United States v. 2020-11-18 | 17-56292 | PRESLIE HARDWICK V. COUNTY OF ORANGE | precedential | opinion |

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

PRESLIE HARDWICK,
Plaintiff-Appellant,

v.

COUNTY OF ORANGE; MARCIA
VREEKEN; ELAINE WILKINS; THE
ESTATE OF HELEN DWOJAK,
Defendants-Appellees.
No. 17-56292

D.C. No.
8:13-cv-01390-
JLS-AN

OPINION

Appeal from the United States District Court
for the Central District of California
Josephine L. Staton, District Judge, Presiding

Argued and Submitted April 11, 2019
Pasadena, California

Filed November 18, 2020

Before: A. Wallace Tashima and Richard A. Paez, Circuit
Judges, and William Alsup,
*
District Judge.

Opinion by Judge Paez;
Partial Concurrence by Judge Tashima

*
The Honorable William Alsup, United States District Judge for the
Northern District of California, sitting by designation.

2 HARDWICK V. COUNTY OF ORANGE

SUMMARY
**

Civil Rights

The panel affirmed the district court’s judgment that
plaintiff could not invoke issue preclusion to bar litigation in
her action against Orange County and County social workers
alleging Fourth and Fourteenth Amendment violations
arising from plaintiff’s removal from her mother’s custody.

A juvenile court ordered plaintiff’s removal in 2000, in
the midst of dependency proceedings arising from her
parents’ divorce litigation. Plaintiff’s mother brought a state
court action in 2001 against County social workers, and a
jury found that defendants violated the mother’s right to
familial association and awarded damages. Plaintiff
subsequently filed her federal action in 2013 against the
same defendants, arguing in part, that her mother’s prior
state court litigation conclusively determined that her
removal from her mother’s custody violated her right of
familial association. Plaintiff argued that defendants were
therefore precluded from relitigating the issue of liability.

The panel held that where constitutional familial rights
are at stake, there are identical companionship rights
between a parent and child that could allow a plaintiff to
invoke issue preclusion to bar relitigation of issues
previously decided. In this case, however, plaintiff could not
assert issue preclusion because her mother litigated more
than just the overlapping companionship rights in her state

**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.

HARDWICK V. COUNTY OF ORANGE 3

court case and the panel could not determine the basis for the
jury’s verdict. Plaintiff therefore failed to establish that the
issues litigated in the prior state proceeding were identical to
the issues raised in her federal case.

Concurring in part and concurring in the judgment,
Judge Tashima stated that he concurred in the judgment on
the ground that plaintiff failed to establish the application of
issue preclusion because of the special verdict’s ambiguity
in the prior case. Judge Tashima wrote, however, that the
majority engaged in an unnecessary discussion of the
contours of the familial association right, and he dissociated
himself from the majority’s assertion that a child’s
correlative right of familial association includes no custody
component.

COUNSEL

Robert R. Powell (argued), Powell & Associates, San Jose,
California; Dennis R. Ingols, Law Office of Dennis R.
Ingols, San Jose, California; for Plaintiff-Appellant.

Norman J. Watkins (argued) and Pancy Lin, Lynberg &
Watkins APC, Orange, California, for Defendants-
Appellees.

4 HARDWICK V. COUNTY OF ORANGE

OPINION
PAEZ, Circuit Judge:
In November 1999, the Orange County Social Services
Agency (“SSA”) filed a dependency petition on behalf of
Preslie Hardwick and her sister, Kendall Hardwick, against
their parents, Cary and Deanna Hardwick.
1
The juvenile
dependency court assumed jurisdiction over the children, but
the court permitted the children to remain in their mother’s
custody and to have supervised visitation with their father.
During the course of the dependency proceedings, the social
workers informed the court about missed visits and phone
calls between the children and their father. Defendant
Marcia Vreeken, a social worker, also represented to the
court that Hardwick told the children their father was trying
to take them away from her. In February 2000, the
dependency court ordered that Preslie and Kendall be
removed from Hardwick’s custody.
In 2001, Hardwick filed an action in California superior
court, asserting, among other claims, that County of Orange
(“Orange County”) social workers, including Vreeken,
Vreeken’s supervisor, Helen Dwojak, and another social
worker, Elaine Wilkens, violated her constitutional right to
familial association. Hardwick alleged that Vreeken and
Dwojak fabricated evidence and made misrepresentations to
the dependency court to obtain removal of her daughters
from her custody. Hardwick’s case proceeded to trial against
the social workers and Orange County. The jury returned

1
We refer to Deanna Hardwick as “Hardwick” throughout the
opinion.

HARDWICK V. COUNTY OF ORANGE 5

verdicts in favor of Hardwick against all defendants, except
Wilkens.
Preslie filed this federal action in 2013, alleging that
Vreeken, Dwojak, Wilkens, and Orange County violated her
Fourteenth Amendment right to familial association and her
Fourth Amendment right against wrongful seizure. In a
pretrial motion, she argued that her mother’s prior state
litigation conclusively determined that her removal from her
mother’s custody violated her right of familial association.
She argued that Defendants Vreeken, Dwojak, and Orange
County were precluded from relitigating the issue of
liability.
The sole issue presented for review is whether the district
court properly concluded that Preslie could not invoke
collateral estoppel, which is also referred to as issue
preclusion, because the rights at issue in Hardwick’s state
case and Preslie’s federal case were not identical.
2
We have
jurisdiction under 28 U.S.C. § 1291 and we affirm. We hold
that where constitutional familial rights are at stake, there are
identical companionship rights between a parent and child
that could allow a plaintiff to invoke issue preclusion to bar
relitigation of issues previously decided. In this case,
however, Preslie cannot assert issue preclusion because
Hardwick litigated more than just the overlapping
companionship rights in her state court case and we cannot
determine the basis for the jury’s verdict.

2
Although the district court and the parties use collateral estoppel
and issue preclusion interchangeably, we will follow the California
Supreme Court’s recent pronouncement that it will use the term “‘issue
preclusion’ to encompass the notion of collateral estoppel.” DKN
Holdings LLC v. Faerber, 352 P.3d 378, 386 (Cal. 2015); see also
NTCH-WA, Inc. v. ZTE Corp., 921 F.3d 1175, 1178 n.1 (9th Cir. 2019).

6 HARDWICK V. COUNTY OF ORANGE

I. BACKGROUND
A. Factual Background
In June 1999, in the midst of contentious custody
proceedings, six-year old Preslie and her sister, nine-year old
Kendall, were enrolled in therapy to assist with their
adjustment to their parents’ divorce and their father’s
remarriage. During the course of this therapy, Kendall
disclosed to the therapist allegations of sexual abuse by her
father. The therapist reported the allegations to child
protective services and, in November 1999, the SSA filed a
dependency petition on behalf of Preslie and Kendall.
3
The
juvenile dependency court assumed jurisdiction over the
children, but the children remained in Hardwick’s custody
and had supervised visitation with their father.
In December 1999, county social worker Rachel Davis
filed a comprehensive report with the dependency court.
The report recommended that the children remain in their
mother’s home under the supervision of the SSA and
contingent upon Hardwick’s full cooperation with a family
case plan. The report also recommended weekly monitored
visits between the children and their father. In January 2000,
social worker Vreeken assumed responsibility for the
Hardwick case.
At a court hearing in early February 2000, the
dependency court learned of failed visits and phone calls
between the children and their father. The court admonished
Hardwick that if she did not comply with the visitation and

3
The petition alleged that Cary Hardwick sexually abused his
daughter Kendall and that her parents “knew or reasonably should have
known the child was at risk of harm and . . . failed to protect.”

HARDWICK V. COUNTY OF ORANGE 7

phone call schedule, the court would likely remove the
children from her care. After another missed visit and after
Vreeken represented to the court that Hardwick, in
Wilkens’s presence, told her daughters that their father was
trying to take them away from her, the court ordered the SSA
to remove the children from Hardwick’s care.
4
Preslie
contends that Vreeken and Dwojak made misrepresentations
to the dependency court and repeatedly suppressed evidence
throughout the dependency proceedings, despite their
knowledge that Hardwick was a fit parent.
As ordered by the dependency court, Preslie and Kendall
were promptly removed from Hardwick’s custody. They
were initially placed in a temporary children’s shelter and
then into a foster home. Eventually, in May 2000, Preslie
and Kendall were placed in their father’s custody while their
mother was allowed supervised visitation. The dependency
court ultimately terminated the dependency case and the
custody dispute continued in family court.
B. Hardwick’s State Court Case
In February 2001, Hardwick filed suit in California
superior court against various defendants, including
Vreeken, Dwojak, Wilkens, and Orange County. She sought
damages and injunctive relief. Hardwick alleged, inter alia,
that Vreeken and Dwojok’s actions deprived her of her
Fourteenth Amendment right to familial association with her

4
Although Wilkens was named as a defendant in both Hardwick’s
state case and in this case, Preslie did not seek to apply issue preclusion
against Wilkens, as the state court jury returned a verdict in favor of
Wilkens on all of Hardwick’s claims. Accordingly, Preslie’s claim
against Wilkens is not at issue in this appeal.

8 HARDWICK V. COUNTY OF ORANGE

children. She also alleged that Orange County failed to
supervise and train its SSA social workers.
The state case proceeded to a jury trial. When instructing
the jury on Hardwick’s constitutional claim, among other
matters, the court instructed the jury that Hardwick had to
prove “[t]hat defendant’s conduct violated [Hardwick’s]
right of familial association including her right to the care
and custody of her two minor children, Kendall and Preslie;
or violated her right to privacy.”
5
T hrough a series of special
verdicts, the jury found that Vreeken and Dwojak
“intentionally violate[d] the plaintiff’s right to familial
association or right to privacy.” The jury also found that
Orange County provided inadequate training or supervision
to its employees and that its failure to do so was “the cause
of the deprivation of [Hardwick’s] right of familial
association.” The jury awarded Hardwick monetary
damages. The court also entered a permanent injunction
enjoining certain practices of SSA social workers when
pursuing dependency proceedings. The California Court of
Appeal affirmed the judgment, except for the trial court’s
award of injunctive relief.
6

5
The court also instructed the jury on the other elements of
Hardwick’s claim. Specifically, the court instructed the jury that
Hardwick needed to prove that the social workers “intentionally removed
and/or caused the removal and/or detention of” Hardwick’s children, “or
otherwise interfered with her rights as a parent;” that the social workers
“act[ed] or purport[ed] to act in the performance of [their] official
duties;” that Hardwick “was harmed;” and that the social workers’
“conduct was a substantial factor in” the harm.
6
The California Court of Appeal took issue with the injunctive relief
granted by the trial court. The injunction permanently restrained Orange
County and SSA employees from (1) including allegations in a juvenile
dependency petition without reasonable suspicion of abuse, neglect or

HARDWICK V. COUNTY OF ORANGE 9

C. Preslie’s Federal Action
Preslie, after obtaining the age of majority, filed this
action in September 2013 against various defendants
including Orange County, Vreeken, Dwojak, and Wilkens.
Preslie alleged that the individual defendants violated her
right to be free from unreasonable seizure under the Fourth
Amendment and her right to familial association under the
Fourteenth Amendment when they caused her removal from
her mother’s custody without proper or just cause. More
specifically, Preslie alleged that the defendant social workers
violated her familial associational rights by “unlawfully
removing her from the custody and care of her mother and
continuing to detain her despite [their] knowledge that she
was removed and detained based on Defendants’ lies,
suppressions, and fabrications.” She also brought a Monell
claim against Orange County, alleging that the County
established and/or followed policies that were the moving
force behind the violations of her constitutional rights. See
Monell v. Dep’t of Soc. Servs. 436 U.S. 658 (1978).
In a pretrial motion under Federal Rule of Civil
Procedure 56(a), Preslie sought summary adjudication of the
defendants’ liability on her familial association and Monell
claims. She argued that, in light of the verdicts and judgment
in Hardwick’s state case, her removal from her mother’s
custody violated her constitutional right of familial
association and that any defenses Vreeken, Dwojak, and
Orange County raised or could have “raised in prior

abandonment and (2) requiring parents or guardians to sign a temporary
release of confidential information without reasonable suspicion. See
Fogarty-Hardwick v. Cnty. of Orange, No. G039045, 2010 WL
2354383, at *19–20 (Cal. Ct. App. June 14, 2010). The court struck the
injunctive relief from the judgment but affirmed the judgment in all other
respects.

10 HARDWICK V. COUNTY OF ORANGE

litigation, have already been conclusively determined in
prior litigation.” Defendants filed a cross-motion for
summary judgment asserting that the claims against the
individual defendants were barred by qualified immunity,
absolute immunity, or were without merit. They also argued
that Preslie’s Monell municipal liability claim against
Orange County was meritless.
In April 2015, the district court granted in part and
denied in part the summary judgment and summary
adjudication motions. The court rejected Preslie’s claim that
Vreeken, Dwojak, and Orange County were “collaterally
estopped from litigating the issue of liability” and denied her
motion. The district court granted summary judgment in
favor of Orange County on Preslie’s Monell claim but
rejected the defendant social workers’ claim that they were
entitled to absolute or qualified immunity.
7

The remaining claims were tried before a jury. The jury
ultimately returned a verdict in favor of Vreeken and
Dwojak. Preslie timely appealed. On appeal, Preslie only
challenges the district court’s ruling that she could not
invoke the judgment in Hardwick’s case to bar Vreeken,
Dwojak, and Orange County from relitigating their liability
on Preslie’s familial association and Monell claims.

7
The defendant social workers filed an interlocutory appeal
challenging the denial of their qualified immunity defenses. See
Hardwick v. Cnty. of Orange, 844 F.3d 1112, 1114 (9th Cir. 2017). In
support of their immunity defense, the defendant social workers argued
that Preslie’s constitutional right to be free from deliberately fabricated
evidence had not yet been clearly established in the civil proceeding
context. Id. at 1116–17. We disagreed and affirmed the district court’s
order denying absolute or qualified immunity. Id. at 1116.

HARDWICK V. COUNTY OF ORANGE 11

II. STANDARD OF REVIEW
We review de novo “a district court’s summary
[adjudication]” and “whether issue preclusion is available.”
Sec. & Exch. Comm’n v. Stein, 906 F.3d 823, 828 (9th Cir.
2018). “If issue preclusion is available, the district court’s
decision to apply the doctrine is reviewed for abuse of
discretion.” Id.
III. DISCUSSION
A. Issue Preclusion
This appeal turns on whether the district court properly
concluded that Preslie could not invoke issue preclusion in
her federal case. “[A] federal court considering whether to
apply issue preclusion based on a prior state court judgment
must look to state preclusion law.” McInnes v. California.,
943 F.2d 1088, 1092–93 (9th Cir. 1991).
In California, “[i]ssue preclusion prohibits the
relitigation of issues argued and decided in a previous case,
even if the second suit raises different causes of action.”

DKN Holdings LLC v. Faerber, 352 P.3d 378, 386 (Cal.
2015). Issue preclusion “prevents a party from obtaining a
second adjudication of an issue that has already been
adjudicated against that party on the merits by a court of
competent jurisdiction.” Pajaro Valley Water Mgmt.
Agency v. McGrath, 27 Cal. Rptr. 3d 741, 745 (Ct. App.
2005). Issue preclusion applies: “(1) after final adjudication
(2) of an identical issue (3) actually litigated and necessarily
decided in the first suit and (4) asserted against one who was
a party in the first suit or one in privity with that party.” DKN
Holdings, 352 P.3d at 387. “The party asserting collateral
estoppel [issue preclusion] bears the burden of establishing
these requirements.” Lucido v. Superior Court, 795 P.2d

12 HARDWICK V. COUNTY OF ORANGE

1223, 1225 (Cal. 1990). “The ‘identical issue’ requirement
addresses whether ‘identical factual allegations’ are at stake
in the two proceedings, not whether the ultimate issues or
dispositions are the same.”

8
Id.; see also Key v. Tyler,
246 Cal. Rptr. 3d 224, 248 (Ct. App. 2019).
Preslie argues that given the nature of Hardwick’s
successful lawsuit against the same defendants, the district
court erred in refusing to bar Vreeken, Dwojak, and Orange
County from relitigating their liability in this case. As we
explain, Preslie misperceives the extent of her constitutional
right of familial association and she disregards the ambiguity
of the state court jury’s special verdicts. We address the
claims against the individual defendants first and then turn
to the Monell claims against Orange County.
B. Vreeken and Dwojak
“Parents and children have a well-elaborated
constitutional right to live together without governmental
interference.” Wallis v. Spencer, 202 F.3d 1126, 1136 (9th
Cir. 2000). “That right is an essential liberty interest
protected by the Fourteenth Amendment’s guarantee that
parents and children will not be separated by the state
without due process of law except in an emergency.”
9
Id.

8
The parties dispute whether the issues in Preslie’s federal case are
identical to those in Hardwick’s state case, but they do not dispute
whether any of the other elements of issue preclusion are satisfied. Thus,
this appeal turns on whether the issues in the two proceedings are
identical.
9
“Courts have characterized the right to familial association as
having both a substantive and a procedural component.” Keates v. Koile,
883 F.3d 1228, 1236 (9th Cir. 2018). “While the right is a fundamental
liberty interest, officials may interfere with the right if they provide the

HARDWICK V. COUNTY OF ORANGE 13

Moreover, “the interest of parents in the care, custody, and
control of their children—is perhaps the oldest of the
fundamental liberty interests recognized by [the Supreme
Court].” Troxel v. Granville, 530 U.S. 57, 65 (2000); see
e.g., Pierce v. Soc’y of the Sisters, 268 U.S. 510, 530, 534–
35 (1925) (requiring parents to send their children to public
school “unreasonably interferes with the liberty of parents
and guardians to direct the upbringing and education of
children under their control”). Thus, parents have both a
constitutional interest in “the companionship of their
children” and a “constitutionally protected interest in raising
their children.” Smith v. City of Fontana, 818 F.2d 1411,
1418 (9th Cir. 1987), overruled on other grounds by
Hodgers-Durgin v. de la Vina, 199 F.3d 1037 (9th Cir.
1999).
The “constitutional interest in familial companionship
and society logically extends to protect children from
unwarranted state interference with their relationships with
their parents.” Id. at 1418. “The companionship and
nurturing interests of parent and child in maintaining a tight
familial bond are reciprocal” and the distinction “between
the parent-child and the child-parent relationships does not
. . . justify constitutional protection for one but not the
other.” Id. at 1418–19. There is “no reason to accord less
constitutional value to the child-parent relationship than . . .
to the parent-child relationship.” Id. at 1418. Therefore, “a
child’s interest in her relationship with a parent is
sufficiently weighty by itself to constitute a cognizable
liberty interest.” Id. at 1419. Yet, “[w]hen . . . a child claims
constitutional protection for her relationship with a parent,

parents with fundamentally fair procedures.” Id. (internal quotation
marks and citations omitted).

14 HARDWICK V. COUNTY OF ORANGE

there is no custodial interest implicated, but only a
companionship interest.” Id.
Parental claims that their children were unlawfully
removed from their custody “should properly be assessed
under the Fourteenth Amendment standard for interference
with the right to family association.”
10
Wallis, 202 F.3d
at 1137 n.8. However, we “evaluate the claims of children
who are taken into state custody under the Fourth
Amendment right to be free from unreasonable seizures
rather than the Fourteenth Amendment right to familial
association.” Keates, 883 F.3d at 1235 (internal quotation
marks omitted). “Despite the different constitutional source
of the right, . . . ‘the same legal standard applies in
evaluating Fourth and Fourteenth Amendment claims for the
removal of children.’” Id. (quoting Wallis, 202 F.3d at 1137
n.8.).
Preslie argues that her familial association claim against
Vreeken and Dwojak is identical to the familial association
claim that her mother successfully litigated in state court.
11

10
Although not at issue in this case, we recognize that the First
Amendment also protects “those relationships, including family
relationships, that presuppose deep attachments and commitments to the
necessarily few other individuals with whom one shares not only a
special community of thoughts, experiences, and beliefs but also
distinctively personal aspects of one’s life.” Bd. of Dirs. of Rotary Int’l
v. Rotary Club of Duarte, 481 U.S. 537, 545 (1987) (internal quotation
marks and citation omitted). Accordingly, we have recognized claims
“under both the First and Fourteenth Amendment for unwarranted
interference with the right to familial association.” Keates, 883 F.3d
at 1236.
11
On appeal, Preslie characterizes her familial association claim as
a violation of her Fourteenth Amendment rights. In her complaint,
however, she alleged violations of both the Fourth and Fourteenth

HARDWICK V. COUNTY OF ORANGE 15

She contends that “familial association rights are reciprocal,
and that a violation to the parent’s constitutional rights
necessarily violates the constitutional rights of the child.”

We agree that a parent’s right to associate with her child
can overlap with the child’s right to associate with her
parent. Companionship rights, for example, are overlapping.
See City of Fontana, 818 F.2d at 1419 (“[W]hen a child
claims constitutional protection for her relationship with a
parent, there is no custodial interest implicated, but only a
companionship interest.”). Thus, in some instances, the
violation of a parent’s constitutional right to associate with
her child necessarily violates the child’s constitutional right
to associate with her parent.
Hardwick’s state case, however, concerned more than
just her right to companionship with Preslie. In Hardwick’s
state case, the court instructed the jury that to establish her
claim, Hardwick had to prove that Vreeken violated her
“right of familial association including her right to the care
and custody of her two minor children . . . or violated her
right of privacy.” The jury verdict forms in the state case
asked jurors whether Vreeken or Dwojak “intentionally
violate[d] the plaintiff’s right to familial association or right
to privacy.” In contrast, in Preslie’s federal case, the district
court instructed the jury that Preslie had to prove that—but
for Vreeken’s dishonesty—“there would not have been the
juvenile court order removing the plaintiff from her mother’s
custody.”

Amendments. Regardless, as discussed above, the same legal standard
applies when evaluating familial association claims under the Fourth or
Fourteenth Amendments. See Keates, 883 F.3d at 1235.

16 HARDWICK V. COUNTY OF ORANGE

Given that Hardwick’s state jury returned special
verdicts finding that Vreeken and Dwojak violated her right
to familial association or her right to privacy, we cannot
conclude that the jury actually decided that Hardwick’s right
to familial association was violated. Therefore, the district
court did not err in concluding that the issues litigated in
Hardwick’s state case and Preslie’s federal case were not
identical. Without identical issues, Preslie could not invoke
issue preclusion to bar relitigation. See Shopoff & Cavallo
LLP v. Hyon, 85 Cal. Rptr. 3d 268, 294 (Ct. App. 2008) (“If
anything is left to conjecture as to what was necessarily
involved and decided there can be no collateral estoppel . . . .
[I]t must appear . . . that the precise question was raised and
determined in the former suit.”) (internal quotation marks
and citations omitted). We affirm the district court’s
summary adjudication order holding that Vreeken and
Dwojak were not precluded from litigating their liability on
Preslie’s familial association claim.
C. Orange County
Counties “can be sued directly under § 1983 for
monetary, declaratory, or injunctive relief where . . . the
action that is alleged to be unconstitutional implements or
executes a policy statement, ordinance, regulation, or
decision officially adopted and promulgated by that
[county’s] officers.” Monell, 436 U.S. at 690. Preslie argues
that Orange County is precluded from relitigating its liability
on her claim that the county’s policies and customs were the
moving force behind the violation of her right to familial
association. She argues that the jury’s findings in
Hardwick’s state case are binding in her federal case.
We disagree. The jury concluded that Orange County’s
failure to train and/or supervise adequately its employees
was the cause of the deprivation of Hardwick’s right to

HARDWICK V. COUNTY OF ORANGE 17

familial association and was a substantial factor in causing
harm to Hardwick. Yet, as discussed above, Hardwick’s
constitutional rights, as litigated in her state case, were not
identical to Preslie’s right to familial association as litigated
in her federal case.
12
Thus, we agree with the district court
that “the ‘precise question’ presented [] against the County
was not ‘raised and determined in the former suit.’” (quoting
Shopoff, 85 Cal. Rptr. 3d at 294). We therefore affirm the
district court’s ruling that Preslie could not rely on issue
preclusion to bar Orange County from relitigating its liability
under Monell.
13

IV. CONCLUSION
We have long held that children have a constitutional
interest in familial companionship. City of Fontana,
818 F.2d at 1418. As our case law recognizes, the
companionship rights between a parent and a child are
identical such that a plaintiff could invoke issue preclusion
to bar litigation in the appropriate case. Nonetheless, we
agree with the district court that Preslie cannot do so here

12
As we stated with respect to individual defendants Vreeken and
Dwojak in Part III.B, above, “Hardwick’s state case, however, concerned
more than just her right to companionship with Preslie. In Hardwick’s
state case, the court instructed the jury that to establish her claim,
Hardwick had to prove that Vreeken violated her ‘right of familial
association including her right to the care and custody of her two minor
children . . . or violated her right of privacy.’”
13
Preslie concedes that her municipal liability argument turns on
whether the district court erred when it determined that issue preclusion
did not bar Orange County from litigating Preslie’s Monell claim. She
does not argue that even if the district court did not err in denying her
summary adjudication motion, it erred when it granted the County’s
summary judgment motion on Preslie’s Monell claim. Thus, we do not
address the underlying merits of Preslie’s Monell claim.

18 HARDWICK V. COUNTY OF ORANGE

because she failed to establish that the issues litigated in the
prior state proceeding were identical to the issues raised in
her federal case.
AFFIRMED.

TASHIMA, Circuit Judge, concurring in part and concurring
in the judgment:
I concur in the majority’s affirmance of the district
court’s order declining to apply issue preclusion in Plaintiff
Preslie Hardwick’s favor on the ground that the state
superior court’s jury instruction contained the seed of
ambiguity when the earlier state-court jury was instructed
“that Hardwick had to prove ‘[t]hat defendant’s conduct
violated [Hardwick’s] right of familial association including
her right to the care and custody of her two minor children
. . . or violated her right to privacy.’” Maj. Op. at 8
(emphasis added). The majority rightly concludes that
because the “state jury returned special verdicts finding that
[defendants] violated her right to familial association or her
right to privacy, we cannot conclude that the jury actually
decided that Hardwick’s right to familial association was
violated.” Id. at 16. Thus, because the issues in the state and
federal cases were not identical, issue preclusion to bar
relitigation does not apply. “If anything is left to conjecture
as to what was necessarily involved and decided” in the
earlier case, issue preclusion does not apply.” Shopoff &
Cavallo LLP v, Hyon, 85 Cal. Rptr 3d 268, 294 (Ct. App.
2008).
The above brief discussion of the consequences of an
ambiguous jury instruction/special verdict largely tracks the
majority’s own reasoning. Because plaintiff failed to meet

HARDWICK V. COUNTY OF ORANGE 19

the “identical issue” test, issue preclusion does not apply,
and that should end the majority’s analysis.
The majority opinion, however, contains an extended
and unnecessary discussion of the contours of the familial
association right, see Maj. Op. at 13–16, which includes an
unfortunate snippet from Smith v. City of Fontana, 818 F.2d
1411, 1419 (9th Cir. 1987), that “when a child claims
constitutional protection for her relationship with a parent,
there is no custodial interest implicated, but only a
companionship interest.” Maj. Op. at 15. But this snippet is
no more than a throw-away line, made without any analysis
and, as important, without the citation of any state
1
or federal
case in support of the proposition. It does not deserve
deference as binding precedent. See, e.g., Barapind v.
Enomoto, 400 F.3d 744, 750–51 (9th Cir. 2005) (en banc).
In fact, California case law clearly demonstrates that a
child has a separate, correlative interest in her own custody.
For example, in Kern Cty. Dep’t of Hum. Servs. v. Debbie H.
(In re Marilyn H.), 851 P2d 826 (Cal. 1993), the California
Supreme Court stated:
The federal and state Constitutions guarantee
that no state shall deprive any person of life,
liberty or property without due process of
law. A parent’s interest in the
companionship, care, custody and

1
It is, of course, state law that creates and gives rise to liberty and
property interests protected by the Constitution. “Like property rights,
liberty interests can be defined by state law. ‘States may under certain
circumstances create liberty interests which are protected by the Due
Process Clause.’” Marsh v. County of San Diego, 680 F.3d 1148, 1155
(9th Cir. 2012) (quoting Sandin v. Conner, 515 U.S. 472, 483–84
(1995)).

20 HARDWICK V. COUNTY OF ORANGE

management of his children is a compelling
one, ranked among the most basic of civil
rights. Likewise, natural children have a
fundamental independent interest in
belonging to a family unit, and they have
compelling rights to be protected from abuse
and neglect and to have a placement that is
stable, permanent, and that which allows the
caretaker to make a full emotional
commitment to the child. The interests of the
parent and child, therefore, must be balanced.
Id. at 833 (emphasis added).
In San Diego Cty. Dep’t of Soc. Servs. v. Gavin O. (In re
Jasmon O.), 878 P.2d 1297 (Cal. 1994), the California
Supreme Court similarly stated that the parent’s
“fundamental right to maintain the parent-child bond and to
the care, custody and companionship of his or her child” is
“not absolute and may be abridged when necessary to do so
to protect the welfare of the child.” Id. at 1307. “Children
are not simply chattels belonging to the parent, but have
fundamental interests of their own that may diverge from the
interests of the parent.” Id. (emphasis added). The
overarching purpose of California’s child custody law is “the
best interest of the child.” See Montenegro v. Diaz, 27 P.3d
289, 293 (Cal. 2001) (“Under California’s statutory scheme
governing child custody and visitation determinations, the
overarching concern is the best interest of the child.”); see
also Cal. Fam. Code § 3041(a) (“Before making an order
granting custody to a person other than a parent, over the
objection of a parent, the court shall make a finding that
granting custody to a parent would be detrimental to the
child and that granting custody to the nonparent is required
to serve the best interest of the child.”). Embedded in that

HARDWICK V. COUNTY OF ORANGE 21

purpose is the notion that a child’s custody interest is
separate from her parents’ right and may even override the
latters’ right.
In light of the clarity and consistency of California case
law, it is likely that Smith’s drive-by dictum wrongly
construed California law. But we need not reach the issue in
this case because plaintiff’s failure to meet the “identical
issue” requirement precludes the application of issue
preclusion. Thus, any discussion of what separate right or
interest a child has to her own custody is purely obiter
dictum and we should not unquestioningly follow Smith.
Thus, while I concur in the judgment on the ground that
plaintiff has failed to establish the application of issue
preclusion because of the special verdict’s ambiguity, I
dissociate myself from the majority’s assertion that a child’s
correlative right of familial association includes no custody
component. I would leave that decision for another day.
With this qualification, I concur in the judgment.