great thank you your honor my name is deborah lovi and i'm here on behalf of the plaintiff appellant george sileo to face reading the defendant's briefs one would think that this case was before the court on summary judgment defendant site almost exclusively to summary judgment cases with summ judgment burdens and standards and they rely on over six hundred pages of transcripts and evidence appended to the brief this is a twelve b six case applying the correct law it's clear that plaintiff has properly pled his claims under leavers to city of los angeles this court may not take judicial notice of factual inferences to be drawn from the evidence in order to dispute the allegations in the complaint and with that precept in mind the bulk of defendants arguments on evidence the complaint plausibly alleges defendant's fabrication of the arson allegation what new facts have you learned since the end of the second trial that you say calls into question the i guess legitimacy of the evidence that was presented at trial what new facts not conclusions what facts well the facts that are alleged in the complaint are that consist of of what that's my problem with your complaint frankly is that it doesn't contain much in the way of factual material it's long on generalized conclusions but i'm asking you very specifically what particular facts have you learned since the trial ended that now calls into question let's actually start with sandoval's i d tell me about what if you would if you learned what new facts ok well we know that sand of all that the allegation let me start with the allegation in the complaint with regard to sandals identification is that the defendant course some of that came out during the trial that's why i'm asking what's new that you've learned since the end of the second trial so specifically for example sand of all said that the suspect met description x and  y that fact never came out during the trial and it now turns out i would like to know you know what the sources it now turns out that what she really said was suspect that a and b what in the way of new facts like that it this point i guess i'm i'm not really clear on why this question comes up at this point we're entitled is long as we're making plausible allegations with factual basis and you know plausible we're alleging plausible facts we don't have to plead our evidence at this point so we have you don't have to plead evidence but you have to plead facts that give rise to an inference that something was falsified and so if you if all you say in your complaint for example is that she said the person was in his thirty's or forty's well that's not came out at trial didn't it's more than that so we know for a fact for instance that the person that she originally saw when you're crediting our complaint was not  saw somebody who was not plaintive and was not his vehicle and those are facts that we need to assume for the purpose of this complaint so knowing that knowing that the defendants took all sorts of steps to fabricate that this was an arson and out since the end of the second trial the facts as we allege them are that the defendants changed the original report of what it was she said she saw because she said originally what and then what is that one of the true facts now well there's a brady claim so we don't have the initial recording we don't have the initial sketch we know that she describes somebody who was not point if we know that the that we allege that the police report buried that miss lied about that fact what fact i'm just still waiting for the facts that affect that that she describes someone who did not match plaintiff's description she describes someone who was who was different from plaintiffs and in their police reports change that in order to make it sound as if she were identifying she were identifying plaintiff and identifying her vehicle she initially what the first time she looked at his vehicle she said no that's not it a fact was three monitronics what i'm saying but it's not new that is not that's not new factual material the reason why plaintiff was charged convicted was based on the falsification of when you isolate when you look at that for instance i would like very much to couple that with the fabrication of the arson finding itself ok our complaint alleges that this was an accidental fire and that the defendants upon seeing it knew that this was an accidental fire and that they changed their report and changed their presentation of it to make it an arson so when you look at those two things together the changing of the identification in the careening of it what was an accidental fire into an arson  well ok so let me let me ask you about the the opinion that because i guess tell me why this is why your opponents are wrong in saying that it's one thing to say that facts are fabricated but it's kind of hard to say that an opinion has been fabricated unless what you're alleging is that the person who offers the opinion didn't actually subjectively believe that it was true right which is what we elect ok and what are the facts you've discovered since the end of the second trial that support that that would allow someone to draw that inference because again all i when i read your complaint all it says is the bare conclusion that these people made up this opinion and i say ok well what are the facts from which we're supposed to draw that inference so you draw the inference that they made up this opinion based on the fact that they ignored the science of the time they ignored the safety the evaluation standards of the time they made the opinion before they ever set foot in the building they fabricated a motive they altered the witness in order to try and have her identify him you have evidence that we have or what you have i'm sorry l a geisha and that support and intent to so so paragraph thirty three says that based on their training and experience the defendants knew that the fire was not an arson and that's the proper allegation of you know this was a lie and that's comparable to the elevations that were found sufficient in cases like galbreath and gregory instance and that we talk about and then we have the allegations underneath that as to why that's a plausible allegation they didn't set foot they ignored the science they did nor the safety standards can i ask a question because this is a sad case tragic case of many ways  but the conviction was overturned they originally convictions that crack yes and it was done on the basis of in effect to this instance of counsel that's correct what was the ineffectiveness that was the basis for that claim in the first trial there was quite a bit of scientific evidence to rebut the motive evidence and to rebut rebut the arson claims and that evidence wasn't presented in the second trial the second trial none of the most of the witnesses that were called in the first trial and the defense were not called in the second trial and that those are that's a different that is different in nature from what you are alleging in the second and then it completely i guess i'm having a hard time understanding why that matters for a devereaux claim i mean the only thing for it in order to stated every claim you have to have the defendant fabricating evidence and you have to have evidence of intent when you have those two things you stated to devereaux ok but i'm sorry to keep hammering you on this because this is please not my problem with your case normally in this kind of case once someone has been exonerated let's say right after being wrongfully convicted some new fact has come out a witness this you know there you have something to put your hands on in terms of i don't know they claim they found the bloody glove here and in fact it was found over there whatever you don't have anything like that here from what i can tell because what i would say i guess with respect to the arson opinion is that all of that was contested at the first trial and in fact as you said the defense put on its own expert so all of that was laid out and i'm guess i'm still left what's new that you discovered about the nature of the opinion that they offer these experts offered that calls into question whether they subjectively believed it to be true respectfully and there's nothing that requires that while that is what the case traditionally looks like there's nothing in the law that requires that on the civil side you have a very different burden of proof than you have on the criminal side you have the elements of a devereaux claim if we meet the elements if we adequately plead and plausibly plea that is what we're discussing and i'm saying you have not adequately pleaded it because you can't come in and just say somebody gave an opinion at trial and i claim that they didn't think they did not subjectively believe that to be true and that's the extent of my allegation you have to give us some facts from which we can allocate inference absolutely so the facts that we plead that support that inference are that that the science of that time with their training their experience the science their failure to even walk into the building all support the fact that they knew they were lying those allegations that they ignored the training and stand the fire standards you know there are national standards about how one looks at a fire they ignored all of that it was like reading tea leaves they just walked up to the site are allegations are they walked up they looked and they said this was an arson and then they fabricated motive they fabricated hold on i don't think you get to just lump everyone in like that i mean i know you've a legit conspiracy i don't think you've adequately done that but the i'm talking about the arson experts they did not make up this stuff about the financial motive they went and apparently based on whatever one does to investigate the the origins of a fire they gave an opinion that opinion was i think attacked pretty severely at trial right the very things that you're pointing to now were brought out they nonetheless and here to that opinion during the second trial right those sorts of opinions can be i mean this is no different than the stinson or gregory or  gall breath the cases where you have experts who are offering what they're calling an opinion but that no reasonable expert actually would have believed in the allegation is they lied about it and you say you underneath it you plead why do we you know what supports the fact that they lied and if you credit the allegations that they didn't even do of a real exam in a meaningful examination they went against what all of their teaching and standards would have been if you credit those that supports the allegation for this the pleading stage and then later there is discovery and maybe we won't be able to prove these claims but the question here is did we plead and i i think the allegations underneath about them ignoring the may again you have the elements here are all polite you have the suppression and the complaint alleges that the defendants withheld this the sketch and the recorded evidence or the recorded interview but let's again talk evidence that you say was suppressed was material don't we need to know something specific about the nature of what was in the sketch or what suppose it was in this recording i take it that you don't have either of those items you never seen them so i guess  is the wrong standard the question is whether we pled something underneath it to from which you can infer that this was evidence that was favorable you have the fact that the defendant suppressed it you know the fact that they didn't even document its existence you have the fact that we know you've got to tell us specifically and again that's why i just say normally you come in and you say the witness you know they claim the witness gave this description actually the true description was something totally different and had we had that and been able to recording because we didn't have those so that cross examination did not happen and had that happened the complaint alleges that that would have changed that would but it gave a challenge what you can just from the fact that they suppressed that they didn't even document it which suggests why would you not documented if it was except if you wanted to hide it why else would you not mention any report that you recorded this interview in less it was exculpatory evidence that you were hiding that's a reasonable  inference to make from the fact that this evidence was buried in the way it was you have some time to do you have more on brady because i have one question for you on the lessons prosecute i would love to take any questions you have your other  everything that happened during the habeas proceedings i just when i finally turned to reading your complaint i was a little bit puzzled as to why there's not more there there it's not so that's why i'm asking all these questions so that's my problem  malicious prosecution do you do you agree that basically that claim sort of rises or falls with the fabrication allegations because otherwise it seems to me we have a probable cause finding that would otherwise cut off this claim you can get around that if you can show that in fact some of the evidence presented at the prelim was fabricated but doesn't that mean that you've got to basically prevail on the fabrication claims to have any hope of going forward on malicious prosecution twenty myside this favorable termination right putting aside favorable terminations which we are using a summary judgment issue i think you know again i think when you credit our allegations there is a question of fact about the probable cause as well i understand how you're making that connection but i think that there are enough allegations here part of what troubles me about the paradigms you have set up are the different burdens at each stage so for instance what the jury finds at a rate you know beyond the reasonable doubt exception of course exists if some of that evidence was fabricated and all i'm saying is that don't you pretty much have to prevail on your fabrication claims to get around the probable cause funny at the prelim in order for this claim to go forward we have to have alleged that there was some fabrication  which the president the prosecutor would have on which the prosecutor was relying and that's just your fabrication of evidence claim so if for some reason you didn't succeed on getting it will be six dismissal reversed on those claims you would you can see that the malicious prosecution cleared can't go forward i don't know how it could i think in both cases you need to have some viable allegations of fabrication ok one last question to then unfair will terminations just so that that  t of appeal case that they cite involving the guilty plea involving the sexual battery why is that not on point in coach when there was a guilty plea the guilty plea what the l l it what the guilty plea was for was was involved conduct that was necessarily a subset of the conduct for which he pled guilty here you have no overlapping conduct what mr sileo taste pled guilty to is not having an operable smoke detector you can have murder and you can have arson irrespective of any kind of kind that has to do with smoke detectors you cannot have rape or sodomy without unwanted sexual touch and that's what makes the coat case different i mean from a descriptive standpoint but i'm talking about the underlying legal principles ri that motivate the whole federal terminations requirement it's what we don't want is for the parties basically both sides to realize that there's risk and rather than roll the dice and try to get one hundred percent of they want they meet somewhere in the middle and when that occurs as i understand the california case as we said no that doesn't count because there hasn't been some determination that let's say your client is actually innocent and this seems the same thing your client for totally understandable reasons decided to take plea offer i would have done the same thing myself but what that deprived him of is the opportunity to actually show that he was going to be vindicated and that may be the case or if the court were to allow us to proceed in summary judgment this waiver even though you know on the if you read the transcript that's what it says and we you cannot use the extrinsic evidence at the pleading stage in order to prove that we have all sorts of evidence that we could produce  summary judgment and it becomes a question effect and if you look at the post crawly cases they all there so they all say that they're they'll pick at the summary judgment and allow for the plaintiff to dispute whether or not it actually was a waiver hey please court close for defendants in belize your and i think that you hit on exactly the right issues in your questions about what's missing from this complaint but there's something else that i think that's missing not only don't they plead facts about something that happened after the trials they don't even plead the sufficient facts about what happened during the trial and it is that that's the nature of the pleadings given given that they had three chances to amend the district court judge specifically said you've got to tell them which defendants made these false statements you have to tell them which reports but more importantly what is it about what they said that's false how did let's start again let's start with the the arson expert you've heard your opponent's argument here they say that they completely disregarded the prevailing standards in the science at the time didn't bother to do an actual investigation just showed up and immediately said this is arson why isn't that enough would have done the following ten things these people did none of them and yet they gave this opinion that they must have known was false why isn't that enough to get past the twelve sixteen first they didn't plead that they pled first they said they should they when they arrived  when the lead inspector arrived he believed it was arson they didn't say what their basis for alleging that was the facts that would allege that to be the case and in their complaint they have facts that would suggest that would be good reason for him to believe that it's arson when he first arrived in their complaint they allege that before the os arson investigator arrived to send a ball with him and tracked down the first officer was there and told him that she saw a vehicle pull up to the house at three in the morning get out with a with a pillow case full of something go behind the house and then come back out with an empty pillow case go in the vehicle and leave and then the house burst into flames is that is evidence of arson and that would be evidence of  son they would have well i don't i don't need an expert to help me with that as i soon an arson ex investigator bring some other scientific expertise that seems to me an relevant fact to formulate an expert opinion that's you and i can draw the inference from the facts you just described we don't need arson investigator you know smith to tell us that so i'm talking about the underlying science that they were relying upon it right there were standards in place that they completely disregarded the time  follow they allege that agency promulgated some guidelines in one thousand nine hundred two and that these investigators in modesto california didn't follow those guidelines they don't say how they didn't follow them they don't say for example the guidelines says you need to do this this and this and it's universally accepted and it's required in california and these these these investigators ignored it they don't allege that at all they just to let these guidelines existed without saying how important the guidelines are without saying anything about have they're universally accepted they just throw them out there but more importantly they don't say what they did that's contrary to the guidelines they just say they didn't follow the guidelines and they also don't allege that had they follow the guidelines they would have found  this fire was caused by accident they don't say a lot of support why did bystanders why did the state then concede during the hades proceedings that actually there's you can't tell there i take it the science on that front hasn't changed put aside this you stuff i understand this you stuff maybe something changed but on the origin of the fire you know examining the burn pattern whatever all right all of that stuff is still the same bright and yet the state concedes that actually whatever they said back  that maybe these guys did make this up they didn't really have a sound scientific basis for giving the opinion they did what what happened was there was eighteen years or seventeen years intervening in which that's when the at the science community more of a consensus about what the nature would be for it best again fire science it was not in one thousand nine hundred seven that's why they don't allege it they allege that there were these standards promoted by this group and it took a while for those to be accepted and but i don't even know what specific standards they're questioning here and so that's that's the issue and that's why when this case was tried that wasn't the they argument that you're not following that and f d a standards that wasn't the issue they just had a separate expert who had his own way of evaluating arson so that's something that developed over a long period of time and it wasn't unique to mit astro it was throughout the country in terms of the evolution of fire science but it was there and that why they don't allege that it was that of all at that time and but they specifically if they would have said there was a specific finding that was incorrect and if you look at the other the other cases that are cited that relate to findings by experts almost all of them have the expert manipulating some fact you know changing the bite the bite mark again if occasion or not you know saying they examined in the strangulation case they examined someone's neck when they didn't those are false fabricated reports because you know they don't really allege that i mean that's what we thought they might have been referring to when there was when they mentioned a report i mean we were struggling through three planes to say what report you talking about and what are you saying is wrong with the report and they refused to tell us we guessed that this report from mr rusher where he said described the car as beige versus white and they said they they disavow said no we're not we don't have to tell you what report it is if they did that then we could look at some of these other cases  just the difference in phrasing can't be enough to show deliberate fabrication of someone says that a finding is is consistent versus a positive the cases that that's not enough so if their case was about in this report they said the car was white but the witness you know says no no i told him it was beige they wrote down the wrong thing we could discuss that but they don't allege that that's nowhere in their complaint and we don't even know which of the eight individual defendants they're talking about about making these accusations we have the traffic officer on scene as one of the defendants we have a four detectives all with various duties we have to fire inspectors and they're all legit to have done everything they're all legit to have fabricated arson reports they're all not in this case but in the eighteen years they've litigated this case two trials that lasted over two months the hey b s opinions of themselves are over two hundred pages long there's no reason they can't tell us what they're accusing these officers of came up to him gave her a report about about the fire what that he did he's a lead he's involved he's one of the individual defend it's all a in every cause of action and we asked them repeatedly said just tell us what what it is the individuals did wrong that you think what they did what report and then we can look at we can spend we can have a discussion about whether it was material whether it mattered whether it was fabrication but because they do not have those facts i mean eighteen years a litigant in this case they didn't come up with any of those facts nothing new happened after the trial they're trying to through vague pleading avoid the facts in this case that showed that there was no that the trial was  fair and there is no due process claim against any individuals they're trying to use they delegate to avoid those conclusions any time they they have a specific allegation we can show that's not enough nothing new happened specifically similarly with that with the brady issues one of the issues that i think that that is dispositive of the brady young but claim is they actually plead in their complaint that there are at the central elements under the brady claim or comparable facts under the youngblood claim that they had at the trial the cases are clear that if there's a recording that's lost or suppressed that doesn't necessarily mean you can show they had an unfair trial you have to show that you didn't have comparable evidence meaning the cases are clear access to the witnesses which they had or under the youngblood claim or the brady you didn't have the essential facts which is the same thing access to the same witnesses that's that's what that's the essence of  no i don't i don't think you're right about that i mean if if they allege if what they are alleging is that this sound of all gave a completely different description put aside you know the person was in their thirty's or forty's i don't know if they were you know eight feet tall turns out you're you know their client is five foot five or something i mean if this sound of all gave that initial description to the police the police either had a recording or had some report and did not turn it all could not have been cross examined on those facts and that evidence is now destroyed there isn't there isn't anything comparable they could turn to even just having an opportunity to cross examine miss annabelle is not enough right i think that i think  no longer with us and if that if it existed at one point the state had an obligation to turn over it clearly was exculpatory if it disappear if she really did describe somebody totally different and then you know they were left to cross examine her with basically no no material to work with that that's a brady violation doesn't matter if they've since destroyed the underline evidence so i'm just talking about straight brady clearly the top case for example and we cite at least three or four where exactly that situation happened where they had a recording that was what th at was that was destroyed or lost and they argued that you didn't you didn't turn that recording over to us you should have and you know they say well you had these witnesses you can talk to you can interviews you cross examine them and that would we what the substance  recording would have been about the arguments that's that's enough in there they said no no no we need to be able to hear the voice of the individual the court said no that's not that's not that's not that's you had i'm not talking about comparable i'm talking about the fact that the person gave a contrary description right you don't if if you don't if that wasn't produced to you you don't have that nice aerial to your boss i see what you're saying that if the recording is like the sole evidence of the fact of the contr statement and i guess that's where we have the problem here because that recording happened if it happened when they were with miss send of always giving the koreans you can ask her what she said and you have the notes of the officers about what she was say sane any of the officers that you interview about what was said the only reason they can allege is anything about that recording if it existed and if it had anything on it that would be at all of value to them is based on what people at the time said happened during that statement it's by definition would be the essential elements because they have nothing else they don't have anything that happened afterwards like they said you know it missed sand of all came in he said you know in that recording i said this they don't have that evidence which is frequently what you have in the very cases they don't have anything like that all they have is at the time and it was part of the trial she said something different initially than she said later that was she was cross examined for two days about that and and they knew that because the officers took notes they knew that because she admitted to saying something a little bit different earlier than later and now they say well if we had a recording about the different things she said that be better for us well why do you think it would be even helpful because the officers the time recorded that she said he was in his late thirty's versus use fifty six why does why do we know that we know that because they had these sessions essential facts at the time and she was cross examined on those issues which they which they have in their pleadings and that's that's the fundamental is they don't they they can't show that they didn't have the essential facts that access to the witnesses and examination witnesses and more fundamentally as you pointed out they're just guessing that this recording would have anything else or anything different that would be of any line comparison to show how it was almost wasn't different at all and i believe in the reply appellants it met that the reason and then they argued about the first amended complaint stead of the second because there's really no difference so it's really it's really about you know we discuss the second amended complaint is that would be the operative pleading just to make sure we're clear but it's really the same when you try to cite any subtle differences that there were but nothing functional and this was after that you know the first minute of it was dismissed with a very long detailed order by the courts and this is you need to tell them which reports you tell and which individuals and what they did so we can examine whether that meets the fabrication test whether that there's something wrong with the arson report that you have to tell them that and the court even said you know i'm not telling this anymore i've told you several times the last time this is how you have to change your and your complaint and they refused to do it but i think it was a rule sixty motion was what the basis for the rule sixty motion well that they failed to file an opposition to our motion to dismiss the second complaint until it want to file fifty two days later and the court found that that was not excusable neglect and they filed a rule sixty motion to be able to file their their opposition or opposition and i think that i think it's they've argued i think agree that's that's moot because they're conceding that they're not going to ask for leave to amend so their complaint rise or fall on their case rise or fa with the second matter that's why and when and also they make the argument i think they're also correct that we don't suggest here that there was an argument that they could have made related the second and your point that they're not making here and therefore they waived it were not the searching that we are making that argument about thank you i'd like to address the brady claims because opposing counsel's arguments repeatedly rely on drawing in for instance in their favor that they're not entitled to at this stage when you look they're not entitled to the in pled our allegations properly these are factual disputes for later and are brady allegations are solid here we have a complaint that alleges what was suppressed a sketch and a recording we have a complaint that alleges that the evidence was favorable and gives you reasons why you shouldn't why why that's a plausible allegation that cried benefit cation was absolutely wrong that the defendant suppressed the evidence that the defendant suppressed even the existence of the evidence these  are the you know by not documenting it those support that it was favorable and then as your honor pointed out the only thing we have to prove is prejudice you don't get into the young blood stuff if we can allege i'm sorry not true but allege prejudice and here have impeached testimony so i think there are very clearly brady claims here i'd also like to remind the court that the sandoval's description doesn't necessarily support person i mean what she described was somebody dropping a bag off somebody who was the tenant age probably an ex boyfriend dropping things off could have dropped the cigarette could have dropped the match could have plugged or unplugged something could have knocked over a candle you had what was it what we now know through modern science was likely an accidental fire and a fifty six year old man who had no criminal record whatsoever who was sentenced to life in prison and served sixteen years because the defendants showed up and without ever setting foot in the building