[00:00:01] Speaker 00:
Now, I see here from my calendar notes that the county and CAPMC have elected to split seven and a half minutes.

[00:00:11] Speaker 00:
I'm not sure that we can put a half minute.

[00:00:13] Speaker 00:
Oh, we can?

[00:00:14] Speaker 00:
I've never.

[00:00:15] Speaker 00:
I was going to round up for your benefit, so let's go ahead and do that.

[00:00:19] Speaker 00:
I've never had such a request to split a minute before.

[00:00:22] Speaker 00:
Well, we rounded up to eight minutes when appellees council stand up then.

[00:00:28] Speaker 02:
Good morning.

[00:00:28] Speaker 02:
Precision timing, Your Honor.

[00:00:30] Speaker 02:
Good morning.

[00:00:31] Speaker 02:
May it please the Court, my name is Timothy Scott on behalf of the appellants, the estate of Callie Gehry, as well as her surviving minor children.

[00:00:42] Speaker 02:
We're here on appeal because we allege that the first amended complaint before the District Court and the Magistrate Court did in fact state plausible claims for relief that

[00:00:55] Speaker 05:
Certainly at the pleading stage should have sufficed to allow the case to go forward You make a number of arguments in the pleads and so I want to focus you on on on one that that That as I think you might be making but I'm not sure and that's why I want you to clarify this for me today What I believe you might be alleging is that the defendants place Callie in danger by sending her to a clinic known to give a

[00:01:20] Speaker 05:
appointment information to the abuser and did nothing to remedy it.

[00:01:25] Speaker 05:
That's what I see you might be alleging.

[00:01:28] Speaker 05:
But attach the allegation to that sort of claim.

[00:01:33] Speaker 05:
I mean, what did you allege in the complaint that satisfies that?

[00:01:39] Speaker 05:
How is it that they did that?

[00:01:42] Speaker 02:
Well, the truth is that we don't have specific facts that they had specific notice.

[00:01:48] Speaker 05:
Well, our bare allegations enough, counsel.

[00:01:51] Speaker 02:
Well, we did allege constructive knowledge.

[00:01:54] Speaker 02:
We did allege that they should have known, even if they did not know, because of the heightened risk of not just danger to abused persons.

[00:02:05] Speaker 00:
That's the problem, counsel.

[00:02:06] Speaker 00:
First, I want to acknowledge that the facts are very tragic and sympathetic.

[00:02:12] Speaker 00:
But when we're talking about sufficiency of the allegations, you're going on a state

[00:02:15] Speaker 00:
created danger claim and so I don't think it's enough to just say that the shelter helped her secure the medical appointment for example because

[00:02:30] Speaker 00:
There's the but for test that but for their conduct and helping her leave the house and stay in the shelter and but for their assistance in getting the appointment.

[00:02:42] Speaker 00:
She wouldn't have faced the same danger.

[00:02:45] Speaker 00:
And so I think given the way you crafted your theories in this case, I don't think the bare bones allegation of just helping her secure shelter and the appointment is enough.

[00:02:56] Speaker 00:
And then as to your point about

[00:02:59] Speaker 00:
the actual and constructive knowledge, there is that bare allegation there.

[00:03:04] Speaker 00:
But as I'm sure you know, under Twombly and Iqbal, we don't accept legal conclusions as true, and because their entities, just like any institution or agency or county, their knowledge can only be through their agents and employees.

[00:03:21] Speaker 00:
And I didn't see any allegations of employees, okay, so you can say the county knew or should have known, but how?

[00:03:29] Speaker 00:
Even for rule eight purposes, for an entity to have knowledge, there has to be some allegation that a person and not an entity or county is responsible for that.

[00:03:40] Speaker 00:
So can you help me with those questions?

[00:03:42] Speaker 02:
Yes, Your Honor, I will try.

[00:03:44] Speaker 02:
I don't know that we only may bear factual allegations.

[00:03:49] Speaker 02:
Some of the specific factual allegations that we had are the specific notice about this particular third party, the enraged husband, and the specific threats that he had made against Ms.

[00:04:03] Speaker 02:
Gary.

[00:04:04] Speaker 00:
Right, I didn't mean to suggest that there weren't more specific allegations as to what she faced.

[00:04:10] Speaker 00:
I'm talking about specific allegations as to the county and CAP MC's role.

[00:04:17] Speaker 02:
Right, so CAP MC was apparently run at that time or at least had a supervisor

[00:04:23] Speaker 02:
someone in a supervisor capacity by name of Tina Rodriguez.

[00:04:28] Speaker 02:
And Ms.

[00:04:28] Speaker 02:
Rodriguez was the person that accompanied Ms.

[00:04:31] Speaker 02:
Gary to a restraining order hearing in which she herself perceived Mr. Gary making threats, being violent, would have perceived firsthand an enhanced risk of him carrying out the retribution that he had already promised and that CAPMC was aware of.

[00:04:50] Speaker 02:
It was after that, knowing that there was that specific risk from him, that we allege that they sought health care treatment off-site at this clinic, and that they transported Ms.

[00:05:07] Speaker 02:
Gary in a way – in a easily recognizable van with an unarmed security person.

[00:05:15] Speaker 02:
and also a person who was six months on the job and just not in a position to provide any meaningful protection to Ms.

[00:05:23] Speaker 02:
Gary.

[00:05:24] Speaker 02:
They did make a deliberate choice to do that.

[00:05:26] Speaker 02:
Now, did they know that on that specific day and time, Mr. Gary would be there?

[00:05:33] Speaker 05:
Again, without this- Did they have any policy?

[00:05:35] Speaker 05:
I mean, how do you establish the policy?

[00:05:37] Speaker 02:
So the policy is tricky for us, honestly, particularly with CAPMC.

[00:05:42] Speaker 05:
That's kind of an important part, counsel.

[00:05:44] Speaker 02:
Well, and the reason is, your honor, CAPMC is a government actor for purposes of 1983.

[00:05:51] Speaker 02:
At least that's what the court below found, although I know they challenged that on appeal.

[00:05:58] Speaker 02:
We think properly so, that they were at least standing in the shoes of a public entity.

[00:06:02] Speaker 02:
But unlike a classic or an actual public entity, they're not susceptible or responsive to PRA requests, for example.

[00:06:14] Speaker 02:
We can't do records requests.

[00:06:15] Speaker 02:
We don't have the same government transparency to see what exactly their policies, their training programs and such.

[00:06:23] Speaker 05:
Contrast that to a police department, for example, where their policies and procedures and their use of force... Well, I understand how it's frustrating and maybe difficult, but we have to find that, though, in this case, that they had a policy.

[00:06:40] Speaker 02:
That's one way or the absence of a policy.

[00:06:43] Speaker 02:
And I say it that way because there is also supervision and there is also lack of training.

[00:06:49] Speaker 02:
So it is true that we're sort of trying our best to extrapolate backwards from the result and from what happened and what we do know pre-discovery and without the aid of Public Records Act or government transparency that we would otherwise have.

[00:07:06] Speaker 05:
But you don't have that in the complaint, though.

[00:07:12] Speaker 02:
What we allege is the best that we could, which is that there is an absence of effective policies and procedures, that there was a lack of supervision.

[00:07:21] Speaker 00:
And a knowledge, no indication that they knew the clinic gives out information.

[00:07:27] Speaker 02:
Not specifically.

[00:07:28] Speaker 02:
No, that's true.

[00:07:30] Speaker 00:
And don't you have to have that?

[00:07:32] Speaker 02:
I don't know that we have to have that.

[00:07:33] Speaker 02:
What I would point to is... You don't.

[00:07:37] Speaker 00:
Isn't it just the legal conclusion?

[00:07:39] Speaker 02:
Well, I'm thinking of the Kennedy versus City of Ridgefield case, for example, which was also cited in the Mergia case, where it says that the exact harm or the exact nature of the harm that befalls the ultimate person or the victim at the hands of the third party

[00:07:58] Speaker 02:
doesn't need to be precisely foreseeable.

[00:08:00] Speaker 02:
Rather, it's the danger that that person poses overall.

[00:08:06] Speaker 05:
You make the allegation and here's the thing and this is the sort of confusing and maybe the question I guess I have.

[00:08:13] Speaker 05:
You indicate in the allegation and that's at ER 231,

[00:08:20] Speaker 05:
You indicate the county cab MC knew from prior instances that the risk would jeopardize the health and safety of abuser spouse and children.

[00:08:30] Speaker 05:
Where do you come up?

[00:08:30] Speaker 05:
I mean how is that just you think that might have happened from prior instances or how do you know that?

[00:08:38] Speaker 05:
Why do you allege that?

[00:08:39] Speaker 05:
How do you allege that?

[00:08:40] Speaker 02:
One of our more specific factual allegations is that Tina Rodriguez was fired essentially immediately after this incident.

[00:08:50] Speaker 02:
and this came out in the criminal trial is the reason we were able to allege it in the complaint is that she was fired for incompetence quote-unquote and for dishonesty as well and so again we're doing the best we can with the record that we have but it does in our mind at least lend credence to being able to allege on information of belief that there were prior instances that Ms.

[00:09:14] Speaker 02:
Rodriguez based on what she was fired

[00:09:17] Speaker 02:
Well, in the specific allegations of dishonesty and incompetence.

[00:09:20] Speaker 00:
So I would, I mean that her job is to... Relatedly, if I recall correctly, the district court granted the motion dismissed with leave to amend and you chose to stand on the plate because what we have is the best that you have.

[00:09:33] Speaker 02:
That's the reality.

[00:09:35] Speaker 02:
That's the reality.

[00:09:35] Speaker 02:
I certainly would have amended if we had more vivid and specific facts at our disposal, but we put our best foot forward in the complaint.

[00:09:47] Speaker 02:
And as I say, I think

[00:09:50] Speaker 02:
under a supervision theory, under a failure to train theory, we don't actually have to allege prior instances if the specific risk is imminent enough or is foreseeable enough, predictable enough is the word I'm looking for, that the failure to do so would be likely, would likely result in harm under the circumstances.

[00:10:18] Speaker 02:
I guess I say that in response to, do we have a prior pattern of conduct?

[00:10:24] Speaker 02:
We don't in this case.

[00:10:26] Speaker 02:
But the risk is enough.

[00:10:31] Speaker 00:
You're hoping to get to discovery to find that one way or the other.

[00:10:35] Speaker 02:
Yeah, there's truth in that.

[00:10:36] Speaker 02:
And I think that given the fact that

[00:10:40] Speaker 02:
There is case law, City of Canton and Connick, the Supreme Court cases that say that one instance can be enough in some circumstances.

[00:10:50] Speaker 02:
We do feel that this is that case because of how serious the risk was, how foreseeable it was under the circumstances.

[00:10:56] Speaker 02:
And in that situation, under a training theory and under a supervision theory, we don't actually have to allege a crime.

[00:11:03] Speaker 04:
And just to make sure I understand, you're saying this is the rare case under Connick.

[00:11:07] Speaker 04:
even though there are no allegations because you didn't know at the time that the defendants actually knew that the clinic had given out the appointment information to the husband.

[00:11:22] Speaker 02:
I would acknowledge that if they actually knew that he was going to be there on that date and time – I mean, just sort of extending the good faith to decent people that they wouldn't have brought her there – but it's more the deliberate indifference to the risk of that happening because of systems or the lack of systems.

[00:11:42] Speaker 02:
I know I'm running a little short and want to at least reserve some time for rebuttal,

[00:11:47] Speaker 02:
Paragraph 79 and 80 in our complaint, which is at ER 229, describes a memo that went out to essentially all healthcare providers but also county welfare providers and I think a fair inference is that it would have gone to a battered woman's shelter as well because it's exactly what we're talking about describing the specific risk of when

[00:12:14] Speaker 02:
an abused person seeks medical care specifically through Medi-Cal in that situation because that can generate in that particular memo an explanation of benefits which will go back to the home to the abuser and give notice in really a general way or a more general way than this case of the facility at which that person is receiving care.

[00:12:39] Speaker 02:
And so it's that sort of notice that we point to, not as a prior act per se or a prior disaster that happened, but rather a very specific warning.

[00:12:52] Speaker 02:
When a person is removed from the home or removes themselves from the home and then is seeking medical care, that act of receiving medical care can generate information that goes back to the abuser, and that's a

[00:13:04] Speaker 02:
incredibly serious risk that needs to be guarded against on a systemic level on a training level on a supervisory level And it's our I mean you recognize that if we agree with you and send this back and this goes to a jury And there's this massive verdict

[00:13:19] Speaker 04:
There'd be a huge incentive for counties and government officials to just completely avoid victims of domestic abuse.

[00:13:27] Speaker 04:
Why would they, I mean, if this is the kind of liability that they're going to incur, then why would they even, they'd never want to help these people to take on that risk?

[00:13:39] Speaker 02:
Well, we would assume that they would want to try to help people in good faith the way that they are now.

[00:13:46] Speaker 02:
It's just that they have to do it

[00:13:48] Speaker 02:
Perfectly.

[00:13:49] Speaker 02:
Not perfectly.

[00:13:51] Speaker 02:
No, I wouldn't say that.

[00:13:52] Speaker 02:
But competently and not recklessly ignoring clear and present danger that does exist.

[00:13:58] Speaker 02:
So I think in terms of a floodgates argument that deliberate indifference standard

[00:14:05] Speaker 04:
I mean, if I were advising a county, I would say close down the shelters.

[00:14:10] Speaker 04:
Let's not take on the risk of helping these victims because, you know, you miss a phone call or, you know, we hire an incompetent person who doesn't show up for work on the right day and we get an intern to drive somebody to an appointment and then violence ensues.

[00:14:27] Speaker 04:
We're all going to be liable.

[00:14:29] Speaker 02:
And I guess my response was that I would advise them, keep doing what you're doing, but do it better and improve the training programs and improve the supervision so that we can do what we're doing, but do it safely.

[00:14:42] Speaker 02:
With that, I'll reserve my 50 seconds.

[00:14:44] Speaker 02:
Thank you, Your Honors.

[00:15:04] Speaker 01:
Good morning, Your Honors.

[00:15:05] Speaker 01:
Timothy Buchanan on behalf of the county of Madera.

[00:15:08] Speaker 01:
May it please the court?

[00:15:10] Speaker 01:
I believe the panel has touched on the nerve center of the problem here, and that is a lack of connection of dots.

[00:15:20] Speaker 01:
They alleged absence of policies, but they don't try to connect any kind of absence of policy here to what actually happened.

[00:15:30] Speaker 01:
that of course through the very tragic, horrific killing of Ms.

[00:15:36] Speaker 01:
Garay.

[00:15:39] Speaker 01:
Just to follow up on some of the discussion with Mr. Scott, a couple times during the argument, comments were made

[00:15:51] Speaker 01:
that an allegation is made in this case that the county and CAP MC sent Ms.

[00:15:59] Speaker 01:
Gary to the clinic.

[00:16:00] Speaker 01:
That is not alleged.

[00:16:03] Speaker 01:
And it didn't happen.

[00:16:05] Speaker 01:
She had an appointment and they, at most from the complaint, they assisted in some unspecified way her getting there.

[00:16:14] Speaker 01:
They're not even specific enough to say that they actually drove

[00:16:18] Speaker 01:
Drove them although they do say it was an unmarked or was a marked vehicle or something like that, but I wanted to be clear This was not arranged by the county and cap MC this medical appointment Did they help her secure that appointment?

[00:16:33] Speaker 01:
Secure it in the sense of making it?

[00:16:37] Speaker 01:
I don't know.

[00:16:37] Speaker 01:
That's not alleged in the complaint.

[00:16:40] Speaker 01:
What is alleged in the complaint is that they assisted getting her to the appointment.

[00:16:48] Speaker 01:
So that's all we know is from the first amended complaint and what it alleges there, which is, of course, so vague that we have no idea what it is we supposedly did or who supposedly did it because it doesn't identify that it was the county or Camp MC.

[00:17:02] Speaker 01:
They're different entities.

[00:17:04] Speaker 01:
Cabin C is a private entity, the county obviously a governmental entity, but there has to be at least be some allegation with specificity enough to be able to differentiate and say, well, who was it who did it?

[00:17:18] Speaker 01:
Because right now it just says they both did it in some unspecified way.

[00:17:23] Speaker 01:
But I want to make sure that it wasn't, the court is not on the impression that this was some sort

[00:17:30] Speaker 01:
compulsory medical appointment that the shelter needed her to go to.

[00:17:34] Speaker 01:
That isn't what happened here, and that's not what it's alleged.

[00:17:39] Speaker 04:
If they had alleged that the CAPMC knew that the appointment information had been given to her former husband and nevertheless drove her to the appointment, would that be enough to satisfy the rare case under Connick to show deliberate indifference?

[00:17:58] Speaker 01:
I would say

[00:18:01] Speaker 01:
Only if there are specific enough factual allegations to support that, because under Twombly and Iqbal, of course, they would have to allege sufficient facts from which a reasonable inference could have been drawn that they knew Julio Gary was going to be at the site that day.

[00:18:18] Speaker 01:
But just alleging that as a conclusion would not be sufficient.

[00:18:21] Speaker 01:
So that would not get them there.

[00:18:24] Speaker 01:
And in fact, on the specific issue of knowledge, Ickbald specifically addressed that, because in that case, there was an allegation that Ashcroft and Mueller knew that the subordinates, the underlings, were depriving detainees of constitutional rights and did nothing and basically condoned it, that type of thing.

[00:18:49] Speaker 01:
And the Supreme Court, of course, in that case said that.

[00:18:52] Speaker 01:
bare allegation of knowledge was insufficient to meet the plausibility standards.

[00:18:56] Speaker 01:
There has to be some factual indication of how it was they knew and what they specifically did or didn't do.

[00:19:02] Speaker 01:
So, yes, on the broader sense, yeah, if they knew Julio Gary was going to be there and it was plausible and it was factually supported for a reasonable inference, that would be enough.

[00:19:15] Speaker 05:
And the fact that they said, they do allege this, they do allege that and this is at ER 231, that the county and CAPMC had actual and constructive knowledge and knew and should have known

[00:19:28] Speaker 05:
that Camarena had disclosed private healthcare information in the past.

[00:19:35] Speaker 05:
But that's what they say.

[00:19:39] Speaker 01:
That is what they say.

[00:19:40] Speaker 01:
And that's insufficient because that is a conclusion.

[00:19:45] Speaker 01:
And it's all too easy to try to loop a governmental entity in by saying, well, they knew.

[00:19:52] Speaker 01:
They knew Camarena was doing this.

[00:19:56] Speaker 01:
what they drove her there because again they didn't send her there and they didn't arrange that appointment in terms of

[00:20:02] Speaker 01:
there there could be an implication for example at the shelter needed it needs all uh... women go there uh... to to have a medical appointment of some sort that none of that is alleged and i'm not know that's here but just a bear allegation we know they knew that camera and it does this they disclose uh... patient information they had disclosed to julio in particular and that they've been disclosed to julio in particular is a conclusion

[00:20:29] Speaker 01:
There would have to be some kind of factual allegation for how that came about because, especially under the plausibility standard because, and this is repeating an argument that we made in the brief,

[00:20:43] Speaker 01:
It is completely implausible that the county and CAP MC haven't taken all the steps that they did to keep her in a location that was unknown to Julio Garay, then voluntarily, knowingly, willingly took her to a place where they knew he was going to be.

[00:21:01] Speaker 01:
It's completely implausible.

[00:21:03] Speaker 01:
So when on its face, it is completely implausible, that would certainly require

[00:21:08] Speaker 01:
under Twombly and Itball that the complaint alleged sufficient facts for how it was that despite having taken all those measures, they then completely ignored them and willingly exposed her.

[00:21:21] Speaker 04:
It seems like there would be a missing link in that anyway.

[00:21:23] Speaker 04:
I mean, even if they knew that the appointment information had been given to the husband

[00:21:28] Speaker 04:
There's still a step that they wouldn't I would think they'd need to allege that and they therefore knew he would be there waiting for her I mean that's he met at work that day may have gone on a trip.

[00:21:38] Speaker 01:
We don't know that that's exactly right They would have to have alleged plausibly factually that that they knew That he was going to be there That really that he had been told of the appointment because he would have to be there at the right time and

[00:21:56] Speaker 01:
and know exactly when she was going in there.

[00:21:59] Speaker 01:
So yeah, that would have to be alleged, but there would have to be sufficient facts, especially when, on its face, the plausibility is really on the lines of the plausibility the Supreme Court rejected in the Iqbal case.

[00:22:16] Speaker 01:
This is a dramatic allegation that the Attorney General of the United States and the FBI director did these bad things.

[00:22:24] Speaker 01:
You've got to allege more than just a conclusion that they knew and didn't do anything about it, or that they intended it to be discriminatory.

[00:22:33] Speaker 01:
So going back to Iqbal, when it alleges something that on the other facts alleged makes it roundly implausible that they did what they did, that would certainly

[00:22:47] Speaker 01:
in our position, raise a special duty to have to allege those plausibility facts in a sufficient way to lead to a reasonable inference that they basically just ignored everything they'd done right up to that point.

[00:23:08] Speaker 01:
On the issue of policy, and Mr. Scott said, well, what we're alleging here is the absence of a policy.

[00:23:16] Speaker 01:
That is true.

[00:23:18] Speaker 01:
They have not alleged any affirmative policy, no express policy.

[00:23:22] Speaker 01:
They get at the idea of a custom and practice type of policy by alleging, as the panel pointed out to Mr. Scott, that there were prior incidents and that

[00:23:38] Speaker 01:
Allegedly the county and cap MC did nothing to Institute a policy that would actually have put safety measures in place that could have prevented this axe this killing this killing There are no such I'm sorry you're actually over time.

[00:23:56] Speaker 01:
Oh, I'm sorry I appreciate that your honors and if there's nothing further turn it over to Thank You mr. Rappaport.

[00:24:03] Speaker 01:
Thank you

[00:24:11] Speaker 03:
Good morning, Your Honors.

[00:24:12] Speaker 03:
I'm Gaspar Rappaport with Horvitz and Levy on behalf of Community Action Partnership of Madera County, Inc., which I will refer to as CAPMC.

[00:24:21] Speaker 03:
So may it please the Court.

[00:24:23] Speaker 03:
Let me just introduce you.

[00:24:24] Speaker 03:
You've heard from the Council from the County of Madera.

[00:24:27] Speaker 03:
Let me tell you about CAPMC very briefly.

[00:24:30] Speaker 03:
It's a private non-profit organization that provides charitable services to the community, including, as alleged in the complaint, services to victims of domestic violence.

[00:24:43] Speaker 03:
I just want to hit a few points that were asked by this panel.

[00:24:48] Speaker 03:
First, with respect to knowledge, there's no factual allegation, plausible factual allegation, of knowledge by CAP MC of a disclosure by a third party, Camarena Health, of that medical appointment on that day.

[00:25:05] Speaker 03:
As the court knows, there has to be some factual basis from which the court can

[00:25:11] Speaker 03:
can draw a reasonable inference of knowledge.

[00:25:14] Speaker 03:
Now, to contrast this lack of an allegation regarding knowledge to other allegations of knowledge in the complaint, there are allegations that CAP MC knew about the history of abuse.

[00:25:26] Speaker 03:
That is properly alleged in the complaint.

[00:25:28] Speaker 03:
And I think that this is a nice contrast to the lack of allegations of any knowledge that CAP MC had about a specific risk of harm that Ms.

[00:25:37] Speaker 03:
Guerre was going to face on that day when she went to a medical appointment.

[00:25:42] Speaker 03:
The opposing counsel referred to the Kennedy case with respect to foreseeability.

[00:25:50] Speaker 03:
I think it's important to understand the scope, this very narrow scope of the state-created danger claim, which is an exception to the general rule that when there's a case of private violence, the failure to act by the state does not

[00:26:06] Speaker 03:
give rise to a violation of substantive due process.

[00:26:10] Speaker 03:
There are obviously a couple of exceptions to that, but the exception that is relevant in this case is state created danger.

[00:26:17] Speaker 03:
There has to be an affirmative act that either creates or increases the risk of harm to a plaintiff.

[00:26:25] Speaker 03:
And that risk of harm has to be known or obvious to the defendant.

[00:26:28] Speaker 03:
And then the defendant has to ignore the risk and intentionally expose the plaintiff to that risk of harm.

[00:26:37] Speaker 03:
because of the lack of knowledge here, there's really no allegation that CAPMC engaged in, acted in a deliberate, indifferent way to the safety of Ms.

[00:26:50] Speaker 03:
Garay.

[00:26:51] Speaker 04:
I was confused as to why the district court found that CAPMC was a state actor.

[00:26:58] Speaker 04:
What's your position on that?

[00:27:00] Speaker 03:
So, and let me preface this answer to your question with the awkwardness that

[00:27:07] Speaker 03:
We have in this case of the assertion of a claim that is based on our research has only been asserted against law enforcement officers, clear state actors to a private entity.

[00:27:22] Speaker 03:
that receives funding, so that's an allegation that is properly alleged in the complaint, that administers some programs that are through contracts with the county.

[00:27:36] Speaker 03:
An organization that has

[00:27:39] Speaker 03:
in its governance, right?

[00:27:41] Speaker 03:
So I think it's alleged that about a third of the board that governs CAPMC is appointed by the county.

[00:27:50] Speaker 03:
But none of these allegations by themselves suffice to show that CAPMC is a state actor.

[00:27:57] Speaker 03:
And very importantly, there are no allegations that the specific conduct that is alleged as to CAPMC

[00:28:03] Speaker 03:
was intimately intertwined with the conduct of the county, which is what this court requires.

[00:28:15] Speaker 04:
To find that the non-governmental entity is a state actor?

[00:28:18] Speaker 04:
Right okay, so the content that just to but if we agree with you that the plaintiffs have failed to allege a constitutional claim or violation Then do we even need to address this issue about cap emcees?

[00:28:34] Speaker 04:
being a state actor

[00:28:36] Speaker 03:
The court could affirm by either going to the merits of the constitutional violation or finding that there's insufficient allegations that we are a state actor.

[00:28:51] Speaker 03:
With respect to the lack of policy, the only thing that is alleged in the complaint is that there was a lack of policy to guard against disclosure of confidential information.

[00:29:04] Speaker 03:
Even if that were properly alleged, the problem with that allegation is that CAFMC did not disclose anything.

[00:29:10] Speaker 03:
So even if it had a policy, or even if its policies were insufficient to guard against disclosure of confidential information, the problem here is the disclosure by a third party is the allegation then that

[00:29:24] Speaker 03:
CAP MC should have had a policy to guard against disclosure by third parties.

[00:29:28] Speaker 03:
That's just implausible.

[00:29:31] Speaker 03:
So there's definitely not sufficient allegations to allege a policy here.

[00:29:43] Speaker 03:
Judge Nguyen asked about discovery.

[00:29:46] Speaker 03:
And discovery is perfectly appropriate under the rules of civil procedure to

[00:29:53] Speaker 03:
substantiate claims that are properly alleged.

[00:29:56] Speaker 03:
Discovery is not meant to find new claims to assert against a party.

[00:30:02] Speaker 03:
So that would be our position here.

[00:30:07] Speaker 03:
I think I covered everything I needed to cover.

[00:30:09] Speaker 03:
If you have any questions, I'm happy to answer.

[00:30:11] Speaker 00:
It doesn't appear that we do.

[00:30:13] Speaker 00:
Thank you very much.

[00:30:13] Speaker 00:
Thank you.

[00:30:14] Speaker 00:
I think you've got a little bit of time left, Council.

[00:30:17] Speaker 02:
I don't know that I have anything to add, but I appreciate it.

[00:30:19] Speaker 00:
All right.

[00:30:19] Speaker 00:
Thank you to all Council for your arguments this morning.

[00:30:22] Speaker 00:
The matter is submitted, and that concludes our argument calendar for this morning.

[00:30:25] Speaker 00:
So we'll stand in recess until tomorrow.

[00:30:38] Speaker 00:
This court for this session stands adjourned.