Opinion

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 SOUTHERN DISTRICT OF CALIFORNIA 8 Case No.: 24-cv-01695-DMS-AHG 9 MARIA HERTA, 10 Plaintiff, ORDER SCREENING PLAINTIFF’S 11 v. SECOND AMENDED COMPLAINT TIFFANI BUI, 12 Defendant. 13 14 15 16 17 On November 13, 2024, Plaintiff Maria Herta, proceeding pro se, filed a Second 18 Amended Complaint (“SAC”) against Defendant Tiffani Bui, a Family Court Counselor. 19 (Second Am. Compl. (“SAC”), ECF No. 7 at 1–2). Plaintiff brings constitutional and state- 20 law claims arising from Defendant’s work on a custody dispute over Plaintiff’s minor child 21 in the San Diego Superior Court. (Id. at 2, 6–8). As Plaintiff is proceeding in forma 22 pauperis (“IFP”), the Court is required to screen the SAC pursuant to 28 U.S.C. 23 § 1915(e)(2). For the following reasons, the Court sua sponte dismisses Plaintiff’s SAC 24 without further leave to amend. 25 I. BACKGROUND 26 Plaintiff alleges that Defendant violated her rights while serving as a Family Court 27 Counselor in a custody dispute between Plaintiff and her child’s father, involving an order 28 granting the father sole legal custody and requiring Plaintiff’s visits with the child to be 1 supervised. (SAC 2, 4). Plaintiff alleges that prior to making recommendations in the 2 custody matter, Defendant conducted a “private or secret interview” with her minor child 3 and failed to examine text messages and statements from the child’s father which 4 contradicted other evidence. (Id. at 4–5). Plaintiff further alleges that Defendant failed to 5 properly notify Plaintiff of the terms of an October 2022 custody order which resulted in 6 Plaintiff being accused of kidnapping her child in May 2023. (Id. at 5). Plaintiff states that 7 on May 21, 2023, her minor child told his teacher that his father had physically hit him and 8 sent an email “indicating significant distress, including symptoms such as headaches, 9 inability to speak, and inability to walk.” (Id. at 3). Plaintiff alleges that Defendant failed 10 to investigate or report these allegations. (Id.). Plaintiff alleges that on that same day, her 11 child’s medical records indicated there was a “behavior issue conflict parent-child,” but 12 that Defendant failed to review or address the records. (Id.). 13 On September 23, 2024, Plaintiff filed this action with a Motion to Proceed IFP. 14 (ECF Nos. 1–2). Plaintiff subsequently filed a First Amended Complaint (“FAC”) as a 15 matter of right. (ECF No. 3). On October 9, 2024, the Court granted Plaintiff’s IFP 16 Motion, but dismissed the FAC without prejudice for failing to contain a “short and plain 17 statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a); 18 (ECF No. 4). On November 5, 2024, Plaintiff filed a Motion for Leave to Electronically 19 File Documents, which the Court denied. (ECF Nos. 5, 6). Plaintiff then filed her SAC. 20 (ECF No. 7). On December 17, 2024, Plaintiff again moved for permission to 21 electronically file, which the Court granted. (ECF Nos. 8, 9). On October 16, 2025, 22 Plaintiff filed a Notice of Filing of New Evidence, requesting that the Court take judicial 23 notice of a letter from the Board of Behavioral Sciences confirming that Defendant is not 24 a licensee or registrant of the Board. (ECF No. 14). Plaintiff now asserts five claims. 25 (SAC 6–8). The first cause of action is a Fourteenth Amendment claim brought through 26 42 U.S.C. § 1983, alleging that Defendant violated Plaintiff’s rights to due process and 27 family integrity. (Id. at 6–7). The second cause of action alleges that “Defendant violated 28 California Penal Code § 11166 by failing to report suspected child abuse or investigate the 1 allegations.” (Id. at 7). The third cause of action is for negligence and professional 2 misconduct for “failure to properly investigate parental alienation, consider all relevant 3 evidence, and ensure the child’s best interests were protected.” (Id. at 7). The fourth cause 4 of action is a First Amendment claim alleging that “Defendant’s secret interview with 5 Plaintiff’s child . . . interfered with Plaintiff’s First Amendment rights, including the 6 fundamental right to raise her child according to her values and beliefs.” (Id. at 7). The 7 fifth cause of action is a due process claim for failure “to provide Plaintiff with full access 8 to the information related to her child’s case.” (Id. at 8). 9 II. LEGAL STANDARD 10 Under 28 U.S.C. § 1915(e)(2), the Court must screen an IFP complaint and dismiss 11 the case if, at any time, it determines that the action is frivolous or malicious, fails to state 12 a claim on which relief may be granted, or seeks monetary relief against a defendant who 13 is immune from such relief. See Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (per 14 curiam) (confirming § 1915(e)(2)(B) applies to non-prisoners as well). A complaint “is 15 frivolous where it lacks an arguable basis either in law or in fact” and malicious where “it 16 was filed with the intention or desire to harm another.” Neitzke v. Williams, 490 U.S. 319, 17 325 (1989); Andrews v. King, 398 F.3d 1113, 1121 (9th Cir. 2005) (citation modified). 18 “The standard for determining whether a plaintiff has failed to state a claim upon which 19 relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of Civil 20 Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 1108, 21 1112 (9th Cir. 2012). Accordingly, “a complaint must contain sufficient factual matter, 22 accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 23 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). 24 In reviewing the plausibility of a complaint on a motion to dismiss, a court must “accept 25 factual allegations in the complaint as true and construe the pleadings in the light most 26 favorable to the nonmoving party.” Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 27 1025, 1031 (9th Cir. 2008). However, “[t]hreadbare recitals of the elements of a cause of 28 action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. 1 Finally, dismissal is warranted when the plaintiff seeks monetary relief against an immune 2 defendant, as long as the court “has sufficient information to make a determination on 3 immunity.” Chavez v. Robinson, 817 F.3d 1162, 1167 (9th Cir. 2016). 4 III. DISCUSSION 5 The Court examines each cause of action to determine whether it is frivolous or 6 malicious, fails to state a claim on which relief may be granted, or seeks monetary relief 7 against a defendant with immunity from such relief. 8 A. Constitutional Claims 9 Plaintiff’s first, fourth, and fifth causes of action are constitutional claims brought 10 against Defendant in her official and individual capacities under § 1983. (SAC 6–8). A 11 claim for damages brought “against a state official in his or her official capacity . . . is no 12 different from a suit against the State itself.” Flint v. Dennison, 488 F.3d 816, 824–25 (9th 13 Cir. 2007) (quoting Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989)). As States 14 are not “persons” subject to suit under § 1983, Plaintiff’s official-capacity claims fail as a 15 matter of law. Peter-Palican v. Gov’t of N. Mar. I., 695 F.3d 918, 919 n.1 (9th Cir. 2012).1 16 Although Ex parte Young “authorizes suits against state officials in their official capacities 17 for injunctive relief addressing ongoing violations of federal law . . . [,] ‘an injunction 18 against a state court would be a violation of the whole scheme of our government.’” 19 D’Souza v. Guerrero, No. 24-2537, 2025 WL 636706, at *2 (9th Cir. Feb. 27, 2025) 20 (quoting Ex parte Young, 209 U.S. 123, 163 (1908)). Plaintiff’s request for an order 21 22 23 1 Although Plaintiff alleges Defendant is “employed by the San Diego County,” Family Court Services is a program of the San Diego Superior Court, which is an arm of the State for Eleventh Amendment 24 purposes. (SAC 2; see ECF No. 4 at 3); Simmons v. Sacramento Cnty. Superior Ct., 318 F.3d 1156, 1161 25 (9th Cir. 2003); see Cal. Fam. Code § 3160 (West 2026) (“Each superior court shall make a mediator available.”). Even accepting Plaintiff’s characterization, in an official-capacity suit against a municipal 26 employee “the entity’s ‘policy or custom’ must have played a part in the violation of federal law.” Kentucky v. Graham, 473 U.S. 159, 166 (1985) (citing Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691 27 (1978)); see Lockett v. County of Los Angeles, 977 F.3d 737, 741 (9th Cir. 2020) (listing the elements of a Monell claim). Here, Plaintiff has not alleged the existence of a policy or custom that would enable her 28 1 “compelling Defendant to review and correct her conduct in future custody mediations” 2 would “effectively requir[e] state courts to adjudicate cases in specific ways, contrary to 3 Young and Whole Woman’s Health.” Id. (citing Whole Woman’s Health v. Jackson, 595 4 U.S. 30, 39 (2021)). Furthermore, Plaintiff’s individual-capacity theory fails because 5 Defendant is shielded by quasi-judicial immunity. This immunity extends to individuals 6 who perform “functions that are judicial in nature, or who have a sufficiently close nexus 7 to the adjudicative process.” In re Castillo, 297 F.3d 940, 948 (9th Cir. 2002); Ashelman 8 v. Pope, 793 F.2d 1072, 1075 (9th Cir. 1986) (“Judicial immunity applies however 9 erroneous the act may have been, and however injurious in its consequences it may have 10 proved to the plaintiff.” (citation modified)). Here, all of the acts Plaintiff challenges were 11 undertaken by Defendant in the custody dispute process, culminating in a recommendation 12 to the Superior Court. (SAC 3–6). Accordingly, Defendant is entitled to quasi-judicial 13 immunity for her alleged actions in this case. See, e.g., Hutchinson v. S.D. Superior Ct., 14 No. 19-cv-59-GPC(NLS), 2019 WL 211979, at *4 (S.D. Cal. Jan. 16, 2019) (applying 15 quasi-judicial immunity to a San Diego Superior Court Family Court Services mediator). 16 For those reasons, Plaintiff’s § 1983 claims are dismissed. 17 B. Section 11166 18 Plaintiff’s second cause of action alleges that “Defendant violated California Penal 19 Code § 11166 by failing to report suspected child abuse or investigate the allegations.” 20 (SAC 7). However, section 11166 “is a criminal statute and does not authorize a private 21 right of action.” Risley v. Church of Jesus Christ of Latter Day Saints, 823 F. Supp. 3d 22 1069, 1084 (C.D. Cal. 2026) (quoting A. H. v. W. Contra Costa Unified Sch. Dist., No. 22- 23 cv-03233-AMO, 2023 WL 6390621, at *7 (N.D. Cal. Sept. 28, 2023)); accord Brown v. 24 Dep’t of Just., No. C098572, 2024 WL 3082230, at *4 (Cal. Ct. App. June 21, 2024) 25 (unpublished). Plaintiff’s second cause of action is therefore dismissed. 26 C. Negligence and Professional Misconduct 27 Plaintiff’s third cause of action is for negligence and professional misconduct 28 alleging that Defendant failed to “properly investigate parental alienation, consider all 1 relevant evidence, and ensure the child’s best interests were protected.” (SAC 7). As with 2 federal law, California extends immunity to “nonjudicial persons who fulfill quasi-judicial 3 functions intimately related to the judicial process” including “mediators, neutral 4 factfinders, and others who function apart from the courts but are engaged in neutral dispute 5 resolution” and “individuals who serve functions integral to the judicial process and act as 6 arms of the court,” such as “therapists, evaluators, probation officers . . . , and psychiatrists 7 involved in terminating parental rights.” Vergara v. Ouse, 339 Cal. Rptr. 3d 897, 901–02 8 (Cal. Ct. App. 2025) (citation modified). Similar to federal quasi-judicial immunity, this 9 protection is absolute, applying no “matter how erroneous or even malicious or corrupt [the 10 alleged actions] may be.” Id. at 905 (emphasis omitted). As previously explained, all of 11 Defendant’s alleged wrongdoing took place as part of the custody dispute process and she 12 is therefore entitled to quasi-judicial immunity. (SAC 3–6). Accordingly, this cause of 13 action is dismissed. 14 IV. CONCLUSION AND ORDER 15 For the foregoing reasons, Plaintiff’s Second Amended Complaint does not survive 16 § 1915(e)(2) screening. “Courts should not dismiss a pro se complaint without leave to 17 amend unless it is absolutely clear that the deficiencies of the complaint could not be cured 18 by amendment.” Spencer v. City of San Diego, No. 23-cv-771-GPC-BLM, 2023 WL 19 7555311, at *3 (S.D. Cal. Nov. 14, 2023) (citation modified); Fed. R. Civ. P. 15(a) (courts 20 should “freely give leave [to amend] when justice so requires.”). Here, Plaintiff has twice 21 amended her Complaint and the identified deficiencies cannot be cured by amendment. 22 (ECF Nos. 1, 3, 7). Therefore, the SAC is DISMISSED without leave to amend. The 23 Clerk of Court is instructed to close this case.2 24 25 26 27 2 The request for judicial notice in Plaintiff’s Notice of Filing of New Evidence is DENIED AS MOOT. 28 I IT IS SO ORDERED. 2 || Dated: July 27, 2026 2» 3 porn Yn - L4\ 4 Hon. Dana M. Sabraw 5 United States District Judge 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28