[00:00:01] Speaker 01: to please the court, Frank Wajor on behalf of the appellants, the Herrera appellants and the Huerta appellants. [00:00:11] Speaker 01: I'd like to address first the issues on the summary judgment motion under Rule 56 and then I'll turn to the Rule 37 issues dealing with the terminating sanctions. [00:00:28] Speaker 01: With regard to the rule 56 dealing with the county individual defendants, there was a case that I cited in my opening brief at pages 24 to 25, which was the Nissan Fire Insurance Company versus Fritz case at 210 F3rd, 1099. [00:00:47] Speaker 01: I cited the page number 1102, it's a Ninth Circuit 2000 case authored by Judge Fletcher. [00:00:55] Speaker 01: And it deals with the procedural requirements, obviously, under Rule 56. [00:01:00] Speaker 01: And I think it's fairly well established and undisputed that under Rule 56E, I believe 1, and Judge Fletcher expounded on Rule 56, a nonmoving party has no burden of even responding to a Rule 56 motion if the moving party doesn't meet its initial burden of production. [00:01:25] Speaker 01: And it's our contention that, and we did raise it at the district court, that the county individual defendants relying on the County of Los Angeles requests for admissions, that was the only evidence placed in the record for purposes of the summary judgment motion. [00:01:45] Speaker 04: So categorizing that as being the county rather than the county sheriffs, I take it as your point. [00:01:51] Speaker 01: I'm sorry, I have no control. [00:01:52] Speaker 01: Oh, I'm sorry. [00:01:53] Speaker 04: I apologize. [00:01:54] Speaker 04: You're saying that, well, these were actually propounded on behalf of the county rather than the deputy sheriffs. [00:01:59] Speaker 04: These are requests for admission, right? [00:02:02] Speaker 01: The county of Los Angeles was dismissed from the case two years earlier. [00:02:06] Speaker 04: Before these RFAs were even... [00:02:09] Speaker 01: Right. [00:02:09] Speaker 01: Under Monell liability, they were no longer a party. [00:02:12] Speaker 04: And under Rule 3... Well, so you had to understand it was actually being propounded on behalf of the deputy sheriffs, didn't you? [00:02:19] Speaker 01: But the evidence on behalf of the individual sheriffs, if I understand you correctly, it was based on the request for admissions propounded by the county. [00:02:31] Speaker 04: But you're saying they were propounded by the county, and I understand the title said propounded by the county. [00:02:37] Speaker 04: I get that. [00:02:38] Speaker 04: But at the time they were propounded, the county had been out of the case for two years, and it was the same council who had represented the county and was representing the sheriffs. [00:02:49] Speaker 04: So you had to recognize that was a scrivener's error on the title, that these were really by the county defendants. [00:02:56] Speaker 01: Well, I don't think it's our burden to recognize or not the face of the record is those requests for admissions were propounded by a non-party to the suit at that point. [00:03:07] Speaker 01: More than two years after the dismissal. [00:03:08] Speaker 04: Did you send an email saying, I don't understand why are you propounding RFAs on behalf of a non-party? [00:03:14] Speaker 01: Whatever the mistake was, the mistake was something the county had made, not us. [00:03:19] Speaker 01: And I don't see how that changes the structure under Rule 56. [00:03:24] Speaker 01: It just seems a little bit like... It's a noody. [00:03:27] Speaker 04: But it just seems a little like gamesmanship to say, well, haha, they made a mistake, I'm not going to say anything. [00:03:36] Speaker 01: But once again, if one reads Nissan Fire and reads Rule 56, it's very clear that we don't have that burden to respond or correct the county. [00:03:48] Speaker 01: The county was no longer a party. [00:03:50] Speaker 01: It's a novelty. [00:03:50] Speaker 01: And there are cases, although I admit that there are no circuit cases I could find. [00:03:56] Speaker 01: I did find a district court case out of the Midwest. [00:04:00] Speaker 01: If the court would like, I can give a site. [00:04:02] Speaker 01: It's not a published federal supplement case. [00:04:05] Speaker 01: I think it's called Moore versus United States. [00:04:10] Speaker 01: It's Westlaw 816, 8271. [00:04:13] Speaker 01: It's a 2005 case. [00:04:15] Speaker 01: But for whatever it is, it talks about the fact that a non-party that propounds requests for admissions is simply a nullity under Rule 36. [00:04:25] Speaker 04: Did that case involve a situation where the same council was representing the party who had been dismissed and the party who was still in the case and they had actually overlapping titles of county and county deputy sheriffs? [00:04:38] Speaker 01: But once again I don't see where that distinction makes any kind of a difference respectfully because once again the actual document itself that was propounded was propounded in the name of the county. [00:04:50] Speaker 01: Now if the county was making a mistake [00:04:54] Speaker 01: and they were intending to propound it on behalf of the individual defendants, certainly that was their responsibility, not mine. [00:05:04] Speaker 01: But I do want to point out that it's very interesting, if they were in fact propounding it on behalf of the individual defendants, I don't see why they did not list any of the individual defendants as a propounding party. [00:05:17] Speaker 04: Well, why would they propound them on behalf of the county two years after the county was dismissed? [00:05:22] Speaker 01: I think that is a good question and that's something to be asked of the county but not of the non-moving party. [00:05:28] Speaker 01: Once again, that's not our burden under Rule 56. [00:05:32] Speaker 01: And another point being that even if that is what, assuming arguing, [00:05:40] Speaker 01: that the county has a right to propound it or that's a mistake and it can be somehow overlooked. [00:05:47] Speaker 01: The parties to the proceedings being the children and one of them being William Ryan Herrera who is the older child who's not even a minor, I don't see how that could be binding on them. [00:06:00] Speaker 01: It was not propounded to the... Did you press that argument below? [00:06:03] Speaker 01: Pardon me? [00:06:04] Speaker 04: Did you press that argument below that it should not be binding as to the children? [00:06:09] Speaker 04: Could you point me in the record to where you pressed that argument in the district court? [00:06:13] Speaker 01: I believe that was in volume number three, and I think that was at pages. [00:06:20] Speaker 01: I don't have the exact page number, but it was in the record where I raised the issue that it was a non-party, that that was also the children. [00:06:36] Speaker 01: Rule 36 on its face states very clearly that a party to the proceeding, it only binds even the party that it's propounded to, but cannot bind it to any other proceeding. [00:06:49] Speaker 01: Certainly, I have never heard, I don't think there's any case law I know of, [00:06:53] Speaker 01: and perhaps I respectfully can be corrected, that a other party in the proceeding is somehow bound by the request for admissions. [00:07:02] Speaker 01: So at the minimum, it would seem to me, even assuming arguing your honor's argument, it still doesn't bind the children. [00:07:11] Speaker 01: Turning to the question of the city or the summary judgment motion on the city, which is, I think, a much more difficult, to my mind, a much more difficult question, and I'd like to talk about the England Reservation. [00:07:25] Speaker 01: I recognize that an England Reservation can bind in certain circumstances, even claim [00:07:32] Speaker 01: And I believe counsel cited the San Remo Hotel case versus City of County San Francisco. [00:07:41] Speaker 01: It was a case that went up, I think, 2005 or so to the US Supreme Court. [00:07:46] Speaker 01: Once again, Judge Fletcher threw out the case before it went up. [00:07:52] Speaker 01: I know the procedural history was that they had originally filed certain state law claims in this court and then it was dismissed under Pullman abstention. [00:08:04] Speaker 01: They went back to state court. [00:08:06] Speaker 01: They litigated their inverse condemnation claim under the California Constitution all the way up to the California Supreme Court. [00:08:13] Speaker 01: They lost four to three. [00:08:15] Speaker 01: They came back. [00:08:16] Speaker 01: They then argued to the [00:08:17] Speaker 01: circuit that we did an England reservation, Judge Fletcher said, and I think this was the salient point, that since you exposed your takings claim to the state court and the state constitution under the takings clause is congruent to the Fifth Amendment Takings Clause, it was the same as if you had exposed your federal claim and therefore claim conclusion applied. [00:08:45] Speaker 01: It went up to the U.S. [00:08:47] Speaker 01: Supreme Court, and it was, I think, an 8-0 or 9-0 decision authored by Justice Stevens, late Justice Stevens. [00:08:55] Speaker 01: But that's not the case here. [00:08:57] Speaker 01: We never exposed any of the federal claims, nor made any of the arguments, and I don't know of anything that's been pointed out in the record where we exposed any of the federal claims. [00:09:09] Speaker 04: Did the state court find that the motel was a nuisance? [00:09:13] Speaker 04: Do the state court find that the motel was a nuisance? [00:09:16] Speaker 01: Yes, absolutely. [00:09:18] Speaker 04: And so, at least from an issue-proclusion standpoint, that issue... I don't deny that. [00:09:23] Speaker 01: They did. [00:09:23] Speaker 01: And there had been multiple code violations that the state court found, and that went up on appeal, and the Court of Appeals affirmed it. [00:09:30] Speaker 01: However, I don't think that ends the analysis. [00:09:32] Speaker 01: I do want to point out one point. [00:09:34] Speaker 01: There's a case that I believe Judge Fitzgerald, who is the district court judge in this case, pointed out in his order [00:09:42] Speaker 01: the keystone bituminous cold case versus denibinictus which is a case authored came out of the US Supreme Court I think in 2005 or so and it was a five to four decision and it talked about the fact that a nuisance property has no right [00:09:59] Speaker 01: to a takings claim, and it based it on an 1850s or 1855 US Supreme Court case, Muggler versus Kansas. [00:10:09] Speaker 01: Very interestingly, and I take the position, I know this court cannot overturn it, but I will state it for the record, it was a five to four decision, the dissent was authored by the late Chief Justice Rehnquist, I believe the late Justice O'Connor of Scalia, and if I'm not mistaken, Powell, [00:10:27] Speaker 01: was still sitting on the court and they joined in on the dissent and they argued that true, a nuisance case limits in some sense perhaps the takings claim, but the scope of the relief is still subject to the takings clause. [00:10:46] Speaker 01: So in other words, the Penn Central test still applies potentially to a nuisance property because if a property is somehow, the government goes and imposes two harsh conditions on the property in some sense as we had claimed here by closing it and closing it without even a hearing or procedure due process hearing before it even went to court, that might be a taking, might be a temporary taking. [00:11:12] Speaker 01: So my position is, is that that doesn't end the analysis. [00:11:17] Speaker 01: I'm not going to concentrate on the substantive due process issue, but I do want to say on the procedural due process issue, Judge Fitzgerald said that I, and Judge Fitzgerald recognized there was a case he cited that I've always cited in other cases. [00:11:31] Speaker 01: Clements versus Weshaw Board Authority, it's a case out of this circuit. [00:11:36] Speaker 01: and it talks about a bias proceeding has no effect. [00:11:40] Speaker 04: Can you tell me a little bit more about your First Amendment argument? [00:11:45] Speaker 04: I guess I just don't see the petitioning activity. [00:11:48] Speaker 01: So the First Amendment argument, I believe there was petitioning activity, clear petitioning activity by Mr. Herrera. [00:11:56] Speaker 04: What was it? [00:11:57] Speaker 04: What was the petitioning activity? [00:11:59] Speaker 01: He met with the city manager, he met with the city officials, he met with the police department officials. [00:12:04] Speaker 04: But I thought you said in your brief the petitioning activity that gave rise to your claim was refusing the search. [00:12:12] Speaker 01: Pardon me? [00:12:13] Speaker 04: I thought you said in your brief that the petitioning activity on which you were relying for your retaliation claim was refusing to consent to the search. [00:12:21] Speaker 01: To what? [00:12:22] Speaker 01: To the extent that they had asked to see his records and to see his motel records and he refused to do that without having a warrant. [00:12:32] Speaker 04: So refusing to turn over records is petitioning activity in your view? [00:12:36] Speaker 01: I think standing on his right when he meets with them and they request to see it and he denies them the right, standing on his constitutional rights, I think that's within the scope. [00:12:46] Speaker 01: The petition clause is very, very broad. [00:12:48] Speaker 01: It applies to the administration. [00:12:49] Speaker 04: I guess I just wonder if the Fourth Amendment would be a better locus for that particular right, either asserting the right not to be searched without a warrant. [00:12:57] Speaker 04: It just seems like that's located in the Fourth Amendment, not the First Amendment. [00:13:01] Speaker 01: So if I understand the, Your Honor, correctly, the right to deny the motel records would not fall within the Fourth Amendment? [00:13:11] Speaker 04: Would, I think. [00:13:12] Speaker 04: Better within the Fourth than the First. [00:13:14] Speaker 04: I guess I don't understand it as a First Amendment argument. [00:13:16] Speaker 01: No, I think that you can have multiple under Sodel County versus Cook, which is a 1994 US Supreme Court case authored by Justice Scalia, you can certainly have multiple claims [00:13:27] Speaker 01: that fall within different constitutional provisions. [00:13:30] Speaker 01: I would say under the Fourth Amendment claim, I litigated a case. [00:13:34] Speaker 01: I was lead counsel in the Patel, City of Los Angeles, Patel case, which dealt with motels. [00:13:40] Speaker 01: That's a case at 576 U.S. [00:13:43] Speaker 01: 409 2015 that clearly protected, and it went up on Bach before it went up to U.S. [00:13:49] Speaker 01: Supreme Court. [00:13:50] Speaker 01: I argued it on Bach in 174. [00:13:53] Speaker 01: that motel records are clearly protected under the Fourth Amendment and require some kind of prejudicial process. [00:14:01] Speaker 01: Do you want to reserve time? [00:14:02] Speaker 01: Yes, I do. [00:14:04] Speaker 01: I just want to say under Rule 37 very, very briefly, I do believe there was good cause with my wife being in the hospital, but even if there wasn't, and I think Judge [00:14:14] Speaker 01: As I understand it, a terminating sanction is the harshest sanction. [00:14:18] Speaker 01: There could have certainly been lesser sanctions under the circumstances, perhaps sanctioned myself, evidentiary sanctions, but not to throw the whole case. [00:14:27] Speaker 01: And I would respectfully submit it was an error. [00:14:31] Speaker 01: Thank you. [00:14:46] Speaker 00: Good morning, Your Honors, and may it please the court. [00:14:49] Speaker 00: My name is Valerie Escalante-Trosch, and I represent the city of Palmdale and the individual city defendants. [00:14:57] Speaker 00: Thank you for your time this morning. [00:14:59] Speaker 00: I think this case needs to be set with the backdrop of the state court action, particularly on the issue preclusion argument. [00:15:07] Speaker 00: The state court action involved the Herreras and their agents. [00:15:13] Speaker 00: They were an agent of an LLC that owned the property. [00:15:17] Speaker 00: that the state court action determined that there were violations of law and nuisance conditions as this court pointed out. [00:15:27] Speaker 00: The state court action adequately looked at those issues and determined that there were these violations, that the city had properly issued this notice and order identifying over 247 different violations of law. [00:15:43] Speaker 00: The court also acknowledged that the city had issued a notice to vacate under the applicable state laws that were applied. [00:15:51] Speaker 00: With that backdrop, then the federal court case. [00:15:55] Speaker 00: In the federal court case, as to the issue preclusion, the discussion on San Remo Hotel is applicable. [00:16:03] Speaker 00: The court there looked at the issue. [00:16:06] Speaker 00: of whether issue preclusion, this court pointed it out, issue preclusion, not claim preclusion, not on the actual adjudication of the law, but on factual predicates that were necessary in the state court action, does that bind? [00:16:19] Speaker 00: And it does. [00:16:20] Speaker 00: There is a whole history that the court, the Supreme Court, goes through on the importance of giving credence and upholding the full faith and credit clause [00:16:29] Speaker 00: and that discussion is critical for this analysis. [00:16:32] Speaker 04: So even if we assume issue preclusion as to the finding of nuisance and or the finding of the various code violations, does it per se follow that no pre-deprivation hearing is required or does it turn to some extent on the factual nature of the violations at issue and whether they rise to the level of an emergency, I guess, in particular? [00:16:55] Speaker 00: Thank you. [00:16:56] Speaker 00: So as to the question of pre-deprivation hearing, that speaks to the 14th Amendment procedural due process. [00:17:02] Speaker 00: First, I'm going to point out there wasn't much argument raised on that issue. [00:17:05] Speaker 00: But going to that argument in any event, there needs to be, in order for a pre-deprivation hearing, some non-emergency, correct, in order to afford that time. [00:17:16] Speaker 00: There's two points to this, two salient points. [00:17:18] Speaker 00: The first is that under the uniform [00:17:22] Speaker 00: code, the housing code, the uniform code for the abatement of dangerous buildings, that state law, which was applied for the notice to vacate, never required a pre-hearing before issuing that notice. [00:17:36] Speaker 00: So if this court were to decide that some pre-deprivation hearing was required, that would circumvent the state law directly on this point that authorizes building officials [00:17:47] Speaker 00: to be able to vacate properties throughout the state of California when there is a finding of those urgent circumstances. [00:17:55] Speaker 00: Contemporaneous with that, with their issuance of a notice to vacate. [00:17:59] Speaker 04: But I think that turns on there being urgent circumstances. [00:18:01] Speaker 04: Correct. [00:18:02] Speaker 04: You can't have a state law that violates the Constitution. [00:18:05] Speaker 04: So if the Constitution requires urgent circumstances, [00:18:08] Speaker 04: State law would also have to require urgent circumstances, right? [00:18:12] Speaker 00: Right, and that speaks to the next point for the NNO. [00:18:14] Speaker 00: When the notice and order was issued contemporaneously, in that notice and order, the building official found the urgent circumstances, that there were 247 critical violations of law on this property. [00:18:26] Speaker 04: The building official found or the state court found? [00:18:29] Speaker 00: Both. [00:18:29] Speaker 00: So the building official with the code enforcement official issued this notice and order. [00:18:35] Speaker 00: That notice and order was contemporaneous with the notice to vacate back in 2016. [00:18:40] Speaker 00: When the state case, the receivership case was litigated, a predicate to appointing a receiver is the issuance, the proper issuance and blessing of the court that the NNO, that notice and order was properly issued and made adequate findings. [00:18:56] Speaker 00: And so the court also independently reviews that NNO in the state court action and says, I agree. [00:19:01] Speaker 00: There are substantially dangerous conditions. [00:19:03] Speaker 00: They were given notice and were not able to remediate those conditions. [00:19:07] Speaker 00: Therefore, a receiver is appointed. [00:19:09] Speaker 00: So to your point on the emergency, there were two decisions that were made. [00:19:13] Speaker 00: First, on the staff level, that they are authorized to make those decisions under the health and safety code. [00:19:20] Speaker 00: Then it was also reviewed and looked at by the state court. [00:19:24] Speaker 04: But the staff level decisions wouldn't be the subject of issue preclusion in the federal court, right? [00:19:30] Speaker 00: I think it wouldn't, you're right. [00:19:32] Speaker 00: But I add that detail because we're looking at this from the context of if you were to choose otherwise and say there is this pre-deprivation hearing that is necessary, that does circumvent staff's ability [00:19:46] Speaker 00: to make these fundamental findings every time that there is some type of urgency and have to wait then for a state court action. [00:19:54] Speaker 00: That's not what the state law envisions. [00:19:57] Speaker 00: And I understand your argument that if there's some constitutional violation, they shouldn't be able to do that. [00:20:01] Speaker 00: I get that. [00:20:02] Speaker 00: But in this circumstance, even putting aside the state, the staff level decision, the court looked at that. [00:20:09] Speaker 00: The court looked at that notice in order that was contemporaneous with the notice to vacate and said, [00:20:13] Speaker 00: This is valid. [00:20:15] Speaker 00: And so that was litigated and looked at already with the state court action. [00:20:19] Speaker 04: In terms of the violations that occurred here, in your view, what would be an example of one that was like an urgent situation that we can't wait for a pre-deprivation hearing? [00:20:29] Speaker 04: Give me just an example or two. [00:20:31] Speaker 00: Sure, Your Honor. [00:20:32] Speaker 00: There were numerous violations related to mold conditions. [00:20:36] Speaker 00: There were numerous violations with respect to just substandard living conditions that the individuals were living at. [00:20:43] Speaker 00: I believe there was also unpermitted construction at the site. [00:20:47] Speaker 00: And so there were individuals and children living on site that those violations could not sustain them living there on site. [00:20:59] Speaker 00: Going back to the issue preclusion argument, it is imperative to recognize that the court did look at these. [00:21:05] Speaker 00: And so the court, of course, didn't address the legal takings claim. [00:21:10] Speaker 00: But those facts that were decided, that the property was a nuisance, that the property was substantially dangerous, endangering occupants, neighbors, and the community, that's the finding that the court made in its judgment. [00:21:22] Speaker 00: as well as the receivership order that was also upheld on appeal, all of those issues that were also litigated with Mr. Weiser representing the parties in that case, those findings, those factual findings [00:21:37] Speaker 00: our preclusion for any takings claim because the city didn't do any takings when it issued the notice to vacate. [00:21:44] Speaker 00: The court decided independent of the city with a receiver making a recommendation on what to do with the property and the court blessed it. [00:21:54] Speaker 00: That cannot be a taking requiring compensation. [00:21:57] Speaker 00: And in fact in the state case when you look at the records [00:22:00] Speaker 00: The motel owner represented also with the agent, Mr. William Herrera, had the opportunity to step in and provide a remediation plan and also pay for the property to avoid what was happening in the receivership and was unable to do so. [00:22:17] Speaker 00: So they actually also had those opportunities to avoid any claims, so to speak, of a taking when there is no taking effect. [00:22:24] Speaker 04: And I think the terminating sanction issue is an issue for your client, right? [00:22:30] Speaker 04: Correct. [00:22:30] Speaker 04: So could you just use some of your remaining time to sort of fill out your views on that terminating sanction and whether the court should have considered lesser sanctions before imposing a terminating sanction? [00:22:40] Speaker 00: Absolutely. [00:22:41] Speaker 00: The court did consider lesser sanctions. [00:22:42] Speaker 00: There were several years prior an order compelling discovery sanctions that were already issued in the case. [00:22:50] Speaker 00: And so what happened in this case is that plaintiffs, the appellants here, did not [00:22:57] Speaker 00: Disclosed evidence and tried to use that evidence on MSJ on in opposition for the first time in in the opposition photos and It looked like a screenshot of video And also some conflicting testimony as to what happened some incendiary assertions as to being held at gunpoint [00:23:17] Speaker 00: the city's evidence showed that the city's officials don't even have access to guns. [00:23:23] Speaker 00: They're code officers and building officers. [00:23:25] Speaker 00: It couldn't have been and wasn't them involved in those facts. [00:23:28] Speaker 00: The court agreed to strike that. [00:23:30] Speaker 00: But the court nonetheless gave a lifeline for that remaining Fourth Amendment claim. [00:23:34] Speaker 00: It wasn't subject to the court's underlying motion for summary judgment. [00:23:38] Speaker 00: The court said, we're going to open up discovery again for you, Mr. Weiser, and your clients. [00:23:42] Speaker 00: We're going to give you two additional months, disclose that evidence, sit for depositions, [00:23:47] Speaker 00: And also you can take depositions if you'd like as well. [00:23:50] Speaker 00: That was in the court's February 2024 order. [00:23:53] Speaker 00: As we've stated on the court below, we have every sympathy for Mr. Weiser and his family and the conditions. [00:23:58] Speaker 00: But during that two-month period, we noticed their depositions starting early March. [00:24:04] Speaker 00: Two months passed. [00:24:05] Speaker 00: We were following up approximately every week, week and a half, and we independently continued those depositions in order to try to accommodate, but we were not getting a response. [00:24:16] Speaker 00: We got one phone call on April 17th that said I couldn't, that the dates weren't available. [00:24:21] Speaker 00: Nothing further until the night before the deadline for that order. [00:24:27] Speaker 00: And so it absolutely was not followed. [00:24:30] Speaker 00: And that's the critical order that was not followed to support terminating sanctions. [00:24:35] Speaker 00: And warnings were given previously because there were already discovery issues that were involved in the case. [00:24:42] Speaker 00: And then proceeding that, you'll see in the record, [00:24:44] Speaker 00: Even the year before, we had spent an entire summer noticing depositions that they never appeared for and never coordinated. [00:24:51] Speaker 00: Unless there's any further questions, I see my time is up. [00:24:54] Speaker 02: Thank you so much. [00:24:55] Speaker 04: We'll hear from a co-counselor. [00:25:17] Speaker 03: If it please the court, my name is Craig Miller from the firm of Seki Nishimura and Watasi. [00:25:24] Speaker 03: I represent the individual county defendants who are Deputy Dana, Deputy Jacobs, Deputy Munoz, Deputy León, [00:25:35] Speaker 03: RCA condo, probably glue that one, Deputy John Gallagher, Deputy Sorrow, Deputy Miles, Deputy Diaz, and Deputy Waldron. [00:25:48] Speaker 03: I would like to start off with if the court has any questions, I'd answer them. [00:25:53] Speaker 03: This is a fairly straightforward case as to my client. [00:25:57] Speaker 04: So your request for admission didn't list any of the names that you just read off for the court, right, in terms of who was propounding the request for admission? [00:26:06] Speaker 03: That is correct. [00:26:07] Speaker 03: I believe it asked, no, admit no LASD deputy, something along those lines. [00:26:14] Speaker 04: But I'm just saying in the title of who was propounding them, your colleague across the V is right, that who was listed was the county, not the deputies, right? [00:26:22] Speaker 03: That is correct, Your Honor. [00:26:23] Speaker 03: I was thinking about that question. [00:26:25] Speaker 03: And I think plaintiff were to be right, it would be a nice trick. [00:26:32] Speaker 03: If we had one person propound all the discovery, then under his theory, he could just dismiss that defendant, whether they noticed the deposition or answered on behalf of everybody and say, King's X, you have no responses to discover that person's a non-party now. [00:26:51] Speaker 04: Well, but when you propounded these requests for admission, the county wasn't a party, right? [00:26:57] Speaker 04: You're talking about a different situation where somebody propounds discovery, later goes out of the case, that doesn't make the discovery go away. [00:27:03] Speaker 04: That seems right, but a non-party doesn't get to propound requests for admission in a case, right? [00:27:08] Speaker 03: Correct. [00:27:11] Speaker 03: As the court pointed out, there was a Scrivener's error. [00:27:15] Speaker 03: We represented both the county and the individuals. [00:27:18] Speaker 03: We generally referred to them as the county defendants. [00:27:23] Speaker 03: It was a little interesting as I went through this case that they were called subsequently the county individual defendants. [00:27:33] Speaker 03: However, I also note that Mr. Weiser knew who he was dealing with. [00:27:40] Speaker 03: He knew who was following up on the meet and confers. [00:27:45] Speaker 03: He knew what the parties were, so he was not exactly caught blindsided by this. [00:27:52] Speaker 04: And with regard to the request for admission themselves and why they led to summary judgment below if they were deemed admitted, it seems like one of the requests for admission was something along the lines of nobody from the county violated so-and-so's fourth, the Herrera's Fourth Amendment rights or something like that, right? [00:28:09] Speaker 04: It was sort of a legal conclusion. [00:28:13] Speaker 04: Dressed up as a request for admission. [00:28:15] Speaker 03: Which I understand is allowed. [00:28:17] Speaker 03: You can ask facts or admissions of law and it was not only to the Fourth Amendment, but it was to every different amendment that he elected. [00:28:26] Speaker 04: Sure. [00:28:26] Speaker 04: I was just giving the example. [00:28:29] Speaker 04: So your argument is just you can request an admission with regard to the law. [00:28:33] Speaker 04: Is that right? [00:28:35] Speaker 03: That's my understanding, yes. [00:28:36] Speaker 04: Okay. [00:28:36] Speaker 04: And what about with respect to some of these things were directly contrary to things that have been alleged in the complaint, right? [00:28:42] Speaker 04: I mean, so you would have a complaint allegation that these people were here on this date and you would have a request for admission, admit that those people were not there on that date, right? [00:28:52] Speaker 04: You're directly contradicting some of the allegations in the complaint with your request for admission. [00:28:56] Speaker 03: Yes. [00:28:57] Speaker 03: We were trying to flesh out facts. [00:28:59] Speaker 03: Obviously, the complaint says a lot of things. [00:29:03] Speaker 04: Okay. [00:29:05] Speaker 04: What was the state of the actual record? [00:29:07] Speaker 04: So let's take that, I think, as one example. [00:29:09] Speaker 04: So the allegation says on November 15th or whatever, these LA County deputies were present at the property, and the request for admission says, admit that on that date, they weren't actually there. [00:29:23] Speaker 04: What does the record tell us about whether they were or weren't there that day? [00:29:26] Speaker 03: I believe the records fairly devoid of that type of detail because of the manner in which we moved for summary judgment. [00:29:34] Speaker 03: It was based on the RFAs and being deemed admitted in that alone. [00:29:40] Speaker 04: So in response to that, Mr. Weiser didn't come forward with evidence saying, it's odd. [00:29:45] Speaker 04: I mean, I get what you're saying about the request for admission, but here's a picture of these guys standing there on that date or something like that. [00:29:51] Speaker 03: He never responded materially to [00:29:59] Speaker 03: in response to the city's interrogatories and requests to produce. [00:30:07] Speaker 03: I did want to address briefly his failure to oppose the MSJ under Rule 56F. [00:30:15] Speaker 03: The court on its own could have looked at the state of the record, saw the request for admissions had been deemed admitted and entered judgment even on its own after identifying for the party's material facts that may not be genuinely in dispute. [00:30:33] Speaker 03: So there was ample grounds to do it. [00:30:35] Speaker 03: My last comment would be, [00:30:37] Speaker 03: Even if he somehow got the MSJ overturned, he did not move on appeal or they did not move on appeal to set aside the granting of the deemed admissions or the denial of his ex-party. [00:30:51] Speaker 03: So he hasn't even cleared the first hurdle to get to the second. [00:30:57] Speaker 03: If the court has no further questions, I would submit. [00:31:00] Speaker 02: Okay. [00:31:00] Speaker 02: Thank you. [00:31:03] Speaker 02: Oh yeah. [00:31:04] Speaker 02: Council, did you want, you mentioned you were having some hearing issues. [00:31:08] Speaker 02: Would you care, we've got some headphones for you if you'd like. [00:31:11] Speaker 02: Yeah You mentioned you're having some hearing issues. [00:31:15] Speaker 01: No. [00:31:15] Speaker 01: No, I'm fine. [00:31:16] Speaker 02: I'm fine Okay, because we have if you need it. [00:31:18] Speaker 02: We have some nothing could gentle. [00:31:20] Speaker 02: Yeah. [00:31:21] Speaker 02: Yeah. [00:31:21] Speaker 02: Yeah, okay. [00:31:21] Speaker 01: I'll be very brief with regards to Council for the city's my same colleagues council arguing about the record in the state case of the nuisance violations and that sort I think your honor pointed out very [00:31:37] Speaker 01: the issue about the pre-deprivation hearing and whether it was an emergency. [00:31:43] Speaker 01: There were two cases I cited in my opening brief, one in particular, which I'm very, very familiar with because I had a companion case in this circuit that was published in 1996. [00:31:54] Speaker 01: Armaderas v. Penman, it was an on-bound case at 75 F3rd, 860. [00:31:59] Speaker 01: I litigated the companion case, Patel versus Penman, [00:32:02] Speaker 01: Penman was James Penman, the former elected city attorney of San Bernardino, 103 F. [00:32:08] Speaker 01: 3rd, 868, 1996. [00:32:11] Speaker 01: I think the Armaderas case was 1995. [00:32:16] Speaker 01: That case is very clear that the emergency exception under the due process clause is a very, very narrow exception and cites cases from the Supreme Court that it's usually when you have dangerous chemicals on the property, a fire on the property, but it doesn't just broadly sweep in everything. [00:32:35] Speaker 01: And besides that, our materials is also very clear, based on Supreme Court authority, even if there was an emergency, they still have to provide a post deprivation hearing, which was not provided here. [00:32:47] Speaker 01: And we argued that that January 23rd hearing was not the required post deprivation hearing. [00:32:53] Speaker 01: Judge Fitzgerald said there was no evidence. [00:32:55] Speaker 01: It was a bias proceeding so that the post Yeah, you know the evidence that it wasn't a proceeding was a bias right? [00:33:03] Speaker 01: I think it was reasonable inference. [00:33:04] Speaker 01: It was bias we came there I was there we came there we didn't talk about whether there were in fact violations or the scope of the violations or the remedies the only thing the city wanted to know is did you correct the violations according to them and [00:33:19] Speaker 01: So I think that just that on itself, on its face, raises at least a reasonable inference. [00:33:25] Speaker 04: Understanding you're already a little over on your time, I'd like to ask one question, and that is your response to your colleagues on behalf of the deputy sheriffs that you did not appeal the district court's decision that denied the ex parte request to withdraw the deemed admissions. [00:33:43] Speaker 01: Well, I think, once again, it's a distinction without a difference because of the fact that the face of the record, once again, I don't think the county, regardless of whether I asked to withdraw and I didn't appeal, the county never met their, the individual defendants, county individuals never met their burden. [00:34:02] Speaker 01: They just never met the production requirement. [00:34:05] Speaker 04: Well, if the requests for admission were deemed admitted, they met their burden, didn't they? [00:34:09] Speaker 01: If it's a non-party, it's a nullity under Rule 36. [00:34:13] Speaker 01: That's my argument. [00:34:14] Speaker 01: And once again, Rule 36A1 ties in not only the fact that it has to be a party to a party, but it says that the scope of what can be discovered is under Rule 26A1, [00:34:26] Speaker 04: And that talks about... So if we were to reject that argument, then you would agree you didn't appeal the ex parte? [00:34:34] Speaker 01: Right. [00:34:34] Speaker 01: It just simply is to know we didn't meet a burden. [00:34:37] Speaker 01: We didn't have to meet a burden because there was nothing that was met by the other side. [00:34:41] Speaker 01: I do want to point out one thing on factually and it'll be very, very brief. [00:34:44] Speaker 01: I know I may have extended my time. [00:34:47] Speaker 01: Judge Fitzgerald talked about this issue of disclosure. [00:34:50] Speaker 01: I want to point out that Matthew Silver of Silver and Wright, who litigated this case initially defending it, was also the attorney who prosecuted the case in the state court. [00:35:03] Speaker 01: He eventually left this case, my esteemed colleague took over, but he left to their firm. [00:35:10] Speaker 01: He is, at least at the time of the hearing, a part of their firm. [00:35:16] Speaker 01: He took all that with him and he gave a declaration. [00:35:19] Speaker 01: I think that's in volumes three through five of this record. [00:35:23] Speaker 01: He gave an extensive declaration of all his knowledge in the state court proceeding. [00:35:28] Speaker 01: These proceedings were intertwined in that respect. [00:35:31] Speaker 02: You're over. [00:35:33] Speaker 02: We'll take a look at it. [00:35:33] Speaker 02: Thank you very much. [00:35:34] Speaker 02: Thank you. [00:35:35] Speaker 02: Thank you to all counsel for your arguments in this case and the case is now submitted.