[00:00:02] Speaker 03:
Morning, counsel.

[00:00:05] Speaker 01:
Good morning, your honors.

[00:00:06] Speaker 01:
May it please the court?

[00:00:08] Speaker 01:
I'm Janet Gustorf for the appellant and plaintiff, Mr. Augusto.

[00:00:12] Speaker 01:
And I'd like to reserve four minutes of my time, please, for rebuttal.

[00:00:18] Speaker 01:
I think everybody here agrees that the facts of this case are just horrendous and tragic.

[00:00:24] Speaker 01:
And the tragedy here was compounded by the fact that my client

[00:00:31] Speaker 01:
was deprived his day in court because of three legal errors primarily that the court made.

[00:00:39] Speaker 01:
The court erred in finding that the social worker had a mandatory duty.

[00:00:45] Speaker 01:
Sorry, did not have a mandatory reporting duty under the facts.

[00:00:52] Speaker 01:
The court also erred in implying a subjective standard in making that determination.

[00:00:59] Speaker 01:
And the court finally erred in finding that the Mandatory Reporting Act didn't prohibit the social worker from both making the determination of whether to report and investigating it on the spot.

[00:01:17] Speaker 01:
That is something that the BH case prevents.

[00:01:20] Speaker 01:
Here the court below

[00:01:25] Speaker 01:
correctly assessed that the meeting on August 15th began in the course and scope of the existing investigation.

[00:01:34] Speaker 01:
But the court didn't take that next step to apply the fact that during that meeting, there was evidence of a new incident of abuse or neglect.

[00:01:49] Speaker 01:
One that would have required a reasonable person under the same circumstances to make a report.

[00:01:58] Speaker 03:
So, Counselor, you're referring to the fact that the social worker asked the mother whether or not she smelled alcohol on her breath?

[00:02:07] Speaker 03:
Is that what you're referring to?

[00:02:08] Speaker 01:
That is one of the facts.

[00:02:10] Speaker 03:
What else?

[00:02:11] Speaker 03:
What else was there?

[00:02:12] Speaker 03:
Well, in the meeting, during the meeting where

[00:02:17] Speaker 03:
I think the argument is made that the mandatory reporting duty was triggered, correct?

[00:02:24] Speaker 03:
Correct.

[00:02:24] Speaker 03:
OK, so the one thing was the social worker asked the mother if she smelled alcohol on her.

[00:02:31] Speaker 03:
And what else would have triggered the mandatory reporting duty?

[00:02:34] Speaker 01:
Well, at that very meeting, we know that Mozzarella was actually under the influence of alcohol.

[00:02:41] Speaker 03:
Well, we know that now, but the social worker didn't know that at the time.

[00:02:45] Speaker 01:
Right.

[00:02:46] Speaker 03:
So we're talking about what would have triggered the mandatory reporting duty at the time of the meeting.

[00:02:53] Speaker 01:
I understand what Your Honor is saying, but we're not

[00:02:56] Speaker 01:
The law doesn't focus just on what she knew and what she believed.

[00:03:01] Speaker 01:
It is also what a reasonable person under the circumstances would.

[00:03:05] Speaker 01:
What a reasonable person.

[00:03:05] Speaker 04:
This is a meeting in the parking lot, right?

[00:03:07] Speaker 01:
Yes.

[00:03:08] Speaker 04:
After work, and she's covered with, she was working as a cook.

[00:03:12] Speaker 04:
She had apparently soiled clothing from work, and she said, no, it's soy sauce.

[00:03:17] Speaker 04:
So what would a reasonable person, that's Judge Rollinson's question.

[00:03:22] Speaker 04:
What other circumstances was she overlooking that would have triggered a duty?

[00:03:26] Speaker 01:
Well, there is, I mean, the fact that she was a trained social worker that was aware of a history and... A reasonable third person that we're plopping into this hypothetical, yes.

[00:03:40] Speaker 04:
Yes, but... So objectively, what did she miss?

[00:03:43] Speaker 01:
Objectively, this is a woman who is two hours late to the meeting that refused to have the social worker meet her at her place of work.

[00:03:55] Speaker 01:
that didn't explain why she was late, that told her a lie that even Lee documented in her paperwork.

[00:04:02] Speaker 04:
Was there a lie that those social workers should have recognized that night?

[00:04:06] Speaker 01:
Yes, because the lie was recognized prior to that.

[00:04:10] Speaker 04:
What lie?

[00:04:11] Speaker 01:
That she couldn't call her back because her phone was annihilated.

[00:04:15] Speaker 03:
She noted, Social Worker Lee noted that in her case notes that... That would trigger a mandatory reporting duty about the phone and being late to the meeting.

[00:04:27] Speaker 01:
It would trigger a reasonable social worker with the training that deals with addicts and abuses in a house.

[00:04:34] Speaker 04:
You have a reasonable basis to understand that this child is in danger, right?

[00:04:38] Speaker 04:
There's a risk to the child, right?

[00:04:39] Speaker 04:
Yes.

[00:04:39] Speaker 04:
So what are the circumstances that night in the parking lot that this woman phoned her?

[00:04:45] Speaker 01:
She arrived drunk.

[00:04:49] Speaker 01:
I mean, I get that the social worker did not pick that up, but she did.

[00:04:53] Speaker 01:
She smelled alcohol.

[00:04:55] Speaker 01:
End of story.

[00:04:56] Speaker 01:
She investigated that smell by asking Mozzarella, what is that?

[00:05:03] Speaker 01:
Do I smell alcohol?

[00:05:04] Speaker 01:
And Mozzarella said, no, it's soy sauce, which is absurd.

[00:05:13] Speaker 00:
whether it's the end of the story depends on we're applying California law.

[00:05:17] Speaker 00:
And my reading of the cases at least initially suggests that you need, I mean, this is a criminal law, right?

[00:05:26] Speaker 00:
So maybe the burden of proof does some work here, but this is a criminal law.

[00:05:31] Speaker 00:
And the California courts were obligated to follow seemed to require

[00:05:36] Speaker 00:
direct knowledge of the harm, right?

[00:05:39] Speaker 00:
So there are cases in which it says it's not enough for, you know, students to be suspicious and telling the teacher that the mandatory reporter has to witness the thing leading to the new harm that's being investigated.

[00:05:57] Speaker 00:
How do you respond to those cases?

[00:06:00] Speaker 00:
I'm thinking about the couple of Doe cases, Lawndale, Oceanside, dealing with sexual abuse.

[00:06:07] Speaker 01:
Well, this was an observation of a mother under the influence who was literally driving her child away while under the influence.

[00:06:16] Speaker 01:
That would, assuming

[00:06:18] Speaker 01:
that she recognized that and assuming this court agrees that everybody was clear that she was under the influence and then drove away from the meeting, there's no question that would be a new incidence.

[00:06:30] Speaker 00:
Right, that's a separate question.

[00:06:32] Speaker 00:
I assume that I'm with you on the first question in terms of that there was a mandatory duty to report the new ones under the BH case.

[00:06:39] Speaker 00:
But the state courts seem to draw a pretty high standard for what a reasonable person, even a trained reasonable person, would need to notice to have this mandatory reporting duty under pain of criminal liability.

[00:06:59] Speaker 01:
Well, I think there's language at BH that I think is crucial.

[00:07:04] Speaker 00:
Actually talks about a reasonable suspicion and actually the penal code section itself also uses Oh, I get the reasonable suspicion, but but that's not those aren't our words and that's not for us to develop Doctrine around it's for the California courts and the California courts have told us that

[00:07:22] Speaker 00:
as I read the cases, that in order to establish a reasonable suspicion, it usually requires witnessing the abuse.

[00:07:31] Speaker 00:
And what makes this case hard is you're saying, well, Ms.

[00:07:36] Speaker 00:
Lee, the abuse should have been baked in because part of that reasonable suspicion was that she was under the influence and driving the child.

[00:07:45] Speaker 00:
but she didn't observe directly driving under the influence with the child.

[00:07:52] Speaker 01:
Well, she did.

[00:07:53] Speaker 00:
She witnessed... Only if she had... But no, there's an extra step there, right?

[00:07:59] Speaker 00:
And that's what's giving us the problem.

[00:08:01] Speaker 00:
She had to have had a reasonable suspicion under this test that she was under the influence.

[00:08:07] Speaker 01:
She would have had to... A reasonable person would have had to have a reasonable suspicion, not her.

[00:08:13] Speaker 01:
There is nothing subjective in the law that is looking at her.

[00:08:19] Speaker 01:
Well, how does that help?

[00:08:21] Speaker 04:
We understand that, but I said we're plopping in an objective person with this social worker's training and experience and knowledge that this person had previously driven while intoxicated with her child in the car.

[00:08:36] Speaker 04:
I'm giving you all of that.

[00:08:37] Speaker 04:
Still going back to that meeting that night, and I think we're all struggling with the same thing.

[00:08:41] Speaker 04:
What what put her on notice such that his reasonable third right not not subjective objectively what put her on notice that the child was in danger All of the information she came to that meeting with about what she learned from mr. Augusto and The fact that can you be specific?

[00:09:01] Speaker 04:
He had said that she's an addict that she has this history.

[00:09:03] Speaker 04:
I think the social worker knew that right?

[00:09:06] Speaker 01:
Yes, and yes, absolutely and what else well

[00:09:12] Speaker 01:
During the meeting, Mozzarella admits that she's been sober for a year and a half and then says, but I drink occasionally.

[00:09:19] Speaker 01:
And she had just had a DUI a month earlier.

[00:09:22] Speaker 01:
I mean, you're either sober or you're not sober.

[00:09:25] Speaker 01:
It's kind of like the whole, you know, partially pregnant, you know, you are or you're not.

[00:09:30] Speaker 01:
So there's signs there.

[00:09:33] Speaker 01:
Mozzarella knew that, I mean, Lee knew that Mozzarella had been using illegal drugs.

[00:09:40] Speaker 01:
Um, Augusto had informed her on July 18th about that.

[00:09:44] Speaker 01:
Uh, she knew about Mozzarella's prior history of Oxycontin abuse and that she had received methadone treatment.

[00:09:52] Speaker 01:
She saw a drug test that did not test for urine and knows that the mother had an alcohol DUI, an alcohol based DUI a month prior.

[00:10:07] Speaker 01:
and just accepts that.

[00:10:08] Speaker 04:
The drug test that the mom showed, that social worker that night showed what?

[00:10:12] Speaker 01:
It showed that she was three weeks ago on one day clean of drugs.

[00:10:18] Speaker 01:
It did not test or show results for alcohol.

[00:10:24] Speaker 04:
Is your argument that that cuts one way or another?

[00:10:27] Speaker 04:
Absolutely.

[00:10:29] Speaker 01:
Why does it cut?

[00:10:32] Speaker 01:
Against mozzarella's being an honest

[00:10:34] Speaker 01:
witness of her own state at that.

[00:10:38] Speaker 03:
Why does the test cut against her honesty?

[00:10:41] Speaker 03:
I don't understand that.

[00:10:42] Speaker 01:
It's three weeks old.

[00:10:43] Speaker 01:
It's not complete, and it is being used as a current test by the social worker.

[00:10:51] Speaker 03:
If it's dated, then it's not being used as anything other than the date that's on it, correct?

[00:10:58] Speaker 01:
Yes, but there was no test, no subsequent test, because of

[00:11:04] Speaker 01:
the existence and receipt of this expired art.

[00:11:08] Speaker 01:
no longer relevant drug test.

[00:11:12] Speaker 00:
I guess you've led, and in your briefs, you're discussing a lot of federal cases.

[00:11:17] Speaker 00:
And we've got to find the controlling state case that doesn't just set the standard, BH.

[00:11:22] Speaker 00:
But what's your best California case that would suggest that the mandatory reporting duty is triggered when the mandatory reporter

[00:11:36] Speaker 00:
Should have a suspicion that right has to link a couple things together has to put the full picture together But does not actually witness any new acts of abuse Well You know BH says that the duty that

[00:11:54] Speaker 01:
to report arises not on the basis of the mandatory reporter's personal assessment of the facts known to her, but on the basis of what a reasonable person- That's restating the statutory test.

[00:12:05] Speaker 00:
Yeah.

[00:12:07] Speaker 00:
Where have the California courts applied that test in a way that wins for your client?

[00:12:16] Speaker 00:
Where there's not someone actually witnessing the conduct, because those are the only cases I've been able to find in California.

[00:12:23] Speaker 01:
I'm not trying to be difficult or evade the question.

[00:12:26] Speaker 01:
I don't have a separate case for you.

[00:12:28] Speaker 01:
But BH applies because she did witness.

[00:12:31] Speaker 01:
She didn't recognize that she was witnessing a new DUI.

[00:12:35] Speaker 01:
But she witnessed a DUI.

[00:12:37] Speaker 03:
She didn't witness a DUI.

[00:12:38] Speaker 01:
She witnessed Mozzarella drive away from the parking lot with her toddler while under the influence.

[00:12:45] Speaker 04:
So the reason you're saying that is because at some point significantly later,

[00:12:52] Speaker 04:
she testified that she had been drinking on that night, right?

[00:12:55] Speaker 03:
Yes.

[00:12:56] Speaker 04:
We're asking a different question.

[00:12:57] Speaker 04:
You just got to transport yourself back in time to that parking lot.

[00:13:01] Speaker 04:
And what should have put that social worker on notice objectively at that time?

[00:13:05] Speaker 04:
You said a minute ago that this mom had been drinking.

[00:13:08] Speaker 04:
You said, I get that the social worker missed that.

[00:13:11] Speaker 04:
I think we all understand that the social worker at best missed that.

[00:13:15] Speaker 04:
But the reason we're saying that is because of a fact that comes significantly later in the records, viewed with hindsight.

[00:13:22] Speaker 04:
This person said, oh, I had been drinking that night.

[00:13:25] Speaker 04:
The question we have to ask ourselves is, objectively, what would have put that social worker on notice that that child was in danger?

[00:13:33] Speaker 01:
The social worker smelled alcohol.

[00:13:34] Speaker 01:
I get that there was an explanation.

[00:13:37] Speaker 04:
Hold on.

[00:13:37] Speaker 04:
So she smelled alcohol, and she inquired about the alcohol.

[00:13:40] Speaker 04:
And the woman said, that's soy sauce because I've just come from my chef job.

[00:13:44] Speaker 04:
And you're, I think, to just finish your thought, you're saying that that was unreasonable for her to accept that explanation because why?

[00:13:51] Speaker 01:
She's a trained social worker that understands what she's investigating here.

[00:13:56] Speaker 01:
And this is a woman who is, frankly, mozzarella, is not remotely credible.

[00:14:01] Speaker 04:
and she shows up to our and that's why i said here's the problem the social worker also knows as of the night of that night didn't she hadn't had the social worker also talk with check with the daycare with other folks who gave really quite a positive report of how the child is doing do i have the time line corrected the social worker already know that yes the social worker knew that the the child was healthy luckily at that time no harm had actually the fallen the child but the child had already been

[00:14:29] Speaker 01:
in an accident that triggered all of this because her mom was under the influence.

[00:14:35] Speaker 01:
And then what I'm saying is that, first of all, for a trained social worker to accept a soy sauce excuse.

[00:14:41] Speaker 01:
I mean, this case is going to be known as the soy sauce excuse.

[00:14:46] Speaker 01:
So it basically immunizes a social worker for accepting at face value without any objectivity, any excuse.

[00:14:56] Speaker 04:
Can I just, is your position then that the social worker accepting that explanation is inherently, it sounds like as a matter of law, that's unreasonable is what you're telling us.

[00:15:05] Speaker 04:
Yes.

[00:15:06] Speaker 04:
I'm not trying to put words in your mouth.

[00:15:07] Speaker 04:
I am struggling to understand your position.

[00:15:09] Speaker 01:
Absolutely unreasonable.

[00:15:10] Speaker 04:
Are there other facts that we should be understanding?

[00:15:13] Speaker 04:
The social worker knew of this woman's prior history of substance abuse.

[00:15:16] Speaker 04:
Yes.

[00:15:17] Speaker 04:
She knew of the prior DUI with the child in the car.

[00:15:19] Speaker 04:
She thought she smelled alcohol or asked about it and got the soy sauce excuse.

[00:15:24] Speaker 04:
What other facts should we have on our list here?

[00:15:26] Speaker 01:
She had been evasive the entire time, so much so that the social worker started calling Ili and notes in her notes that it was because the parents were not responsive.

[00:15:39] Speaker 01:
And Ili, the babysitter, the occasional babysitter, kept saying, why don't you call the mom?

[00:15:44] Speaker 01:
Call the mom.

[00:15:45] Speaker 01:
I'm not, you know.

[00:15:47] Speaker 01:
We know that Mazzarella was avoiding her.

[00:15:54] Speaker 01:
When she shows up late to this meeting, the circumstances are very suspicious.

[00:16:00] Speaker 01:
It should be to a trained clinical social worker.

[00:16:05] Speaker 01:
And at a minimum, this should be a jury question.

[00:16:08] Speaker 01:
We're on summary judgment, and these are facts that should be construed.

[00:16:11] Speaker 00:
And I guess that's my last question, at least, is the question of summary judgment here, you've discussed the facts.

[00:16:21] Speaker 00:
Your position is you're not disputing any of these facts.

[00:16:23] Speaker 00:
The record is clear.

[00:16:25] Speaker 00:
It's just the court's application of the standard to those facts.

[00:16:29] Speaker 00:
Or are there facts that you say were improperly resolved on summary judgment?

[00:16:35] Speaker 01:
Well, the court didn't look at any of the facts of the circumstances, did not apply the correct legal standard, in my opinion, of the reasonable.

[00:16:46] Speaker 01:
The court does not discuss the reasonable person standard or discuss any of the facts that would have suggested to the clinical social worker that this person is not trustworthy and should be at least

[00:16:59] Speaker 01:
viewed with some skepticism as soon as the odor of alcohol from a known addict is being detected.

[00:17:08] Speaker 01:
Those are highly significant facts that the trial court really did not discuss.

[00:17:14] Speaker 01:
And I think it is critical.

[00:17:19] Speaker 01:
I mean, yes, Mr. Augusto's testimony was repeatedly contradicted by the social worker's testimony.

[00:17:28] Speaker 01:
conflicting evidence, but those are those are matters that I take in.

[00:17:32] Speaker 03:
Well, I think it's undisputed that Mr. Augusto had never reported her for being an unfit mother, and he continued to share custody with her.

[00:17:41] Speaker 03:
So, you know, this is kind of a new stance for him at this juncture, fairly read.

[00:17:49] Speaker 01:
He did repeatedly express his concerns, however, and did talk about the fact that she shows up on occasion drunk to pick up June and whether or not... But he never made an official report of child neglect or any of that.

[00:18:05] Speaker 03:
Not in California.

[00:18:06] Speaker 03:
All right.

[00:18:06] Speaker 03:
Thank you, counsel.

[00:18:07] Speaker 03:
You will see to your time.

[00:18:08] Speaker 03:
We'll give you one minute for rebuttal.

[00:18:18] Speaker 02:
Good morning, Your Honors.

[00:18:19] Speaker 02:
Good morning.

[00:18:20] Speaker 02:
Jill Williams on behalf of the County of Los Angeles.

[00:18:23] Speaker 02:
May it please the court?

[00:18:25] Speaker 02:
To answer Your Honor's question about what California cases have done regarding Penal Code Section 11166 and whether there are any cases that support the appellant's position, there are not.

[00:18:42] Speaker 02:
And in fact, the Doe versus Lawndale case is very clear.

[00:18:48] Speaker 02:
It says the mandatory duty triggered by Penal Code Section 11166 refers to those facts known to a mandated reporter, not facts the reporter did not know, but should have known if they would have done more of an investigation.

[00:19:08] Speaker 00:
What are we supposed to do with the fact that we see reasonable suspicion as a matter of federal law?

[00:19:14] Speaker 00:
And that seems like a different

[00:19:17] Speaker 00:
standard in terms of if we're talking about a law enforcement officer or someone else in that standpoint in these circumstances, reasonable suspicion seems like a little lower bar, and that's the word that the California legislature has chosen.

[00:19:33] Speaker 00:
How do you explain the what what move is are the California courts doing in terms of setting a standard?

[00:19:39] Speaker 00:
What is the difference between there or is it the same the reasonable suspicion?

[00:19:42] Speaker 02:
Well in the the Joe versus Lawndale case they talked about exactly what your honor raised earlier, which is the fact that Section 11166 is a criminal Statute which sets a pretty high bar because of that and it's not just enough that a social worker a mandated reporter be negligent and

[00:20:02] Speaker 02:
in failing to unearth more facts or conducting more of an investigation.

[00:20:08] Speaker 02:
And essentially the cases in California that talk about this mandated duty talk about how proponents of the theory that a follow-up investigator such as a social worker here

[00:20:26] Speaker 02:
has to do more, proponents of that theory essentially are saying, exactly as Appelman is saying here, that the investigation was not thorough enough.

[00:20:37] Speaker 02:
They're trying to use 11166 to do another thing.

[00:20:39] Speaker 00:
Well, I guess that's where, and you prevailed on this before the district court, but BH does seem to be pretty clear in suggesting that it was talking about, and I think some subsequent courts might have misread this, that it was talking about

[00:20:55] Speaker 00:
the duty to report the prior course of conduct, the complaint of conduct.

[00:21:01] Speaker 00:
And do you agree now that if it were a new incident of abuse, that that would require mandatory reporting, assuming it met the reasonable suspicion standard?

[00:21:12] Speaker 02:
If the social worker had received information that Ms.

[00:21:17] Speaker 02:
Mazzarella was driving under the influence,

[00:21:20] Speaker 00:
How do you what do you mean by that does it have to be a complaint why can't the information received be?

[00:21:27] Speaker 02:
The reasonable suspicion itself through direct observation Well, so if you look at the cases that talk about it They talk about the information received say it is miss math say it is the social worker meeting miss Mazzarella in the parking lot and making observations here I want to clarify one thing

[00:21:44] Speaker 02:
Appellant says that there's evidence that the social worker thought she smelled alcohol.

[00:21:49] Speaker 02:
There is no evidence.

[00:21:51] Speaker 02:
The only evidence there is, is Ms.

[00:21:54] Speaker 02:
Mazzarella's testimony taken years after this that, do I smell alcohol?

[00:22:00] Speaker 02:
That's the evidence.

[00:22:01] Speaker 02:
Okay, that's the evidence, but there's no evidence from the social worker saying she ever entertained the suspicion that Ms.

[00:22:07] Speaker 02:
Mazzarella was under the influence.

[00:22:09] Speaker 02:
It would be one thing if the social worker sees Ms.

[00:22:12] Speaker 02:
Mazzarella driving into the parking lot

[00:22:14] Speaker 02:
erratically, or that she's stumbling, or that she's slurring her words.

[00:22:18] Speaker 04:
I agree there isn't that, but for the state to argue that there isn't any evidence that the social worker had that suspicion seems to me to be a bridge too far, and when you don't need to, you don't need to go there.

[00:22:29] Speaker 00:
And this is summary judgment.

[00:22:31] Speaker 02:
This is summary judgment, and the evidence on which the court relied was the contemporaneous notes made by the social worker supported by her declaration, which is

[00:22:42] Speaker 02:
I didn't observe anything or see anything that led me to believe she was under the influence.

[00:22:47] Speaker 04:
But she asked the question and she accepted the answer.

[00:22:50] Speaker 04:
It seems to me that maybe if she had thought that she smelled alcohol and hadn't followed up, that would be a problem.

[00:22:56] Speaker 04:
But viewing all the facts in the light most favorable, as we're required to do, I think it's a very reasonable inference that the social worker

[00:23:04] Speaker 04:
thought she smelled alcohol and inquired and the question has to become whether it's reasonable for her to have accepted that answer and knowing everything else she knew about this history was that enough to think this child was in danger to trigger a mandatory duty.

[00:23:16] Speaker 02:
And we submit that it was, when the court takes everything into account regarding the civil status.

[00:23:20] Speaker 04:
I think you're saying it wasn't.

[00:23:22] Speaker 04:
It wasn't enough to trigger a mandatory duty.

[00:23:25] Speaker 02:
My answer to your question was, we think it was reasonable.

[00:23:28] Speaker 02:
I see.

[00:23:29] Speaker 04:
A reasonable conclusion for me to make.

[00:23:31] Speaker 04:
But is that the right legal framework, the right analysis?

[00:23:34] Speaker 04:
This is the follow-up, right?

[00:23:36] Speaker 04:
This is a follow-up investigation.

[00:23:38] Speaker 04:
Right.

[00:23:38] Speaker 04:
So I don't think, I perked up here for a minute ago, because I thought you were maybe arguing something you're not.

[00:23:44] Speaker 04:
The information that came to her could include the social worker's own observations that evening, surely.

[00:23:51] Speaker 02:
Correct.

[00:23:52] Speaker 04:
Okay.

[00:23:52] Speaker 02:
Correct.

[00:23:53] Speaker 02:
Correct.

[00:23:54] Speaker 02:
And based on everything the social worker knew and saw, and you know, this isn't a situation of a social worker simply checking the boxes, right, during an investigation.

[00:24:05] Speaker 02:
This social worker did a lot of work on this referral that she received.

[00:24:09] Speaker 02:
She had numerous contacts with various collateral sources, made numerous

[00:24:14] Speaker 02:
Contacts with the parents with Ms.

[00:24:17] Speaker 02:
Mazzarella via phone via text with the appellant himself You know, she was following up trying, you know to get more information about the family This isn't a matter of something happening and then you know turning a blind eye.

[00:24:31] Speaker 04:
They were actively investigating I think that's right to just explore this further Do I have the fact pattern right that the the babysitter and you know other folks that indicated that the child was happy and healthy and

[00:24:44] Speaker 04:
She knew that at the time before the meeting in the parking lot?

[00:24:47] Speaker 02:
Correct.

[00:24:48] Speaker 04:
So what about, there is this indication that struck me as quite anomalous that she reported that evening to the social worker that she hadn't been drinking.

[00:24:56] Speaker 04:
She'd been sober for a number of months and then said, I almost in the same breath.

[00:24:59] Speaker 04:
I occasionally have a drink.

[00:25:02] Speaker 04:
It seemed pretty odd to me.

[00:25:06] Speaker 04:
I don't know that it's enough to trigger, but it did seem to be odd.

[00:25:10] Speaker 04:
And then I sort of put that together with the mom.

[00:25:12] Speaker 04:
I produced a,

[00:25:14] Speaker 04:
I don't know that she was under any obligation to produce that, right?

[00:25:18] Speaker 04:
She went through the drug test, I think, for her place of business.

[00:25:21] Speaker 04:
That's clear from the record, but she volunteered that to the social worker.

[00:25:25] Speaker 04:
Is that right?

[00:25:25] Speaker 02:
Well, this is what I want to clarify.

[00:25:27] Speaker 02:
When Ms.

[00:25:27] Speaker 02:
Mazzarella is making statements about being sober, she's talking about drug addiction problems, right?

[00:25:33] Speaker 02:
Because clearly she knew, the social worker knew she had been drinking because of the DUI that had happened on

[00:25:40] Speaker 02:
you know, the month prior that triggered this.

[00:25:42] Speaker 04:
Well, I think that's the only way you can understand the statement, of course.

[00:25:45] Speaker 02:
Right, so Ms.

[00:25:46] Speaker 02:
Mazzarella was clear.

[00:25:47] Speaker 02:
She's referring to, and when she's talking to the social worker, referring to being sober in term of drug use.

[00:25:52] Speaker 02:
not alcohol use.

[00:25:54] Speaker 04:
I guess I understand that but she's so let me ask it this way when she produced the drug maybe you could focus on this she produced a drug report that I think was that her employer had required is that right?

[00:26:08] Speaker 04:
Correct.

[00:26:09] Speaker 04:
And she produced it voluntarily to the social worker?

[00:26:11] Speaker 04:
She did.

[00:26:12] Speaker 04:
Okay so in other words she volunteered it she was not required to be providing drug tests at this point?

[00:26:18] Speaker 02:
correct she was she was explaining she was saying I show up to this meeting in the parking lot I'm you know.

[00:26:26] Speaker 02:
She testifies in deposition, I'm trying to make the social worker, you know, believe me and I don't want to lose custody of my child.

[00:26:34] Speaker 02:
So, you know, she's showing the negative drug test.

[00:26:37] Speaker 04:
Yes, I understand.

[00:26:38] Speaker 04:
And so is there any indication that the employer was requiring that drug testing of this employee only because of her history or was that just something across the board?

[00:26:46] Speaker 04:
Do we know that from this record?

[00:26:48] Speaker 02:
And so after, we do know from the record that after this drug test was provided,

[00:26:53] Speaker 02:
a different social worker followed up and asked the employer why they were requesting the drug test, and it was because the employer required it of all employees.

[00:27:03] Speaker 04:
So it was across the board.

[00:27:04] Speaker 04:
That's my understanding.

[00:27:05] Speaker 04:
Okay, so the prior history of drug use per the father, I think, was, is it methamphetamine?

[00:27:12] Speaker 02:
He had indicated methamphetamine, fentanyl, and that she had been on methadone.

[00:27:19] Speaker 04:
So you take it for her to be saying, I've been sober, as in clean from all of these substances for however many months it was, and then she says she's conceding, but I occasionally have a drink?

[00:27:31] Speaker 02:
Correct.

[00:27:31] Speaker 04:
All right.

[00:27:32] Speaker 04:
And then in that same meeting, the social worker

[00:27:35] Speaker 04:
At least if we construe all the facts in the light most favorable to opposing party, the social worker inquired about, do I smell alcohol on you and accepted her response?

[00:27:45] Speaker 02:
Correct.

[00:27:46] Speaker 04:
All right.

[00:27:46] Speaker 04:
Thank you.

[00:27:48] Speaker 02:
And in addition to the fact that there is, you know, based on what the information the social worker has at the time, that

[00:27:58] Speaker 02:
She doesn't conclude Ms.

[00:27:59] Speaker 02:
Mazzarella is driving under the influence.

[00:28:02] Speaker 02:
The mandatory duty under 11166 isn't triggered.

[00:28:06] Speaker 02:
Therefore, it's our position she's immunized under government code 820.2.

[00:28:11] Speaker 02:
In addition to both the lack of a mandatory duty, the application of the immunity, I think it's very important to look at just the giant

[00:28:23] Speaker 02:
chasm of causation that's here, assuming that even if a mandatory or even if a report had been made that day, that somehow it would have prevented the tragic circumstances that led to the child's death.

[00:28:39] Speaker 02:
But the district court didn't reach that, right?

[00:28:41] Speaker 02:
He relied on duty.

[00:28:42] Speaker 02:
The district court did not reach that.

[00:28:44] Speaker 02:
But we submit that if the district court had reached that, that, I mean, it was the, you know, the appellant criticizes us in the

[00:28:52] Speaker 02:
in the reply brief suggesting we don't have evidence to support all these hypotheticals.

[00:28:57] Speaker 02:
The hypotheticals aren't enough at summary judgment.

[00:29:00] Speaker 02:
But at the summary judgment stage, we had gone forward on summary judgment saying the appellant didn't have evidence to support the essential elements of the claim.

[00:29:11] Speaker 02:
And the appellant, as the party that would have borne the burden of proof at trial, it was their burden of proof than an opposing summary judgment to

[00:29:21] Speaker 02:
present that evidence to support the elements of the claim.

[00:29:24] Speaker 02:
So it was the appellant who had the obligation to show that there was a causal connection between an alleged failure to report the August 15 parking lot meeting and the child's unfortunate death.

[00:29:38] Speaker 02:
And the appellant offered no evidence to support that.

[00:29:42] Speaker 03:
Counsel, I have a different procedural question.

[00:29:44] Speaker 03:
In the reply brief, the plaintiffs abandoned all of their federal claims.

[00:29:50] Speaker 03:
Yes.

[00:29:51] Speaker 03:
Do we still have jurisdiction over this appeal?

[00:29:55] Speaker 02:
Well, the court can't.

[00:29:57] Speaker 02:
I mean, the court assumed jurisdiction.

[00:30:01] Speaker 02:
I guess the court can voluntarily assume jurisdiction.

[00:30:04] Speaker 02:
The case has been before the federal court up until now.

[00:30:09] Speaker 02:
And I think for the appellant to abandon it now when this court has done, unfortunately, all the work on the case, this court has in other

[00:30:20] Speaker 02:
Cases addressed issues of state law only.

[00:30:24] Speaker 03:
What case says that we retain jurisdiction even though all of the federal claims have been abandoned?

[00:30:31] Speaker 03:
Do you have a case that we can rely on for that proposition?

[00:30:34] Speaker 02:
I don't at the tip of my hands, Your Honor.

[00:30:37] Speaker 02:
I apologize.

[00:30:38] Speaker 02:
But I do know that the court can choose to retain supplemental jurisdiction if the court desires.

[00:30:46] Speaker 03:
Even if all the federal claims have been abandoned?

[00:30:53] Speaker 04:
We're a lot more used to seeing a district court dismiss the federal claims and then decline to exercise supplemental jurisdiction.

[00:30:58] Speaker 04:
That is what I have seen, Your Honor.

[00:31:01] Speaker 00:
I guess the question is whether supplemental appellate jurisdiction is discretionary or not.

[00:31:07] Speaker 02:
And I'm sorry, Your Honor, I don't have an answer to that.

[00:31:09] Speaker 03:
That just occurred to me when I saw that in the reply brief, no less, that all of the federal claims were being abandoned.

[00:31:18] Speaker 03:
I don't know the answer.

[00:31:20] Speaker 02:
Well, if the court would like briefing on that I would be more than happy.

[00:31:25] Speaker 03:
We'll let you know if we can't figure it out and if we need additional assistance on that.

[00:31:29] Speaker 03:
Are there any other questions?

[00:31:31] Speaker 03:
Anything else council?

[00:31:33] Speaker 03:
No, thank you so much.

[00:31:39] Speaker 03:
Counsel, I'll ask you the same question.

[00:31:42] Speaker 01:
And unfortunately, I don't have much more of an answer to provide.

[00:31:46] Speaker 01:
I would be happy to research and provide a short memo.

[00:31:50] Speaker 03:
We have very capable law clerks.

[00:31:52] Speaker 01:
I know you do.

[00:31:53] Speaker 03:
If you need your help, we'll let you know.

[00:31:56] Speaker 01:
Thank you, Your Honors.

[00:31:57] Speaker 01:
That's a great point.

[00:31:59] Speaker 01:
I was actually opposing counsel's points, but they're all points that should be given

[00:32:05] Speaker 01:
to a jury.

[00:32:07] Speaker 01:
Again, this is summary judgment.

[00:32:09] Speaker 01:
And as Your Honor observed at the meeting, the social worker came and asked the question of alcohol, of whether she smelled alcohol.

[00:32:22] Speaker 01:
That alone raises the inference that she smelled alcohol, that she observed facts.

[00:32:28] Speaker 01:
She thought she smelled alcohol.

[00:32:29] Speaker 01:
Thought she smelled alcohol.

[00:32:31] Speaker 01:
Enough so that it prompted her to ask the question.

[00:32:34] Speaker 01:
And at summary judgment, that is sufficient for a reasonable jury to say she suspected in that moment that Mozzarella was under the influence.

[00:32:45] Speaker 01:
And that is a crucial moment because what Lee did in following that, when she asked Mozzarella about whether she smelled the alcohol and accepted the soy sauce excuse, that is her conducting

[00:33:04] Speaker 01:
you know, on the spot investigation.

[00:33:06] Speaker 01:
That is explicitly prohibited by

[00:33:11] Speaker 01:
The BH case talks about that.

[00:33:13] Speaker 01:
It says it doesn't permit a mandated reporter to investigate and determine that no abuse occurred.

[00:33:18] Speaker 01:
So a reasonable person who smells alcohol on someone who's being investigated for driving while under the influence, who smells alcohol after seeing them.

[00:33:31] Speaker 01:
Who thought they smelled alcohol.

[00:33:32] Speaker 03:
You keep saying she smelled alcohol.

[00:33:34] Speaker 03:
She thought she smelled alcohol, and she asked a question to clarify it.

[00:33:38] Speaker 03:
So the fact is that

[00:33:40] Speaker 03:
The record does not reflect that she actually smelled alcohol.

[00:33:44] Speaker 03:
She thought she smelled alcohol and then clarified it.

[00:33:46] Speaker 01:
There's a big difference between that.

[00:33:49] Speaker 01:
I respectfully disagree that the record does not show that she smelled alcohol.

[00:33:52] Speaker 01:
I mean, we know that mozzarella was under the influence.

[00:33:55] Speaker 04:
So what she suspected she smelled was... When you say that, I think you're talking past each other.

[00:34:01] Speaker 04:
I think when you say that, I'm assuming you're relying on the mozzarella's deposition testimony some weeks later, maybe months later, saying, by the way, I had been drinking that night.

[00:34:11] Speaker 00:
Yes.

[00:34:11] Speaker 04:
Okay.

[00:34:12] Speaker 04:
But the social group didn't know that.

[00:34:14] Speaker 04:
We can't consider post-talk.

[00:34:22] Speaker 01:
The social worker was correct, is the point, when she suspected she smelled something that smelled like alcohol.

[00:34:31] Speaker 01:
It was, it was, it was alcohol.

[00:34:33] Speaker 00:
Is there a California case that suggests we can look at this in hindsight?

[00:34:38] Speaker 01:
You have to look at the totality of the circumstances.

[00:34:41] Speaker 01:
What's the totality of the circumstances?

[00:34:43] Speaker 01:
At the time of the parking lot.

[00:34:45] Speaker 01:
She had a DUI.

[00:34:46] Speaker 01:
She smelled enough like alcohol that prompted the social worker to ask.

[00:34:51] Speaker 01:
And that a reasonable juror could find enough to find that she had a reasonable suspicion of her being under the influence.

[00:35:02] Speaker 01:
And that should have triggered a report right there.

[00:35:05] Speaker 01:
And I understand that maybe it's not the world's strongest evidence.

[00:35:08] Speaker 01:
She wasn't swerving, although she did pull into the wrong parking lot two hours late, and her kid wasn't wearing underwear and was running around the car kind of distracted, and she had been dodging her for weeks.

[00:35:18] Speaker 01:
But assuming just on the very fact of a question of, you know, do I smell alcohol, that is enough for a reasonable jury to conclude that

[00:35:34] Speaker 01:
a reasonable social worker should have.

[00:35:36] Speaker 03:
Thank you, counsel.

[00:35:37] Speaker 03:
We understand your argument.

[00:35:38] Speaker 03:
Thank you.

[00:35:39] Speaker 03:
Thank you to both counsel for your helpful argument.

[00:35:41] Speaker 03:
The case just argued is submitted for decision by the court that completes our calendar for the morning.

[00:35:46] Speaker 03:
We are in recess until 9.30 AM tomorrow.

[00:36:01] Speaker 02:
This court stands in recess until 9.30 tomorrow morning.