robert Schiebelhut,

Plaintiffs-Appellees/

Cross-Appellants,

v.

COUNTY OF SAN DIEGO,

Defendant-Appellant/

Cross-Appellee,

and

SAN DIEGO COUNTY HEALTH AND 

HUMAN SERVICES AGENCY; CAITLIN 

MCCANN; SRISUDA WALSH; GLORIA 

ESCAMILLA-HUDIOR; COREY KISSEL, 

Doe 1; NORMA RINCON, Doe 2; 

ALBERTO BORBOA, Doe 3; DOES, 4–

100, inclusive,

Defendants.

Nos. 17-56621

17-56710

D.C. No.

3:14-cv-00189-

BEN-DHB

OPINION

Appeal from the United States District Court

for the Southern District of California

Roger T. Benitez, District Judge, Presiding
2 DEES V. COUNTY OF SAN DIEGO

Argued and Submitted October 23, 2019

Pasadena, California

Filed May 27, 2020

Before: Andrew J. Kleinfeld, Consuelo M. Callahan,

and Ryan D. Nelson, Circuit Judges.

Opinion by Judge R. Nelson;

Partial Concurrence and Partial Dissent by Judge Callahan

SUMMARY*

Civil Rights

The panel affirmed in part and reversed in part the 

district court’s judgment in an action alleging that a County 

social worker violated plaintiffs’ Fourth and Fourteenth 

Amendment rights during an investigation that involved 

interviewing minor plaintiff L.G. at her school.

Plaintiffs, Sara Dees and her minor children L.G. and 

G.G. alleged that their Fourth and Fourteenth Amendment 

rights were violated when a social worker sent a letter to the 

family court which falsely stated that a decision had been 

made to remove Sara’s children from her custody. Plaintiffs 

further alleged that defendants violated L.G.’s Fourth 

Amendment rights when the social worker interviewed L.G. 

at her school for 5 minutes.

* This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
DEES V. COUNTY OF SAN DIEGO 3

The panel held that this Circuit’s precedent requires that, 

to establish a Fourteenth Amendment claim based on a 

minor being separated from his or her parents, plaintiffs must 

establish that an actual loss of custody occurred; the mere 

threat of separation or being subject to an investigation, 

without more, is insufficient. The panel held that plaintiffs’ 

allegations that their rights were violated when defendant 

sent an admittedly false letter to the family court failed to 

establish a Fourteenth Amendment violation. Accordingly, 

the district court did not err by granting summary judgment 

in favor of the County on this claim.

The panel held that Sara’s allegation that her Fourteenth 

Amendment familial association right was violated as a 

result of L.G.’s 5-minute seizure at her school also failed to 

establish a claim given that Sara never actually lost control 

over L.G. Accordingly, the panel reversed the district 

court’s grant to Sara of judgment as a matter of law and, in 

the alternative, for a new trial on that claim.

The panel held that, viewing the evidence in the light 

most favorable to the County and granting the County all 

inferences therefrom, substantial evidence supported the 

jury’s verdict in favor of the County on L.G’s Fourth 

Amendment claim arising from the school seizure. Thus, the 

panel determined that the district court inappropriately 

weighed the evidence when it concluded that L.G. was 

seized and did not (or could not) consent as a matter of law. 

Accordingly, the panel reversed the district court’s grant of 

judgment as a matter of law on L.G.’s Fourth Amendment 

claim.

Although the panel reversed the district court’s grant of 

judgment as a matter of law to L.G. on her Fourth 

Amendment claim, the panel affirmed the district court’s 

grant of a new trial on that claim. The panel stated that this 
4 DEES V. COUNTY OF SAN DIEGO

result was not inherently contradictory and was driven by the 

standard of review—the district court’s ruling on a motion 

for new trial is reviewed for abuse of discretion instead of de 

novo review. The panel concluded that the district court did 

not abuse its discretion by ordering a new trial because while 

substantial evidence supported the jury’s verdict, the clear 

weight of the evidence did not compel it.

Concurring in part and dissenting in part, Judge Callahan 

concurred in the majority opinion affirming the district 

court’s judgment in favor of the County employees on the 

claims involving the false letter, reversing the district court’s 

grant of judgment as a matter of law on L.G. and Sara’s 

Fourth and Fourteenth Amendment claims regarding 

seizure, and reversing the conditional grant of a new trial to 

Sara on her seizure claim. However, Judge Callahan would 

vacate the district court’s conditional grant of a new trial to 

L.G. on the Fourth Amendment seizure claim. In Judge 

Callahan’s view, the record revealed substantial evidence 

that supported the jury’s determination, and the trial court 

had not indicated what evidence might undermine the jury’s 

verdict.
DEES V. COUNTY OF SAN DIEGO 5

COUNSEL

Caitlin E. Rae (argued), Senior Deputy; David Brodie, Chief 

Deputy; Thomas E. Montgomery, County Counsel; Office 

of County Counsel, San Diego, California; for DefendantAppellant/Cross-Appellee.

Donnie R. Cox (argued), Law Office of Donnie R. Cox,

Oceanside, California; Paul W. Leehey, Law Office of Paul 

W. Leehey, Fallbrook, California; Robert R. Powell, Powell 

& Associates, San Jose, California; for PlaintiffsAppellees/Cross-Appellants.

OPINION

R. NELSON, Circuit Judge:

The County of San Diego appeals the district court’s 

post-verdict grant of judgment as a matter of law on Fourth 

and Fourteenth Amendment claims regarding the alleged 

seizure of a minor, L, by a social worker. Cross-Appellants 

L and Sara Dees appeal the district court’s grant of summary 

judgment on their Fourteenth Amendment claims regarding 

the County’s false letter allegedly impairing their right to 

familial association.

We reverse the district court’s grant of judgment as a 

matter of law on L and Sara’s respective Fourth and 

Fourteenth Amendment claims regarding the seizure. We 

also reverse the district court’s conditional grant of a new 

trial to Sara on her seizure claim. We affirm the district 

court’s judgment in favor of the County employees on L and 

Sara’s Fourteenth Amendment claims involving the false 
6 DEES V. COUNTY OF SAN DIEGO

letter. Finally, we affirm the district court’s conditional 

grant of a new trial on L’s Fourth Amendment claim.

I

On February 7, 2013, Ka and Ky’s biological mother, 

Kelly Hunter, reported to San Diego County’s Health and 

Human Services Agency (“Agency”) that her ex-husband, 

Robert Dees, had taken naked photos of their thirteen-yearold daughter, Ka. Hunter’s referral was assigned to County 

social worker Caitlynn McCann.

Pursuant to Agency policy, a companion referral was 

created for L and G because they primarily resided in the 

house that Robert shared with his wife, Sara. L and G are 

Sara’s children from her prior marriage to Alfredo Gil. L, a 

nine-year-old girl at the time, suffers from several cognitive 

disabilities. She has been diagnosed with anxiety, ADHD, 

and is “probably on the autism spectrum.” L is also very 

bright, impulsive, and prone to outbursts.

McCann began her investigation by interviewing Ka and 

attending a police interview of Robert. Both Robert and Ka 

acknowledged that Robert had taken naked photos of Ka, 

ostensibly at Ka’s request as part of a project to document 

her body’s changes during puberty. The police, after 

completing their forensic interview with Robert, inspected 

the camera that had been used to take the photos. According 

to Robert, the photos of Ka had been deleted by Sara’s sister, 

who discovered them. Robert would not allow the police to 

take the camera because he claimed that it also contained 

naked photos of him and Sara.

After McCann interviewed Robert and Ka, she 

interviewed L. L told McCann that Hunter was trying to 

“make Rob[ert] look wrong” and that Robert had not taken 
DEES V. COUNTY OF SAN DIEGO 7

any nude photos of her. At the end of the day, Robert agreed, 

at McCann’s request, to move out of the home during the 

investigation and to produce Ka for a forensic interview.

The next day, McCann informed Gil, L and G’s 

biological father, that he “was going to be given full custody 

of . . . [his] two daughters . . . [because] their step-father had 

taken nude photos of” Ka. Gil picked up his daughters that 

day under the operative custody arrangement. He arranged 

for L and G to stay at their grandmother’s house during the 

following week, even though L and G were scheduled to stay 

with Sara.

Sara and Robert subsequently secured legal counsel and 

a hearing at which they sought “to change the custodial 

rights back to the . . . original custodial rights.” The family 

court judge agreed, over Gil’s objections, and ordered the 

children returned to Sara pursuant to the preexisting custody 

arrangement. Sara took back custody of L and G shortly 

thereafter.

After learning about the family court’s decision, 

McCann’s supervisor ordered McCann to wrap up her 

investigation. Agency policy required McCann to complete 

a final welfare check on L and G, and “a lot of loose ends 

. . . [and] discrepancies” still left McCann suspicious that 

illegal activities were taking place. McCann’s suspicions 

were not shared by the San Diego Police Department, which 

closed its investigation and advised McCann that the District

Attorney was not seeking a search warrant for Robert’s 

camera. Still, McCann believed the criminal investigation 

was ongoing.

McCann called the Dees to arrange a final interview of 

L and G. L and G’s grandmother, who was staying at the 

Dees’ home, told McCann that she was not to interview L or 
8 DEES V. COUNTY OF SAN DIEGO

G without an attorney present. Despite the grandmother’s 

instruction, McCann went to L and G’s school to interview 

them. McCann believed that school district policy allowed 

her to interview the kids at school in a case of suspected child 

abuse. The school district’s policy does not require the 

social worker to notify the parents or to obtain parental 

consent, but the social worker must:

1. advise the child of the right to have school 

personnel present during the interview[;]

2. advise the child that (s)he may stop the 

interview at any time and periodically 

check with the child during the interview 

to determine if (s)he is comfortable with 

continuing the interview. If the child says 

to stop, then the [social worker] will 

immediately terminate the interview[;]

3. not include law enforcement in the 

interview[; and]

4. complete the interview within 

developmentally-appropriate time limits, 

which will never exceed 60 minutes.

McCann asked a school assistant to bring L to the 

administrative office. L was willing to talk with McCann. 

McCann told L that a school official could remain in the 

room, L could stop the interview at any time, and if L had 

any questions, McCann would try to answer them. L did not 

want a school official in the room during the interview and 

never indicated that she wanted to stop talking to McCann.

The interview lasted five minutes. McCann asked L 

whether Robert, despite agreeing to remain out of the house 
DEES V. COUNTY OF SAN DIEGO 9

during the pendency of the investigation, was, in fact, back 

in the house. McCann did not ask L directly if Robert had 

taken nude photos of her but understood from the 

conversation that no such photos existed. The interview 

ended “naturally” when McCann finished her questions and 

L indicated she did not have any questions for McCann. A 

school official then escorted L back to her classroom.

L’s emotional state during and after the interview is 

disputed. According to McCann, L was “diplomatic” during 

the interview and was not upset immediately after the 

interview. Sara, who happened to be in the school when L 

was interviewed, disputes McCann’s assessment of L’s 

emotional state. According to Sara, L was upset after the 

interview, screaming “CPS is here, CPS is here.”

Two days later, McCann was unambiguously informed 

by the police that their investigation was closed. A week 

later, McCann closed her own investigation, finding any 

allegation that L was being abused “unfounded”—meaning 

that she concluded, under Agency policy, there had “been no 

shown abuse, and there [was] no basis for the allegation.”

That same day, McCann sent a letter, signed by Gloria 

Escamilla-Huidor and Alberto Borboa (McCann’s 

supervisors), to the family court overseeing the custody 

dispute between Sara and Gil. The letter stated that “[a] 

decision has been made to remove the child(ren) [L and G] 

from the custodial parent [Sara] and place [them] with the 

non-custodial parent [Gil] to avoid placing the child(ren) 

into Polinsky Children’s Center, foster home or adjunct.” 

The statement in the letter was false because L and G were 

never removed from Sara’s custody. At trial, the County’s 

own expert testified that the letter was “not correct” and 

“ma[de] no sense.” McCann testified that the quoted 

language was “standard language . . . [that she] couldn’t 
10 DEES V. COUNTY OF SAN DIEGO

have edited . . . if . . . [she] wanted to” and that the letter 

“was sent on behalf of . . . [Gil], who was concerned about 

his children and was looking for custody.” The letter was 

received by the family court, but the family court never acted 

on it. L and G have remained in Sara’s primary custody 

since February 13, 2013.

Sara and L brought multiple claims against the County 

and various County employees alleging, among other things, 

violations of their Fourth and Fourteenth Amendment rights. 

In particular, Sara and L brought claims against the County 

employees alleging violations of the Fourteenth Amendment 

right to familial association by sending the false letter to the 

family court. The County employees moved for summary 

judgment on those claims. Despite noting that “McCann’s 

conduct in preparing the March 7 letter . . . [was] alarming,” 

the district court concluded “the letter caused no harm to 

Plaintiffs.” Accordingly, the district court granted summary 

judgment to McCann, Huidor, and Borboa on Sara and L’s 

Fourteenth Amendment claims related to the false letter.

A jury trial was subsequently held on the remaining 

claims. At the close of the County’s case, Sara and L moved, 

pursuant to Federal Rule of Civil Procedure (“Rule”) 50(a), 

for judgment as a matter of law on their respective 

Fourteenth and Fourth Amendment claims regarding 

McCann’s alleged seizure of L. The district court took the 

motion under advisement and submitted the case to the jury.

The jury returned a verdict in favor of the County on all 

counts. The jury answered “No” to the question, “Did 

Caitlin McCann violate the 4th Amendment Constitutional 

rights of . . . [L] when she conducted the school 

interview[]?” The jury also answered “No” to the question, 

“Did Caitlin McCann violate the 14th Amendment 

Constitutional right of Sara Dees when she conducted the –
DEES V. COUNTY OF SAN DIEGO 11

?” Because the jury concluded no constitutional violations 

occurred, it did not reach whether McCann was acting 

pursuant to an official County policy, whether that policy 

caused the constitutional violations, or whether L or Sara 

were damaged by the constitutional violations.

L and Sara subsequently renewed their Rule 50(a) 

motion under Rule 50(b) and, in the alternative, sought a new 

trial pursuant to Rule 59. The district court granted L and 

Sara’s renewed Rule 50 motion and conditionally granted a 

new trial pursuant to Rules 59 and 50(c)(1). It made the 

following findings:

1. McCann seized L during the school interview; 

2. McCann’s seizure of L was unreasonable because 

there was no “warrant, court order, parental consent, 

exigency, or at the very least, reasonable suspicion to 

seize and interview L”;

3. McCann’s unreasonable seizure of L violated Sara’s 

Fourteenth Amendment familial association right;

4. McCann interviewed L pursuant to a County policy; 

and

5. the County’s policy of allowing social workers to 

interview children caused the constitutional 

violations.

The County, Sara, and L filed timely notices of appeal. 

Accordingly, the following claims are now before us:

1. Sara and L’s Fourteenth Amendment claim for 

familial interference regarding the false letter;
12 DEES V. COUNTY OF SAN DIEGO

2. Sara’s Fourteenth Amendment claim against the 

County regarding McCann’s seizure of L; and

3. L’s Fourth Amendment claim against the County 

regarding her seizure by McCann.

II

A district court’s grant of summary judgment is reviewed 

de novo. O’Rourke v. N. California Elec. Workers Pension 

Plan, 934 F.3d 993, 998 (9th Cir. 2019).

A district court’s grant of judgment as a matter of law is 

also reviewed de novo. Krechman v. County of Riverside, 

723 F.3d 1104, 1109 (9th Cir. 2013). We “must view the 

evidence in the light most favorable to the nonmoving party 

. . . and draw all reasonable inferences in that party’s favor.” 

EEOC v. Go Daddy Software, Inc., 581 F.3d 951, 961 (9th 

Cir. 2009) (internal quotation marks omitted). The district 

court may not weigh evidence or make credibility 

determinations when reviewing a motion for judgment as a 

matter of law. Id. “A jury’s verdict must be upheld if it is 

supported by substantial evidence . . . even if it is also 

possible to draw a contrary conclusion from the same 

evidence.” Wallace v. City of San Diego, 479 F.3d 616, 624 

(9th Cir. 2007) (internal quotation marks and citation 

omitted).

Finally, the district court’s ruling on a motion for new 

trial is reviewed for abuse of discretion. OTR Wheel Eng’g, 

Inc. v. W. Worldwide Servs., Inc., 897 F.3d 1008, 1022 (9th 

Cir. 2018). Indeed, “[t]he authority to grant a new trial . . .

is confided almost entirely to the exercise of discretion on 

the part of the trial court.” Allied Chemical Corp. v. Daiflon, 

Inc., 449 U.S. 33, 36 (1980) (emphasis added). We may 

reverse a district court’s grant of a new trial only if the jury’s 
DEES V. COUNTY OF SAN DIEGO 13

verdict is supported by the clear weight of the evidence and 

“must uphold the district court if any of its grounds for 

granting a new trial are reasonable.” United States v. 4.0 

Acres of Land, 175 F.3d 1133, 1139 (9th Cir. 1999).

III

We begin with the Fourteenth Amendment claims, 

including Sara and L’s appeal of the district court’s grant of 

summary judgment on their claims regarding the false letter. 

We then turn to the district court’s grant of judgment as a 

matter of law and, in the alternative, a new trial to Sara on 

her claim regarding McCann’s seizure of L.

A

After the parties fully briefed their appeals, this Court 

issued its decision in Capp v. County of San Diego, 940 F.3d 

1046 (9th Cir. 2019). In Capp, a father and his two children 

sued the County of San Diego and County social workers 

alleging violations of the First, Fourth, and Fourteenth 

Amendments. Specifically, the children alleged their Fourth 

Amendment rights were violated when the social workers 

seized and interviewed them during a child abuse 

investigation into their father. Id. at 1059–60. The father 

brought a separate Fourteenth Amendment claim, id.

at 1060, alleging the County placed him on a child abuse 

monitoring list and encouraged his ex-wife to withhold the 

children from him while she sought custody in family court 

(which was ultimately denied). Id. & n.9. This Court 

affirmed the district court’s dismissal of the Fourth and 

Fourteenth Amendment claims. Id. at 1059–60. With 

respect to the Fourteenth Amendment claims, we stated:

Plaintiffs do not allege that Capp actually lost

custody of his children as a result of 
14 DEES V. COUNTY OF SAN DIEGO

Defendants’ alleged misconduct. Capp 

might have been subjected to an investigation 

by the Agency, but that alone is not 

cognizable as a violation of the liberty 

interest in familial relations.

Id. at 1060 (emphasis added) (footnote omitted).

Capp’s holding built on Mann v. County of San Diego, 

907 F.3d 1154 (9th Cir. 2018). In Mann, social workers 

investigating a child abuse allegation omitted exculpatory 

information from their application to the family court to take 

custody of the allegedly abused children. Id. at 1158. The 

family court granted the application, and the social workers 

removed the children from their parents’ custody. Id. The 

social workers then took the children to a temporary shelter 

for children and allowed medical professionals to perform 

invasive medical examinations on the children, including 

gynecological and rectal exams. Id.

The parents of the children alleged that the County 

violated their Fourteenth Amendment substantive due 

process rights “when it perform[ed] the . . . medical 

examinations without notifying the parents about the 

examinations and without obtaining either parents’ consent 

or judicial authorization.” Id. at 1161. We reversed the 

lower court and agreed with the parents’ position, holding 

“the County’s failure to provide parental notice or to obtain 

consent violated . . . [the parents’] Fourteenth Amendment 

rights.” Id. at 1164.

Reading Capp and Mann together, our Court requires 

that, to establish a Fourteenth Amendment claim based on a 

minor being separated from his or her parents, plaintiffs must 

establish that an actual loss of custody occurred; the mere 
DEES V. COUNTY OF SAN DIEGO 15

threat of separation or being subject to an investigation, 

without more, is insufficient.

B

Applying our precedent to Sara and L’s Fourteenth 

Amendment claims regarding the false letter, we affirm the 

district court, but on alternate grounds.1

As we have described, the mere threat by a social worker 

to take away a child is insufficient to support a Fourteenth 

Amendment claim. Furthermore, the improper conduct in 

Capp, which included falsely informing the father that he 

had been placed on a sex offender list and actively 

encouraging the mother to withhold the child and seek sole 

custody in family court, goes well beyond the conduct at 

issue here. 940 F.3d at 1060. Mann is the same. In that case, 

the bases of the parents’ Fourteenth Amendment claims were 

the gynecological and rectal exams performed on the 

children without parental notification or consent. 907 F.3d 

at 1161. The admittedly false letter falls short of the 

offending conduct in Capp and pales in comparison to the 

conduct in Mann.

Sara’s argument to the contrary is unpersuasive. She 

characterizes the false letter as a ticking “time bomb” 

waiting to go off if the family court ever reopens the case. 

1 The district court granted summary judgment to the County on Sara 

and L’s Fourteenth Amendment claims regarding the false letter because 

“the letter caused no harm to Plaintiffs.” This holding is difficult to 

reconcile with our precedent and the Supreme Court’s holding that “the 

denial of procedural due process should be actionable for nominal 

damages without proof of actual injury.” Carey v. Piphus, 435 U.S. 247, 

266 (1978); see also Draper v. Coombs, 792 F.2d 915, 921 (9th Cir. 

1986) (applying Carey to a substantive due process claim).
16 DEES V. COUNTY OF SAN DIEGO

But that analogy is pure hyperbole, especially since the 

family court did nothing after receiving the letter. We have 

no doubt that, if the family court case is ever reopened, 

ample evidence—and a citation to this opinion—will 

dissuade the family court from taking any action based on 

what all acknowledge is a false representation in the letter.

Sara also claims McCann violated her Fourteenth 

Amendment familial association right when McCann 

allegedly seized L at school. This presents a closer question. 

But again, in light of our discussion above, we conclude that 

Capp bars Sara from successfully pursuing this claim. Capp

plainly holds that a cause of action does not lie where the 

social worker is accused of seizing a child and the parent has 

not “actually lost” control over the child. Id. at 1060. Here, 

McCann’s interview of L lasted five minutes. No evidence 

suggests that McCann interviewed L to coerce or otherwise 

intimidate either Sara or L. Instead, McCann simply 

intended to “wrap things up.” In effect, Sara never actually 

lost control over L. Moreover, as we hold below, see infra 

§ IV.A, the district court erred in granting L judgment as a 

matter of law on her Fourth Amendment claim, which also 

precludes Sara’s Fourteenth Amendment claim on the 

seizure. Accordingly, we reverse the district court’s grant to 

Sara of judgment as a matter of law and, in the alternative, a 

new trial.

IV

Finally, we turn to L’s Fourth Amendment claim 

regarding her alleged seizure at school. L’s claim went to 

the jury, which answered “No” to the question of whether 

“Caitlin McCann violate[ed] the 4th Amendment 

Constitutional rights of . . . [L] when she conducted the –?” 

Post-trial, the district court set aside the jury verdict and 

concluded that, as a matter of law, McCann unreasonably 
DEES V. COUNTY OF SAN DIEGO 17

seized L. In the alternative, the district court conditionally 

granted a new trial to L on this claim. In doing so, the district 

court made several findings, but on appeal the County 

challenges only one finding: that the interview was an 

unreasonable seizure. Because we agree on de novo review 

with the County that substantial evidence supports the jury’s 

verdict regarding the school interview, we reverse the 

district court’s grant of judgment as a matter of law. But 

because the clear weight of the evidence does not support the 

jury’s verdict, in combination with our healthy deference to 

the trial court, we affirm the grant of a new trial.

A

The Fourth Amendment protects a child’s right to be free 

from unreasonable seizure by a social worker. See 

Kirkpatrick v. Cty. of Washoe, 843 F.3d 784, 790–91 (9th 

Cir. 2016) (en banc). “A ‘seizure’ triggering the Fourth 

Amendment’s protections occurs only when government 

actors have, ‘by means of physical force or show of authority 

. . . in some way restrained the liberty of a citizen.’” Graham 

v. Connor, 490 U.S. 386, 395 n.10 (1989) (quoting Terry v. 

Ohio, 392 U.S. 1, 19 n.16 (1968)). “When the actions of the 

[official] do not show an unambiguous intent to restrain or 

when an individual’s submission to a show of governmental 

authority takes the form of passive acquiescence . . . a 

seizure occurs if, ‘in view of all of the circumstances 

surrounding the incident, a reasonable person would have 

believed that he was not free to leave.’” Brendlin v. 

California, 551 U.S. 249, 255 (2007) (quoting United States 

v. Mendenhall, 446 U.S. 544, 554 (1980)). Whether a person 

is seized for purposes of the Fourth Amendment is a mixed 

question of law and fact. United States v. Cormier, 220 F.3d 

1103, 1110 (9th Cir. 2000). Whether a person is being 

compelled to answer an official’s questions, rather than 
18 DEES V. COUNTY OF SAN DIEGO

freely consenting to answer them, is a question of fact. 

United States v. Ryan, 548 F.2d 782, 789 (9th Cir. 1976).

Turning to this case, the district court inappropriately 

weighed the facts when it granted judgment as a matter of 

law. In determining whether L did not consent to the 

interview, the district court discounted the fact that the 

interview lasted only five minutes. Additionally, the district 

court acknowledged McCann’s testimony that “L did not 

seem upset,” but then concluded, apparently solely on the 

basis of Sara’s testimony, that “the circumstances show that 

L was upset by the interview.” Finally, the district court did 

not consider that L failed to end the conversation with 

McCann despite being explicitly told that she could do so. 

Broadly, the district court inappropriately weighed the facts 

before it, despite acknowledging, earlier in the proceedings, 

that seizure and consent are fact intensive inquires for which 

the jury is well suited to make the determinations.

Nor do the cases upon which the district court relied in 

its decision to grant L judgment as a matter of law—Greene 

v. Camreta, 588 F.3d 1011 (9th Cir. 2009) vacated in part 

sub nom. Camreta v. Greene, 563 U.S. 692 (2011); Stoot v. 

City of Everett, 582 F.3d 910 (9th Cir. 2009); Jones v. Hunt, 

410 F.3d 1221 (10th Cir. 2005); and Doe v. Heck, 327 F.3d 

492 (7th Cir. 2003)—compel the conclusion that L was 

seized and did not consent to the interview. Each case is 

factually distinguishable. First, in each case a police officer 

either conducted the interview or was present during the 

interview. Greene, 588 F.3d at 1017; Stoot, 582 F.3d at 913; 

Jones, 410 F.3d at 1226; Heck, 327 F.3d at 510. No police 

officer was present during McCann’s interview of L. 

Furthermore, the interviews in Greene, Stoot, and Jones

lasted anywhere from one to two hours. Greene, 588 F.3d 

at 1017; Stoot, 582 F.3d at 915; Jones, 410 F.3d at 1226. In 
DEES V. COUNTY OF SAN DIEGO 19

Heck, the interview lasted twenty minutes. 327 F.3d at 510. 

Here, in contrast, McCann’s interview of L was just five 

minutes. To be sure, the fact that L was nine and suffers 

from cognitive difficulties creates a higher probability that 

she did not feel free to leave or may not have consented to 

the interview. But, at a minimum, the factual differences 

between Greene, Stoot, Jones, and Heck on the one hand and 

this case on the other, undermines reliance on those cases 

here. In short, the district court erred in finding that those 

cases compelled the conclusion that L was seized and did not 

consent as a matter of law.

At bottom, the district court impermissibly weighed the 

evidence before it and concluded that L was seized and did 

not (or could not) consent as a matter of law. As the district 

court, Sara, and L all acknowledge, the facts both support 

and undercut the jury’s verdict. Viewing the evidence in the 

light most favorable to the County and granting the County 

all inferences therefrom, substantial evidence supports the 

jury’s verdict. None of the caselaw cited by the district 

court, Sara, or L supports the conclusion that, under the facts 

of this case, L was seized and did not consent as a matter of 

law. Accordingly, we reverse the district court’s grant to L 

of judgment as a matter of law on her Fourth Amendment 

claim.

B

Although we reverse the district court’s grant of 

judgment as a matter of law to L on her Fourth Amendment 

claim, we affirm the district court’s grant of a new trial. We 

acknowledge the tension in this decision. Above, we 

conclude that the district court erred by granting L judgment 

as a matter of law. Here, we conclude that the district court 

properly granted a new trial on the same claim. But such a 

decision is not unprecedented in this Circuit or our sister 
20 DEES V. COUNTY OF SAN DIEGO

circuits. See Garter-Bare Co. v. Munsingwear Inc., 723 F.2d 

707, 716–17 (9th Cir. 1984) (reversing grant of judgment as 

a matter of law to a defendant while simultaneously 

affirming the grant of a new trial to the same defendant);

Christopher v. Florida, 449 F.3d 1360, 1362 (11th Cir. 

2006) (same).

This result is not inherently contradictory and is driven 

by the standard of review. The district court’s ruling on a 

motion for new trial is reviewed for abuse of discretion 

instead of de novo review, which we applied above. See 

OTR Wheel Eng’g, Inc., 897 F.3d at 1022. Indeed, “[t]he 

authority to grant a new trial . . . is confided almost entirely

to the exercise of discretion on the part of the trial court.” 

Allied Chemical, 449 U.S. at 36 (emphasis added). The 

district court’s decision to grant a new trial must stand unless 

the jury’s verdict is supported by the clear weight of the 

evidence and we “must uphold the district court if any of its 

grounds for granting a new trial are reasonable.” 4.0 Acres 

of Land, 175 F.3d at 1139.

With this highly deferential standard of review firmly in 

mind, we turn to the district court’s opinion. The bulk of the 

opinion analyzes whether Sara and L were entitled to 

judgment as a matter of law. On the final page of the 

opinion, the district court acknowledged its obligation to rule 

on the alternative motion for a new trial and held “the Court 

conditionally grants the motion for a new trial because the 

clear weight of the evidence does not support the verdict.”

First, we dispose of the sole argument offered by the 

County regarding the district court’s decision to order a new 

trial: namely, that the district court “failed to identify how

the verdict was against the clear weight of the evidence, or 

what evidence it relied on in reaching that conclusion.” We 

disagree. The district court issued a well-reasoned, though 
DEES V. COUNTY OF SAN DIEGO 21

ultimately incorrect, opinion granting judgment as a matter 

of law, which is, of course, a higher standard for plaintiffs to 

meet than the standard for a new trial. Requiring the district 

court to copy and paste its judgment as a matter of law 

analysis under a separate header for a new trial makes little, 

if any, sense. The district court did not abuse its discretion 

by failing to do so.

Second, the district court did not abuse its discretion by 

ordering a new trial. Properly framed, the question is 

whether the district court abused its discretion in concluding 

that the jury’s verdict was not supported by the clear weight 

of the evidence. 4.0 Acres of Land, 175 F.3d at 1139. The 

County’s burden in persuading us that the district court 

abused its discretion is an extraordinarily high hurdle, as the 

Supreme Court has made clear. Allied Chemical Corp., 

449 U.S. at 36.

Rightfully so. The district court, having sat through all 

of the testimony and with the benefit of credibility 

determinations that cannot readily be made on a cold record, 

felt so strongly that the jury erred that he ordered a new trial. 

Moreover, the facts here support the “reasonableness” of the 

district court’s opinion: it is at least arguable whether a nineyear old girl with cognitive disabilities, called into the 

administrative office of her school by a woman who she 

knew had the authority to disrupt her family’s life, would 

feel empowered to leave or could have consented to the 

discussion. Cf. J.D.B. v. North Carolina, 564 U.S. 261, 272 

(2011) (holding that a thirteen-year-old’s age would have 

affected how a reasonable person in the suspect’s position 

would perceive his or her freedom to leave for purposes of 

Miranda’s custody determination (quotations omitted)). 

While substantial evidence supports the jury’s verdict, the 

clear weight of the evidence does not compel it. In short, the 
22 DEES V. COUNTY OF SAN DIEGO

district court did not abuse its discretion in concluding that 

the jury’s verdict was not supported by the clear weight of 

the evidence.

V

Sara and L’s Fourteenth Amendment claims regarding 

the false letter are barred by our decisions in Capp and 

Mann, as is Sara’s Fourteenth Amendment claim regarding 

the school seizure. Moreover, substantial evidence 

supported the jury’s verdict in favor of the County on L’s 

Fourth Amendment claim. However, the district court did 

not abuse its discretion in concluding that the clear weight of 

the evidence did not support the jury’s verdict on L’s Fourth 

Amendment claim.

Each party shall bear its own costs on appeal.

AFFIRMED IN PART and REVERSED AND 

REMANDED IN PART.

CALLAHAN, Circuit Judge, concurring in part and 

dissenting in part:

I concur in the majority opinion affirming the district 

court’s judgment in favor of the County employees on the 

claims involving the false letter, reversing the district court’s 

grant of judgment as a matter of law on L and Sara’s Fourth 

and Fourteenth Amendment claims regarding seizure, and 

reversing the conditional grant of a new trial to Sara on her 

seizure claim. However, I would vacate the district court’s 

conditional grant of a new trial to L. The majority sustains 

the district court’s grant of a new trial holding that the 

district court did not abuse its discretion in deciding that the 
DEES V. COUNTY OF SAN DIEGO 23

jury’s verdict was not supported by the clear weight of the 

evidence. I disagree.

As noted by the majority, in United States v. 4.0 Acres of 

Land, 175 F.3d 1133, 1139 (9th Cir. 1999), we held that a 

“trial court may grant a new trial, even though the verdict is 

supported by substantial evidence,” and that we should 

“uphold the district court if any of its grounds for granting a 

new trial are reasonable.” But we also stated that such a 

grant is proper only “if ‘the verdict is contrary to the clear 

weight of the evidence, or is based upon evidence which is 

false, or to prevent, in the sound discretion of the trial court, 

a miscarriage of justice.’” Id. (quoting Oltz v. St. Peter’s 

Community Hosp., 861 F.2d 1440, 1452 (9th Cir.1988)). We 

noted that “[t]he corollary, of course, is that a district court 

may not grant or deny a new trial merely because it would 

have arrived at a different verdict.” Id. (citing Wilhelm v. 

Associated Container Transp. (Australia) Ltd., 648 F.2d 

1197, 1198 (9th Cir. 1981)). We held that “we may find that 

a district court abused its discretion in ordering a new trial if 

the jury’s verdict is not against the clear weight of the 

evidence.” Id. (citing Roy v. Volkswagen of Am. Inc., 

896 F.2d 1174, 1176 (9th Cir. 1990), amended, 920 F.2d 618 

(1991)). In 4.0 Acres, we actually vacated the grant of a new 

trial, noting that “[w]here the jury’s verdict is not against the 

clear weight of the evidence, a district court abuses its 

discretion in ordering a new trial.” Id. at 1143.

This is one of those instances where the district court 

abused its discretion in granting a new trial contrary to the 

jury’s determination. The question whether “Caitlin 

McCann violat[ed] the 4th Amendment Constitutional right 

of . . . [L] when she conducted the school interview” was put 

to the jury. The jury, which heard all the evidence, answered 

“No.” The brevity of the in-school interview was not 
24 DEES V. COUNTY OF SAN DIEGO

contested. Nor was L’s agreement to speak with McCann or 

her behavior during the interview. There was some 

conflicting evidence as to L’s subsequent reaction to the 

interview, but, again, the jury heard all that evidence. Even 

giving all of L’s witnesses the benefit of the doubt, a jury 

would not likely conclude—in light of the uncontested facts 

surrounding the interview—that the five-minute interview 

violated L’s Fourth Amendment constitutional rights.

As the majority correctly notes in vacating the district 

court’s grant of judgment as a matter of law, our prior 

decisions cited by L do not require a finding that her 

interview constituted an unreasonable seizure. Our most 

recent precedent, Greene v. Camreta, 588 F.3d 1011 (9th 

Cir. 2009), concerned a two-hour questioning of an 

elementary school girl by a social worker and an armed 

police officer in a private office at the girl’s school. Id. 

at 1015. The social worker did not have a warrant, probable 

cause, or parental consent. Id. The defendants did not 

contest that the two-hour interview constituted a seizure but 

argued that it was not unreasonable. Id. at 1022. We 

recognized that the defendants’ claim of qualified immunity 

required a delicate balancing of competing interests, and we 

ultimately held that although the two-hour interview 

constituted an unreasonable seizure in violation of the young 

girl’s constitutional rights, the defendants were entitled to 

qualified immunity.1

 Id. at 1033.

1 Similarly in Stoot v. City of Everett, 582 F.3d 910 (9th Cir. 2009),

where a fourteen-year-old boy was taken out of his school class and 

interviewed for about two hours, the defendant officer did not contest 

that the interview constituted a seizure. In Stoot, we again affirmed the 

district court’s grant of qualified immunity for the seizure.
DEES V. COUNTY OF SAN DIEGO 25

Recognizing that Greene was a close case, what in our 

case supports the determination that the jury verdict was not 

supported by the clear weight of the evidence? Certainly, as 

the majority asserts, it “is at least arguable whether a nineyear old girl with cognitive disabilities, called into the 

administrative office of her school by a woman who she 

knew had the authority to disrupt her family’s life, would 

feel empowered to leave or could have consented to the 

discussion.” Majority at 21. But, at most, these 

considerations support a determination that the interview 

constituted a seizure. They do not require, or inherently 

support, a determination that the “seizure” was 

unreasonable.

More importantly, what is “at least arguable” does not 

address the weight of the evidence. A number of 

uncontested facts support the jury’s verdict. Although L 

suffers from several cognitive disabilities, she is very bright. 

She was asked if she wanted a school staff member to be 

present during the interview and she said no. L was asked if 

she was willing to talk to McCann, and she agreed to do so. 

The interview lasted only five minutes, during which L 

answered McCann’s questions and indicated that she did not 

have any questions for McCann. After the interview L was 

escorted back to her classroom and, according to school 

officials, did not seem upset.2

My colleagues and I agree that substantial evidence 

supported the jury’s verdict. We not only conclude that the 

trial court erred in granting judgment as a matter of law by 

improperly weighing the evidence, but, critically, we also 

2 Contrary to the situation in Greene, there is no indication that 

McCann was threatening, and she was not accompanied by a police

officer (a fact that was stressed in our opinion in Greene).
26 DEES V. COUNTY OF SAN DIEGO

conclude that the evidence was sufficient to support the 

jury’s verdict. Majority at 19 (“None of the caselaw cited 

. . . supports the conclusion that, under the facts of this case, 

L was seized and did not consent as a matter of law.”). In 

light of this determination, for us to sustain the grant of a 

new trial, it should be clear what evidence is contrary to the 

jury’s verdict. Here, the only explanation offered by the trial 

court was its understanding of the applicable law, which we 

have held was incorrect. Furthermore, this is not a situation 

where a party could not present all the relevant information 

to the jury or where the judge was privy to information not 

shared by the jury. 3

This appeal presents a relatively unique situation. After 

an issue had been referred to a jury and the jury returned its 

decision, the trial court granted judgment as a matter of law 

and conditionally granted the motion for a new trial, contrary 

to the jury’s determination. Then, on appeal, we hold that 

(1) district court erred in granting judgment as a matter of 

law, and (2) the jury’s finding is supported by substantial 

evidence. In such a situation, the grant of a motion for a new 

trial is an abuse of discretion unless it is clear from the 

record, or from the trial court’s explanation, why the jury’s 

verdict was not supported by the clear weight of the 

evidence. See 4.0 Acres, 175 F.3 at 1143 ( “Where the jury’s 

verdict is not against the clear weight of the evidence, a 

district court abuses its discretion in ordering a new trial.”). 

Because my review of the record reveals substantial 

evidence that supports the jury’s determination, and the trial 

court has not indicated what evidence might undermine the 

3 There is no suggestion that any of the evidence presented was false

and we see no evidence of a “miscarriage of justice.” See 4.0 Acres, 

175 F.3d at 139.
DEES V. COUNTY OF SAN DIEGO 27

jury’s verdict, I would vacate the grant of the motion for new 

trial.