the morning my name is steven yeah going and i represent the plaintiff my plan is to argue for about a minute and a half and then take questions if any and then the reserve or the rest of my time for rebuttal i think one pleading issue which i think the plaintiff has met without any doubt at all and second the issue that could be characterized as a substitute issue which probably is a standing issue although i've never been able to convince myself that it really isn't the standing issue employment under california law is both a business interest and a property interest as was pointed out in the first oscar decision and the commercial what i call the commercial target component of rico that was imported into rico by judge nettie's decision simply has no basis in law at all i have nothing more to say that isn't in the briefs other than that and i will take questions if there are any and it's not over for you could you help me on something i've been trying to think exploit for some years now just why congress put the phrase business or property in there and one speculation i've had since it's not really that clear from the statute or if we look at the legislative is that they wanted to have a firm grip on the commerce clause i have no idea in the world other than model that on the clayton act just as i mean i can tell you why they did what they did over the weekend because they said so but something in point that says that that your employment opportunities are your business under the smack her in the knees as they would say you know break your knees like the mafia did in the old days to try to ruin her chances for competing i forgot although i remembered last night who the evil person was who ar exclude personal injury absolutely no one suing for personal injury in this i'm thinking that the wrongs in this case they seem to fit right squarely into false arrest and false imprisonment so why isn't that a personal injury case predicate i think once again one category of things and rico is being imported into another category years and then that's the pattern it doesn't have to be a pattern that's directly to this person all that needs to happen is that one of the different kinds or sorts of predicate actually needs to be the act in this case i don't know if that answers the question or not put in jail for it we look at the type of various takes the damage he suffered and say yes you can recover for the business and property consequences of that personal in is the kind of lack of a better word that occurred that is was negligence was an automobile accident of course it's more like a personal injury i respectfully disagree that the kind of tort was it was a personal personal injury it's simply a week ago predicate and then the question becomes as a rico predicate are you suing to something that would come within the definition of a personal injury and thinking through as a real valu the question i think it lands on both feet i think it lands on both ends that at least underlying bad act and as you say we call that kidnapping is not a type of personal injury but i realize that people can characterize it like that because they characterize it as a false arrest or is an intentional tort but the harm here certainly is an injury to business or property it's thinking it's true i think i come down on the second but then there was the economic harm injury to business or property from your head it doesn't matter what the basic injury is no a cover for the economic harm regardless of the type of court yes that is my answer but i would add to that as well that i think it may make a difference in this had a will decide if it does make a difference perhaps whether or not the underlying wrongful is negligent or intentional i've always understood personal injury in the sense in the constitution in the context of courts to mean something that's negligent like medical malpractise i've never understood it to his employment i can't remember what he was doing at the time he was employed and i don't remember exactly what he was doing i know he wasn't a brain surgeon but beyond that i it interfered with his ability to obtain work as a verb in thirty one of the complaint which is on page sixteen of the excerpts of record my herman thirty thirty one p assault and battery at ordinarily the way it would be plead it would be have an alternative theory of negligence just in case you couldn't prove the intent that damages would include  pain and suffering medical expenses damage to the car and damages to the it would be weight loss or interference with the attaining the profits or whatever consequential economic damages that work if i understand your theory that would be a good rico claim but the only status that could be obtained in a rico action would be three times the consequential economic damages that the damage to the car and the loss of wages i got that right i seem to agree with that i may think better of it when i make my better argument on the way home but it seems right to  me but i feel like i'm conceding something that's bad for our case although that's just what i did and i'm just trying to clear up my ideas what you're saying there is you don't look at whether it's a traditional personal injury tort to decide if it's injury to business or property you look to whether those are among the damages from the floor i seem to agree with that but i want to win grasp on that this next year i made between intentional to negligent tourist i don't have the feeling that negligent torts which i call traditional personal injury torts fall within the rico i may be wrong on that that's not an issue in this case because we have an intentional toward here but i do agree with the  his opinion it would become internally inconsistent it just doesn't apply here and that's one of the reasons that false arrest all of those things are going to be challenges so that to the conviction of your client who remains in jail and has exhausted his other his other remedies why isn't this a collateral attack on especially at his convention do about it it just doesn't fit it was limited to its own facts it's limited to sexuality but i do want to clarify my last question was in order for your fights recover a jury would have to conclude that your client is not  of the plaintiffs in this case would operate and within the framework of collateral stoppable so as it could be used in any way just tell me why you were just tell me why you know why a jury wouldn't have to conclude in order to favor your client here for damages such your mind was not was not in jail on lawfully disease you actually thought of it sooner you can't reason backwards from a conviction to the fact that there was probable cause for that arrest was lawful you just can't do it there are cases i know of i haven't cited them is that in fact this issue is going to come up you have to reason backwards to do that we're basing this on the original kidnapping not on the conviction and you have many cases and i think there are some in the ninth circuit that stand for the proposition that you can still have section hundred eighty three claim based on the events of the arrest even though there is a conviction after that and you have to find complete symmetry and congregants between all of the facts for the arrest on the one hand and all the facts for the conviction on the other hand about what we were going to join we retire we were dreaming and i said you know i'd like to be a gardener i'd like to do something completely different and i think like to start by offering a gardening analogy you do not use a here's here's my problem with both your your argument i read nine hundred sixty four c and i'm trying to fit it into the kind of personal injury toward  business story category distinction the grogan's that's right and i'm having trouble doing that and let me explain why it's any person injured in his business or property by reason restriction on what you can sue for if you're a victim of that type of wrong what you can sue for because of the word therefore is injury to your business or property so it looks to me like if you take my way way ramming example and judge kozinski was right what brought it to mind with that scandal in california about the insurance fraud that if you take that freeway ramming example  though it doesn't really matter whether that's a typical p e i case when there's a car accident or whether it's a business or what matters is whether there's injury to business or property and you can only do for that so these people can sue for their personal injuries their pain and suffering their medical expenses but they can sue for their consequential business or property damages and they can get three times the automobile collision that image and three times their wage losses three times their business loss that say they're a lawyer and they lose their hourly billing for a month  with for example you murder somebody and you steal all their property and then that's the property damage that's why i have a problem with that when i go back to the  statute what third person said was the same question that troubled me it says that the cause of the injury to business or property has to be a violation of section one nine hundred sixty two and then i look at section of racketeering activity nine hundred sixty one one and the first one on the list is murder where that is quintessentially a personal injury it's not a business tort so looks to me as though if i got an under nine hundred sixty four c the victims can get damages crippled for injury to business or property on account of the murder so how can i reconcile that  situations if there is a scheme to murder you know the president of the company to put the company out of business i look on the title of the statute i think they were thinking of old black and white movies from the words of the statute it's that's it now in all seriousness and we haven't talked very much about the speculative nature of the allegation here but it's all about loss of the ability to obtain employment there is no solid allegation here i was employed and i lost without being limited as meaning loss of employment opportunities would not be good enough i'm not going to say he could never be good enough he cannot be good enough under the fact of this complaint you brought you can use that a but then they also have to look at the damage and in looking at the damage they separate out quite clearly that the personal injury kinds of damages medical so forth but they can injuries played in this case we're talking about loss of wages loss of employment as economic damages isn't that a better way to look at the damage to him like consistently with the way the congress and the courts have analyzed personal injury damages in the past what you're asking i think pretty active there when i'm talking about the facts in this case the allegation and the loss of employment opportunities no i think it's way too speculative and i think that's actually contrariness is speculative i don't understand because you haven't actually encouraged any financial consistently in the briefs and so forth you're talking about personal injury violations the fact that you can articulate is that you or your i had a question put to me to which i didn't know the answer with respect to which the answer would have been alec godel anyway but the answer is the following the plaintiff was an artist who worked for a company in downey california who had a contract with disney and what he did as an artist was he put in shading on cartoons he had a second job working for his grandfather a parkinson's disease and who delivered c o two containers and he did the deliveries for his grandfather none of that is in the record nor should it be taking judge or kleinfeld hypothetical i think that the fellow in charge of murder inc i think his name was called there but i may be wrong and it was also think that the now case was instructive because on remand when it finally came back in the district court i guess from the southern district of illinois in chicago the employees were held to have standing even though the