The San Bernardino Superior Court granted a motion to partially strike without leave in a case brought against San Bernardino County by two minors who alleged sexual abuse in a foster home the county placed them in.
The strike keeps the majority of the complaint intact, but changes a cause of action against the county and county employees based on their mandatory duties.
The complaint also names as defendants Mia’s Homes Foster Family Agency, Bienvenidos Foster Family Agency, supervising social services practitioners Esmeralda Lomeli and Stephanie Rios, social workers Trisia Ritenour and Lisa Badarou, foster home providers Reyna and Felipe Tinoco, and their son, Julio Tinoco-Dominguez.
Six years of abuse alleged
The abuse occurred for six years, when the sister and brother were between 6 years old and 12 years old, and 8 years old and 13 years old, their complaint alleges.
The Tinocos had at least 12 referrals for abuse or neglect during the plaintiff’s time at their home, the complaint asserts. At one point, the county allowed the plaintiffs to stay in the house despite placing a hold on the Tinoco home.
The referrals were for, among other accusations, slapping and pulling the hair of a dependent, committing minor sexual abuse and hitting a minor dependent on the head with a fist, and that the son of the Tinocos’ childcare provider grabbed a minor dependent’s vagina.
One of the sisters was removed from the house on July 24, 2019, the complaint said. A year later, she said that the Tinocos’ son choked and sexually abused her, starting when she was 8 years old, and that Reyna Tinoco would abuse her in a small locked room in Mexico.
The complaint called for a breach of mandatory duties violations of constitutional rights and Monell-related claims against the county or county employees, assault and battery and intentional infliction of emotional distress against the Tinocos, sexual battery against Julio Tinoco-Dominguez, and negligence causes against multiple defendents as causes of action.
The plaintiffs prayed for general damages, special damages, punitive damages and costs of suit.
Manuals and duties
In the first cause of action, against the county and the social workers for breach of mandatory duties, the plaintiffs allege that the county and the county employees named 12 sources of mandatory duties, including the 14th Amendment, the Health and Safety Code Section 1501.1(d) and 1522.1, the California Penal Code Section 11166, and eight sections of the California Department of Social Services Manual of Policies and Procedures.
San Bernardino Superior Judge Gilbert Ochoa found that the plaintiff’s reference to the California Department of Social Services Manual of Policies and Procedures did not prove mandatory duties.
Instead, the manual shows guidance, and involves discretion as to placement and supervision.
“An enactment does not create a mandatory duty if it merely recites legislative goals and policies that must be implemented through a public agency’s exercise of discretion,” Ochoa further quoted the 2002 case County of Los Angeles v. Superior Court (Terrell R.)
Plaintiffs argued that Terrell R. had been superseded by the Ninth Circuit holding in AE v. County of Tulara, but Ochoa found AE not binding because it is a federal decision.
Parties
Jack Anthony and Rebekah Yabko of the Law Offices of Jack H. Anthony represent the siblings.
Christie Swiss and Katrina Weil of Collins + Collins LLP represent the county.
Case number: CIVSB2126103
Read the complaint here.
Read the ruling here.
