[00:00:03] Speaker 02:
All right, so the, I'll give them a moment to unpack.

[00:00:12] Speaker 02:
All right, so the final case for argument this morning is Frances Eniart versus the County of San Bernardino.

[00:00:20] Speaker 02:
Council, if it appears you're ready, please proceed.

[00:00:23] Speaker 04:
Good morning.

[00:00:25] Speaker 04:
May it please the court?

[00:00:26] Speaker 04:
Nadia Sarkis on behalf of San Bernardino County.

[00:00:28] Speaker 04:
I'd like to reserve four minutes for rebuttal.

[00:00:33] Speaker 04:
I think this case, in many ways, is the epitome of a lot that has gone awry in Monell Jurisprudence.

[00:00:40] Speaker 04:
It seems to be the subject of the morning.

[00:00:42] Speaker 00:
You have to speak up a little bit louder, please.

[00:00:43] Speaker 04:
Yes, thanks for telling me.

[00:00:45] Speaker 04:
Here, there's no dispute that the county had lots of policies and practices in place to detect and treat detainees who were at risk of alcohol withdrawal symptoms.

[00:00:58] Speaker 04:
Arresting officers were trained to share information that they learned about that risk with

[00:01:03] Speaker 04:
for the people they took into custody.

[00:01:05] Speaker 04:
The county also had robust policies in place to guide medical staff to diagnose and treat this condition.

[00:01:11] Speaker 04:
County nurses and doctors also had, were highly skilled and had their own ability to independently assess this risk and they did so, but they concluded that William Enyart was not at risk of dangerous alcohol withdrawal symptoms.

[00:01:30] Speaker 04:
That turned out to be a mistaken assessment.

[00:01:33] Speaker 04:
And there is a whole confluence of unique and idiosyncratic events that ended up leading to Enyart's tragic death, not least of which was Enyart's decision to exercise his own constitutional right to refuse the medical care that was offered to him.

[00:01:52] Speaker 04:
Enyart's family members sued the county, but they don't blame the county's medical staff for Enyart's death.

[00:01:59] Speaker 04:
Plaintiffs did try to blame the arresting officers,

[00:02:02] Speaker 04:
But the jury found that they did not do anything wrong.

[00:02:06] Speaker 04:
The jury also found that the staff members who answered phone calls from Enyart's parents did nothing wrong.

[00:02:14] Speaker 04:
They did not act with negligence and they did not act with, sort of, violate Enyart's constitutional rights by failing to pass on health information.

[00:02:25] Speaker 02:
So, counsel, you're leading with your merits argument, but could you discuss the Rule 50A issue and that... Yes.

[00:02:37] Speaker 02:
I don't see that an actual Rule 50A motion was made before the district court and that the motion was made after the verdict was returned.

[00:02:46] Speaker 04:
I'm happy to address the 50A issue.

[00:02:49] Speaker 04:
So there was a 50A motion that was filed pursuant to the court's scheduling order.

[00:02:58] Speaker 04:
After the verdict was returned.

[00:02:59] Speaker 04:
It was after the verdict.

[00:03:00] Speaker 04:
I agree with that.

[00:03:01] Speaker 02:
Yes.

[00:03:02] Speaker 02:
So you're relying on the discussion, the colloquy between the district judge and the council to say that there was a scheduling order that obviated the requirement to make a motion before the verdict was returned.

[00:03:16] Speaker 04:
Right, the district court made the decision and set the sort of order of events and induced the parties to follow this schedule.

[00:03:25] Speaker 02:
So, well, there's a couple of issues with that statement, but assuming that we're true, doesn't rule 83B preclude the district court from overriding the requirements of a rule to say rule 50A doesn't apply even though we have all sorts of case law about why it applies and how important it is and how it's strictly applied, that the district court could disregard rule 50A because rule 50A

[00:03:53] Speaker 02:
83B says a judge may regulate practice in any manner consistent with federal law and rules adopted under 28 USC section 2072 and 2075 and the district court's local rules.

[00:04:07] Speaker 02:
In other words, the district court has to comply with the rules and the law.

[00:04:10] Speaker 02:
So even if your characterization of what occurred at that colloquy is correct, how did the district court have authority to disregard rule 50A?

[00:04:20] Speaker 04:
The district court

[00:04:22] Speaker 04:
made a factual finding that there was no waiver on this record.

[00:04:27] Speaker 04:
And there is a whole line of appellate authority that says, in circumstances like this, that there is no waiver.

[00:04:34] Speaker 02:
So you're relying on CB versus City of Sonora and Reid versus, I'm too sure, I assume, what you call a line of... And those are the two of the Ninth Circuit decisions.

[00:04:44] Speaker 02:
Right.

[00:04:44] Speaker 02:
And in both of those cases, the parties attempted to make the motion and they were cut off.

[00:04:49] Speaker 02:
And the court said it was an inartful attempt, or it was an attempt, and so we're going to construe it as they made the motion.

[00:04:55] Speaker 02:
The district court prevented them from making the motion.

[00:04:57] Speaker 02:
But I don't think that that's what happened here.

[00:04:59] Speaker 02:
The district court said, we can go to exactly what the district court said, but they didn't try to make a motion and were cut off and stopped.

[00:05:06] Speaker 02:
They didn't try to make a motion at all.

[00:05:08] Speaker 02:
He said, I want to make sure you all have the right to make your motion.

[00:05:10] Speaker 02:
Crickets.

[00:05:11] Speaker 02:
Silence.

[00:05:11] Speaker 02:
They didn't make a motion.

[00:05:13] Speaker 02:
And then he said his scheduling order.

[00:05:16] Speaker 04:
Right, before anyone could get a word in edgewise.

[00:05:19] Speaker 02:
Before they could get a word in edgewise?

[00:05:21] Speaker 02:
Really?

[00:05:21] Speaker 02:
That is what happened.

[00:05:23] Speaker 02:
We have the transcript, right?

[00:05:24] Speaker 02:
So he said, I want to make sure you preserve your right.

[00:05:27] Speaker 02:
Let's set the schedule.

[00:05:28] Speaker 02:
And then they went on, and nobody said anything, and they went on to talk about other things, jury instructions, I believe.

[00:05:36] Speaker 02:
Council chose at that point not to say, Your Honor, just for the record, we'd like to preserve a motion to Rule 50A, and then we'll brief it later if you're giving us some additional time to file an actual motion as opposed to an oral motion.

[00:05:50] Speaker 02:
That didn't happen.

[00:05:51] Speaker 02:
So it seems that CB and Reeves are not on point.

[00:05:56] Speaker 02:
They're not applicable, or they don't really help you in this factual pattern.

[00:06:01] Speaker 04:
So I would say that

[00:06:04] Speaker 04:
There, you can draw the, I understand the lines that you're drawing, but I do think whether there is a waiver here is a factual question.

[00:06:13] Speaker 02:
And it can be clearly erroneous.

[00:06:16] Speaker 04:
Right, but I don't think it was here.

[00:06:19] Speaker 02:
Well, I understand that's your position and I'm pressing you on this to explain, your explanation is this is what the transcript says and it unfolded so quickly we were not permitted to make the motion.

[00:06:34] Speaker 04:
So, appellate courts have repeatedly said that when the court expressly reserves the party's rights to make a motion, that the parties have the right to rely on that.

[00:06:45] Speaker 04:
And so you're saying that.

[00:06:46] Speaker 02:
Well, tell me what has the Ninth Circuit said that and can you give me a citation because I think the cases you cited do not say that.

[00:06:55] Speaker 02:
They talk about when the parties, even if it's an artful, if they at least make the temp and they're cut off and the district court prevents them from making the motion, which is not what happened here.

[00:07:03] Speaker 02:
Your briefs make a different argument that there was a reliance on some scheduling discussion.

[00:07:10] Speaker 04:
Well, I actually want to point out a U.S.

[00:07:12] Speaker 04:
Supreme Court opinion that I think is helpful, and then is Exxon Shipping Company versus Baker.

[00:07:19] Speaker 04:
It's 554 U.S.

[00:07:19] Speaker 04:
487, Note 6.

[00:07:23] Speaker 04:
And it says that appellate courts should defer to a district court's sensible efforts to impose order upon the issues in play and the progress of trial.

[00:07:33] Speaker 04:
And the reason for procedural rules is not to make litigation a game with arbitrary rules to test the skill of the players.

[00:07:38] Speaker 02:
Right.

[00:07:39] Speaker 02:
And so there's also Rule 83 that says the district court has to comply with the rules in the law.

[00:07:44] Speaker 02:
And the authority discussing Rule 50 that the very reason for it is to avoid gamesmanship.

[00:07:48] Speaker 02:
So you don't wait until after you get the verdict and then decide if you're going to make that motion so that you don't impinge, the district court doesn't impinge on the jury's fact finding and there's no gamesmanship.

[00:07:58] Speaker 02:
I mean, the case law is very clear that that's what Rule 50A is about.

[00:08:02] Speaker 02:
Right.

[00:08:02] Speaker 04:
But I don't think that's what happened here.

[00:08:03] Speaker 04:
I think that the gamesmanship is not by the county.

[00:08:07] Speaker 02:
Well, the plaintiffs were supposed to make a Rule 50 motion.

[00:08:11] Speaker 02:
I mean, I don't know how you can pin gamesmanship on them.

[00:08:14] Speaker 02:
I don't know if it was intentional, but the motion wasn't made.

[00:08:20] Speaker 02:
So maybe it was just negligent.

[00:08:21] Speaker 02:
But it didn't happen.

[00:08:23] Speaker 02:
And I'm discussing the purpose of the rule.

[00:08:26] Speaker 02:
And you're citing to me a Supreme Court decision about some generalities about gamesmanship and district courts managing the courtrooms.

[00:08:32] Speaker 02:
Of course, that's all true.

[00:08:34] Speaker 04:
Right.

[00:08:35] Speaker 04:
But it's beyond dispute that there are many circumstances under which a 50A motion is not brought pre-verdict and is not deemed waived that someone loses all their appellate rights.

[00:08:45] Speaker 02:
I don't think that's true.

[00:08:46] Speaker 02:
I think what you're discussing, there's limited cases where there has been what's construed as an attempt, where there's been a liberal construction of what occurred.

[00:08:54] Speaker 02:
It was an attempt to make the motion, not that it just wasn't made and we say that's OK.

[00:08:58] Speaker 02:
I mean, there are lots of rules that appear draconian and harsh.

[00:09:02] Speaker 02:
You miss the deadline for filing a notice of appeal.

[00:09:05] Speaker 02:
It's jurisdictional.

[00:09:06] Speaker 02:
And even if the district court had said to you an erroneous deadline, it's still a problem, right?

[00:09:11] Speaker 02:
I mean, I just don't think you can rely on that colloquy to say that we were obviated of any responsibility to make that motion.

[00:09:21] Speaker 02:
And then we now want to make it later.

[00:09:25] Speaker 04:
So, I mean, I went through all of the cases cited by the other side.

[00:09:29] Speaker 04:
I cited to several other authorities that support our position.

[00:09:33] Speaker 04:
I understand you do not seem to be persuaded by those.

[00:09:37] Speaker 04:
I respectfully disagree, and I think that this appeal should be decided on the merits.

[00:09:42] Speaker 02:
Well, even on the merits, you have issues with respect to the failure to cross-examine their expert on the policy issue, the failure to object to that testimony.

[00:09:54] Speaker 02:
I mean, there were other things that happened in this trial that

[00:09:57] Speaker 04:
Right, but our appeal doesn't turn on that.

[00:09:59] Speaker 04:
We're accepting that testimony as true and all reasonable inferences that can be derived from it.

[00:10:05] Speaker 02:
You're arguing that essentially there wasn't notice that this had not happened before and

[00:10:13] Speaker 02:
plaintiff's theory and argument was that through their expert they established that this was such an obvious danger that it falls within the exception that there can still be liability even if there hadn't been a previous death.

[00:10:27] Speaker 02:
Like basically you don't get one free death and you dispute that and maybe could have done a persuasive rebuttal of that evidence by cross-examining their expert on that or objecting to that or presenting contrary evidence but none of that happened.

[00:10:45] Speaker 04:
Based on the evidence that is on the record, there is no viable Monell claim.

[00:10:51] Speaker 04:
And I can go through that.

[00:10:52] Speaker 04:
So I understand that there's... May I interrupt you for a second?

[00:10:55] Speaker 00:
A moment ago, you said that the issue of waiver should be decided based on the facts of the case.

[00:11:03] Speaker 00:
It's a factual determination.

[00:11:06] Speaker 00:
Are you asking for a remand so that a factual determination can be made as to whether the extension of time to file the motion

[00:11:15] Speaker 00:
was justified?

[00:11:17] Speaker 04:
I think the district court already made the factual determination because plaintiffs argued waiver up and down repeatedly and the district court determined that there was no waiver based on the court's own conduct.

[00:11:32] Speaker 00:
You've answered my question.

[00:11:33] Speaker 00:
Thank you.

[00:11:36] Speaker 04:
So, yeah, I'm happy to go through this concept of single incident Monell liability and why it doesn't work here.

[00:11:45] Speaker 04:
So the jury found the county as an institution liable for failing to have this specific communication policy that required employees who act as receptionists and have no interaction with inmates that they have to relay health information from inmates' family members.

[00:12:04] Speaker 04:
And I don't think that's a tenable Monell claim for lots of reasons.

[00:12:08] Speaker 04:
So Monell is supposed to have a very stringent standard.

[00:12:13] Speaker 04:
There was not any evidence whatsoever that anyone in the county custody had ever suffered a similar harm.

[00:12:20] Speaker 04:
because of this type of policy or mission or lack of training.

[00:12:24] Speaker 04:
There was also not any evidence whatsoever in the record that the county knew that receptionists would obtain critical medical information that the medical staff would not have otherwise learned or acted on.

[00:12:39] Speaker 04:
So at most plaintiffs with the benefit of 20-20 hindsight identified a narrow policy gap that they think the county might have anticipated in order to avoid an isolated event.

[00:12:52] Speaker 04:
That's not deliberate indifference to a known risk.

[00:12:56] Speaker 04:
That would turn Monell liability on its head.

[00:12:58] Speaker 04:
And I also don't think it's a novel conclusion to say that.

[00:13:01] Speaker 04:
I won't retread our briefs.

[00:13:03] Speaker 04:
But there is substantial Supreme Court and Ninth Circuit authority that supports our position.

[00:13:08] Speaker 04:
It's a Brian Case, Canton, Tuttle, Connick, and the Ninth Circuit, Gordon, Bell, Trevino, Benavides, all support that.

[00:13:18] Speaker 04:
And I also do want to talk about the regulations for a few minutes.

[00:13:22] Speaker 04:
I'm running low on time, but this is very different than

[00:13:30] Speaker 04:
The Castro case.

[00:13:32] Speaker 04:
So the district court's rationale for upholding the verdict was that the regulations were not obviously inconsistent with the communication policy that plaintiffs wanted.

[00:13:41] Speaker 04:
That's not correct and it's not really the right framework.

[00:13:46] Speaker 04:
And plaintiffs argue that these regulations implicitly require the county to anticipate a need for this type of communication policy.

[00:13:55] Speaker 04:
That doesn't work either.

[00:13:56] Speaker 04:
That's not what Castro sort of allows for in terms of single incident liability.

[00:14:03] Speaker 04:
Castro says that plaintiffs can sometimes establish deliberate indifference even without a pattern of prior incidents if the municipality affirmatively adopts an ordinance that explicitly acknowledges the very type of harm that a plaintiff suffers and then fails to follow that policy.

[00:14:20] Speaker 04:
That's nothing like this case.

[00:14:22] Speaker 04:
So I'll reserve the last minute I have.

[00:14:25] Speaker 02:
Thank you.

[00:14:26] Speaker 02:
I'll give you a couple of minutes on rebuttal.

[00:14:36] Speaker 03:
Good morning, Your Honors.

[00:14:37] Speaker 03:
May it please the court.

[00:14:39] Speaker 03:
My name is Grace Junn.

[00:14:40] Speaker 03:
I have the privilege of representing the plaintiffs in this case.

[00:14:43] Speaker 03:
With me are my co-counsel, Joe McMullen and Danny Pena.

[00:14:47] Speaker 03:
The plaintiffs, the mother and sister of William Enyart, the decedent, are present before the court as well.

[00:14:53] Speaker 03:
I would like to start with a 7th Circuit case.

[00:14:57] Speaker 03:
While I was preparing last night, I came upon a recently published 7th Circuit case that is exactly on point about the issue of waiver and forfeiture with respect to Rule 50A.

[00:15:08] Speaker 03:
That case is called Ziccarelli v. Dart 142.

[00:15:13] Speaker 03:
F, 4th, 477, 2025.

[00:15:17] Speaker 03:
It was issued on June 30th of this year after the briefing was done.

[00:15:23] Speaker 03:
And Ziccarelli, I believe, is incredibly helpful because it addresses the argument that the defendants make in this case, which is that they were induced by the district court not to file a timely Rule 50A motion before the matter was submitted to the jury.

[00:15:41] Speaker 03:
The Seventh Circuit and Ziccarelli

[00:15:43] Speaker 03:
Rejected that argument when it happened in Ziccarelli is that the?

[00:15:49] Speaker 03:
Defense counsel attempted to make a rule 50 a motion at the close of evidence the district and she asked she queried Should it be at sidebar or in front of the jury and the district court said I've taken your motion under advisement And so no other rule 50 a motion was made

[00:16:07] Speaker 03:
Subsequently, there was a Rule 50B motion that was renewed.

[00:16:11] Speaker 00:
Wait a minute, counsel.

[00:16:12] Speaker 00:
That case is quite different from the cases that we're dealing with here.

[00:16:16] Speaker 00:
I mean, to take the motion under advisement doesn't say anything like what the Judge Klausner said in this case, which was, file your motion next Monday on a Thursday.

[00:16:29] Speaker 00:
So thank you for the citation.

[00:16:32] Speaker 00:
Let's continue with your argument.

[00:16:35] Speaker 03:
Yes, Your Honor.

[00:16:36] Speaker 03:
I would then continue on to the authority cited by the defendants in this case.

[00:16:40] Speaker 03:
And respectfully, Your Honor, if I may clarify, it was not that the district court ever prevented any attorney or counsel from making the initial Rule 50A motion.

[00:16:52] Speaker 03:
The court actually said, I'll let you make these motions now.

[00:16:56] Speaker 00:
But then I'll set the- That's different from what you said the first time.

[00:16:59] Speaker 00:
All right.

[00:17:00] Speaker 03:
Then I'll set the schedule.

[00:17:01] Speaker 03:
And so there was no attempt to even prevent anyone from making a motion.

[00:17:05] Speaker 03:
There was no, no one even initially made a motion.

[00:17:08] Speaker 03:
I would say turning to the authority cited by the defendants in this case, citing to Ninth Circuit cases.

[00:17:16] Speaker 03:
The defendants cite to CB versus City of Sonora, which I will refer to as Sonora.

[00:17:23] Speaker 03:
The defendants actually cited to footnote five of a vacated three-judge panel opinion.

[00:17:28] Speaker 03:
So in the vacated opinion, the footnote five indicated that the district court properly considered this consolidated rule 50A and rule 50B motion.

[00:17:39] Speaker 03:
That opinion was subsequently vacated by the court en banc.

[00:17:45] Speaker 03:
When the court en banc heard Sonora, that footnote 5 never carried over.

[00:17:49] Speaker 03:
In fact, what happened was in footnote 12, the en banc court stated that it would consider the rule 50B motion and the arguments therein because the plaintiff had never objected in the district court below.

[00:18:05] Speaker 02:
So the situation here though is that the district court did set a schedule for filing motions.

[00:18:12] Speaker 02:
So it seems unfair to penalize the county for following that schedule.

[00:18:18] Speaker 02:
How would you respond to that?

[00:18:21] Speaker 03:
Your Honor, I think the very point of Rule 50A, if you read the 1991 advisory committee notes, which is actually when Rule 50A implemented the rule that a

[00:18:33] Speaker 03:
a motion for judgment as a matter of law, a 50A motion must be made before the close of evidence and it must specify the basis for the judgment and specify the law and facts in support of that judgment.

[00:18:46] Speaker 03:
It has always been viewed, in fact, by both this court and the advisory committee notes, the purpose of that rule is to give notice and an opportunity to cure any defects in the evidence.

[00:18:59] Speaker 03:
In other words, it's intended to make sure that problems get solved at the district court level so that it doesn't consume additional litigation and court resources and time.

[00:19:09] Speaker 02:
But if the district court erred by suggesting that this motion could be made later, again, it gets back to the same question, why should the county be penalized for the district court's error?

[00:19:19] Speaker 03:
I do not think the error was by the district court.

[00:19:22] Speaker 03:
There was, as the court noted, an opportunity for the county to make such a motion, but there was crickets after the court said, I understand that some of you may want to file a judgment as a matter of law.

[00:19:34] Speaker 03:
In fact, that colloquy happened at the end of the day.

[00:19:37] Speaker 03:
So subsequently, there was certainly nothing preventing the County of San Bernardino from filing a Rule 50A motion simply or giving notice on through PACER, you know, e-filing something.

[00:19:49] Speaker 03:
But that didn't happen.

[00:19:50] Speaker 03:
At no point did they make any attempt to file a Rule 50A motion.

[00:19:53] Speaker 01:
It would have been sufficient if the defendant had said, I'd like to make a Rule 50A motion and the judge then just says, okay, I'm setting a schedule and

[00:20:02] Speaker 01:
It can be Monday.

[00:20:03] Speaker 01:
Would that have been sufficient if they just said, I'd like to make a Rule 58 motion and the judge then issues the scheduling order as it actually did?

[00:20:09] Speaker 03:
No, Your Honor, in accordance with the plain language of Rule 50A, which is strictly construed as this court has previously held.

[00:20:18] Speaker 03:
The basis for the motion for judgment as a matter of law must be specified and the facts and law therein.

[00:20:25] Speaker 03:
Now, if there had been some more basic evidence given, I'm going to make a rule 50A motion and the basis is qualified immunity or there isn't sufficient.

[00:20:36] Speaker 01:
And the judge says, okay, I understand.

[00:20:38] Speaker 01:
I'll listen to it.

[00:20:40] Speaker 01:
Just file your brief next Monday.

[00:20:42] Speaker 01:
In that situation, would that have been sufficient?

[00:20:45] Speaker 03:
I think that the rule 58, so long as the plain language of rule 58 is satisfied, there is specification, a citation, even briefly to the laws and fact, that's good enough and 58 would be satisfied, Your Honor, yes.

[00:20:58] Speaker 01:
I'm thinking, wouldn't it be more like some of the other cases that the defendant has cited where the judge prevents them from fully making the motion?

[00:21:09] Speaker 01:
It says, I want to make a rule 58 motion.

[00:21:11] Speaker 01:
The judge says, okay, well, I'll just brief it later.

[00:21:13] Speaker 01:
Unfortunately, it's after the verdict.

[00:21:16] Speaker 01:
But in that case, wouldn't it fit in those type of situations where we've kind of carved an exception or where you kind of try to make a 58 motion but the judge precludes you from fully doing so?

[00:21:28] Speaker 03:
So, Your Honor, I do not think the Ninth Circuit has ever carved such an exception.

[00:21:32] Speaker 03:
Certainly, they did not in tortu.

[00:21:33] Speaker 03:
I believe that the Seventh Circuit squarely addressed that issue.

[00:21:37] Speaker 03:
What happens if a party relies on a statement by the district court, such as, okay, your motion is taken under advisement, but there is no specification of the grounds or the law or the reasoning?

[00:21:47] Speaker 03:
In that situation, what the Seventh Circuit said in Ziccarelli was that it is still incumbent upon the party to follow all procedural rules.

[00:21:56] Speaker 03:
And this is what the Seventh Circuit said.

[00:21:59] Speaker 03:
There are plenty of circumstances in which lawyers must comply with procedural requirements to preserve arguments for later in the trial or appellate review, even when a district judge may express impatience or resistance to hearing the argument.

[00:22:14] Speaker 00:
And- Apple, have you considered the case of Reeves versus Toscher?

[00:22:18] Speaker 03:
Yes, Your Honor, I have.

[00:22:19] Speaker 00:
I wouldn't... Oh, I'm so sorry.

[00:22:21] Speaker 00:
In that case, as I remember, as I see in my notes here, the defendants attempted to move for a directed verdict after all the evidence was in, but the court interrupted and told them to renew the motion after the verdict, and they did so.

[00:22:35] Speaker 00:
The Ninth Circuit said the motion was properly made.

[00:22:39] Speaker 03:
Yes, Your Honor, and I would note that Reeves was a 1989 case.

[00:22:42] Speaker 03:
Right.

[00:22:42] Speaker 03:
It was subsequently

[00:22:45] Speaker 03:
The rule 50A was amended in 1991.

[00:22:50] Speaker 03:
And if you look at the 1990, this amendment in 1991 is the amendment that required specification for the basis of the judgment and specification of the laws in fact in support of the motion for judgment as a matter of law.

[00:23:05] Speaker 03:
So to the extent that Reeves is contrary to the plain language of Rule 50A as it now stands, I believe that has been superseded by the subsequent 1991 Amendment to Rule 50.

[00:23:17] Speaker 03:
And in fact, I'm not sure that the language in Reeves, that an ambiguous statement can satisfy the dictates of Rule 50A as it now stands because of that requirement of specification

[00:23:30] Speaker 03:
of the basis for the JMOL.

[00:23:33] Speaker 03:
But even if it could, that didn't happen here.

[00:23:36] Speaker 03:
That's exactly right, Your Honor.

[00:23:38] Speaker 03:
Regardless, when we look at the facts of this case, what we are presented with is absolute silence.

[00:23:44] Speaker 03:
At no point did the County of San Bernardino say, before the matter was submitted to the jury, hey Judge, I understand your position respectfully, Your Honor, if I may just give you a brief specification for the basis of the Rule 50A motion.

[00:23:59] Speaker 00:
In fact, nobody... And the purpose of that would be to allow the planet to reopen if evidence was lacking.

[00:24:04] Speaker 03:
That's right, Your Honor, which is especially implicated here because what we have is a sufficiency of the evidence challenge posed by the County of San Bernardino.

[00:24:14] Speaker 03:
So if this motion had been timely made, certainly plaintiffs, the purpose of the Rule 58 requirement of specificity and notice would have been satisfied.

[00:24:24] Speaker 03:
Certainly, plaintiff would have been able to address any deficiency in the evidence and then the matter could have been submitted to the jury.

[00:24:32] Speaker 03:
But again, plaintiffs were deprived of the very purpose and essence of the Rule 50A specificity and notice requirement.

[00:24:40] Speaker 03:
And I would further note, Your Honors, when you look at the 1991 advisory committee notes, the advisory committee states that the purpose of that amendment to require specification of the basis and specification of the law was to prevent situations where,

[00:24:58] Speaker 03:
district courts were finding mechanisms and ways to allow untimely motions for a directed verdict and then subsequent motions for judgments notwithstanding the verdict.

[00:25:12] Speaker 03:
And that commentary is in the 1991 advisory committee notes.

[00:25:20] Speaker 03:
I would also note, Your Honors,

[00:25:23] Speaker 03:
Even if you can find some way of getting past the Rule 50A issue, we now have a Rule 50B issue.

[00:25:33] Speaker 03:
And what I mean by that is if you look at the record, what you see is that at ER 110, what the county did is after the close of evidence, after the jury rendered its verdict, at ER 110 the county submitted its

[00:25:49] Speaker 03:
It's first, it's rule 50A initial motion for JMOL.

[00:25:54] Speaker 03:
But what the county actually called it is a combined rule 50A and B motion.

[00:26:00] Speaker 03:
Now this combined rule 50A and B motion is the motion they made where they said that the plaintiff's Monell claim must fail as a matter of law because there was no evidence of a pattern of previous incidences.

[00:26:15] Speaker 03:
The argument that the county made in its initial motion at ER 110, its initial rule 50A JMOL motion, was not about a sufficiency of the evidence, was not about whether Title 15 could

[00:26:30] Speaker 03:
could suffice, it was simply that as a matter of law plaintiff's Monell claim failed because there was no showing of a pattern of previous incidences and that was required for any Monell claim.

[00:26:42] Speaker 03:
That was the only argument that the county itself said was a combined rule 50A and B motion.

[00:26:48] Speaker 03:
So when did they raise the sufficiency of the evidence argument?

[00:26:53] Speaker 03:
That is something that they have now raised mostly on appeal, Your Honor.

[00:26:57] Speaker 03:
So in the quote-unquote Rule 50B motion, there was now another shifting of the argument.

[00:27:03] Speaker 03:
At that point, they started to discuss Title 15.

[00:27:07] Speaker 03:
And as the county even concedes in its reply brief, that discussion of Title 15 was in response to the district court's statement that there was enough evidence to support the Monell claim and Title 15 could be a basis for deliberate indifference.

[00:27:23] Speaker 03:
So they themselves did not affirmatively raise the issue as a basis either in any

[00:27:28] Speaker 03:
quote unquote 50A, 50B combined motion, that was simply in response to what the district court was saying.

[00:27:36] Speaker 03:
Again, that violates the very purpose of rule 50B.

[00:27:39] Speaker 03:
Rule 50B is supposed to be a renewed motion that is based on the grounds, the argument, and the rationale in the 50A motion.

[00:27:47] Speaker 03:
So again, we have a shifting of the argument and new arguments that are being presented.

[00:27:54] Speaker 03:
I would further note your honors that at this point also another issue that we have is there was a this is a consolidated appeal there was an appeal by the county on.

[00:28:05] Speaker 03:
the court's order of attorney's fees.

[00:28:07] Speaker 03:
Apparently the county has now abandoned that argument because it raised no argument about the order on attorney's fees in its opening brief.

[00:28:15] Speaker 03:
Plaintiffs raised the issue in its answering brief noting that there was no argument about that.

[00:28:19] Speaker 03:
And in its reply brief, the county didn't even address that.

[00:28:22] Speaker 03:
So I do believe that any challenge to the order of attorney's fees is now abandoned.

[00:28:28] Speaker 03:
But going back to the forfeiture argument,

[00:28:33] Speaker 03:
Obviously, the court is well aware from the GoDaddy case and the Yeti case that what applies if a party does not make a sufficient rule 50B motion.

[00:28:43] Speaker 03:
In other words, they're bringing, oh, I'm so sorry.

[00:28:45] Speaker 00:
Yes, sir.

[00:28:46] Speaker 00:
Let me take you back to our argument.

[00:28:49] Speaker 00:
What's the evidence of knowledge by the county sufficient to establish deliberate indifference here?

[00:28:59] Speaker 03:
Yes, Your Honor.

[00:29:00] Speaker 03:
Viewing the evidence in the light most favorable to the verdict.

[00:29:06] Speaker 03:
Yes, Your Honor.

[00:29:07] Speaker 03:
And that was the testimony of plaintiff's expert Roger Clark, who said that there are portions of Title 15 and Title 24 that require a policy to be in place

[00:29:20] Speaker 03:
for the transmission of information regarding a detainee's condition through the facility and through the jail.

[00:29:29] Speaker 03:
That I would say, and of course, the county has now conceded that it is not challenging the accuracy of that testimony.

[00:29:38] Speaker 03:
And I see my time is up, Your Honors, if there are no further questions.

[00:29:43] Speaker 03:
All right, thank you.

[00:29:44] Speaker 03:
Thank you.

[00:29:55] Speaker 04:
Okay.

[00:29:58] Speaker 04:
So just a couple of things I want to say briefly.

[00:30:01] Speaker 04:
In terms of the Reeves case, that case remains good law and has been relied on many times since 1991.

[00:30:09] Speaker 00:
Is there a difference between the judge and Reeves interrupting counsel and saying you

[00:30:15] Speaker 00:
We can't make the motion now and with circumstances in this case, which is I'll allow you to make a motion later.

[00:30:21] Speaker 04:
And that's an order.

[00:30:21] Speaker 04:
In my view, no.

[00:30:23] Speaker 04:
I understand that there's room for disagreement there.

[00:30:27] Speaker 04:
And I'm not sure I've persuaded you, but I think it's a distinction without a difference.

[00:30:32] Speaker 04:
And I think that the trial court, the district court, made its own factual determination that it had pulled a Reeves here.

[00:30:38] Speaker 04:
That's what it had done.

[00:30:39] Speaker 04:
And that it was not fair to

[00:30:44] Speaker 04:
to prevent the county from challenging the sufficiency of the evidence based on the district court's own conduct.

[00:30:53] Speaker 00:
And in terms of the rule 50B... Before you get to 50B, what about the council's position that the rule 50A, the purpose of it, is to have the movement specify the areas of the law which are

[00:31:11] Speaker 00:
insufficient in the opposed opponent's case so that at that time there may be a supplemental motion to supplement evidence.

[00:31:22] Speaker 04:
Right.

[00:31:22] Speaker 04:
I don't dispute that that's the general purpose of that rule.

[00:31:25] Speaker 04:
But in this case, they didn't identify any other evidence that they would have submitted.

[00:31:29] Speaker 04:
They've done so on appeal, but they did not in opposing the Rule 50A motion.

[00:31:33] Speaker 04:
So to say that now, I mean, that's one I'm sort of talking about the little bit of gamesmanship aspect of this that I do think is present here.

[00:31:43] Speaker 04:
So the district...

[00:31:46] Speaker 02:
So it seems that what you're suggesting is that in response to what was discussed, and then there were jury instructions discussed, so the case was clearly going to the jury, even though there was no motion made, they were supposed to do a proffer to the district court of, by the way, in case they had made a motion, this is the evidence we would have presented?

[00:32:05] Speaker 02:
I mean, you're saying that's gamesmanship, that they didn't do that?

[00:32:07] Speaker 04:
No, that's not what I'm saying is gamesmanship.

[00:32:09] Speaker 04:
I'm saying some of the arguments on appeal reflect that.

[00:32:13] Speaker 04:
I'm not talking about that they were supposed to do that at the time.

[00:32:17] Speaker 04:
Although there is actually a treatise that's cited in the reply brief that says that's a good idea.

[00:32:23] Speaker 04:
So it's not that it's sort of mouse trapping.

[00:32:27] Speaker 04:
Sorry, I'm echoing a lot.

[00:32:28] Speaker 02:
Of the county here that I don't think the county was represented by council.

[00:32:33] Speaker 02:
It's not like the county was pro se I mean this is It seems hard to accept that the county was being mousetrapped It sort of puts on the onus on lawyers to know the rules obey courts

[00:32:49] Speaker 04:
and challenge them and say, I'm not going to follow your order.

[00:32:52] Speaker 04:
This is what's going to happen, Judge.

[00:32:53] Speaker 04:
And I can tell you, as a practical matter, that I work with a lot of lawyers who are in trial all the time.

[00:32:58] Speaker 04:
And district court judges are doing this all the time, because they need to keep tight control over their courtrooms, keep things at a reasonable clip, and they have so many other things going on.

[00:33:08] Speaker 04:
So this is happening routinely.

[00:33:09] Speaker 02:
So we would have to read that transcript and interpret it as the district court prevented the county from making... And that's what the district court determined, as a factual matter.

[00:33:17] Speaker 04:
And that factual finding is entitled to deference.

[00:33:21] Speaker 01:
I mean, I'm sympathetic to your position.

[00:33:23] Speaker 01:
I know you were in trial counsel, because I, you know, I know district court judge, he has a presence.

[00:33:26] Speaker 01:
I remember appearing before him when I was in private practice.

[00:33:29] Speaker 01:
He has a presence, and you generally listen to what he says.

[00:33:32] Speaker 01:
But, I mean, this is one of these fundamental rules, you know, in civil procedure, civil procedure in law school.

[00:33:38] Speaker 01:
You know, you have to make your

[00:33:39] Speaker 01:
JMOL before you file JNOV, I don't think I'm going to use the term JNOV anymore, but you have to do that.

[00:33:45] Speaker 01:
You just have to do it, even just get the word out no matter what.

[00:33:48] Speaker 01:
So it seems like a fundamental rule that, you know, we've accepted and it's in the text.

[00:33:54] Speaker 04:
I do think that there are some exceptions that this court has recognized, and I think that an exception here is appropriate.

[00:34:02] Speaker 04:
So if there are no other questions, I'm happy to submit.

[00:34:09] Speaker 02:
Thank you.

[00:34:10] Speaker 02:
Thank you.

[00:34:11] Speaker 02:
Council, thank you both for your arguments.

[00:34:12] Speaker 02:
Also thank you for your willingness to have us reschedule argument from tomorrow to today.

[00:34:18] Speaker 02:
And this case is submitted.

[00:34:45] Speaker 04:
This court for this session stands adjourned.