start with the race judicata argument and i think when we're looking at this well first of all like point out that the county of los angeles has never and the social workers have never pointed out anywhere in their br what the primary right is that has been litigated in both these cases the district judge attempted to come up one came up with right to custody of gary now a primary right is the legally protected interest which is harmed by the defendant's wrongful conduct and we would suggest that the legally protected interest in this case is not the right to cause in the wrongful death in this case is not the right custody gary but the right to fair due process legally protected interest in the wrongful death case was night was not the right to custody together either it was the right of a child to be kept safe in foster care at the same time i don't think that matters at all because we had the right to choose our forum i mean both the state and federal courts have concurrent jurisdiction over civil rights we could have brought this in state court we wanted to bring in federal court for lots of reasons and we had every right to do that i understand the district judge didn't like that and but that doesn't make it the same primary right now doesn't mean we can't and and like to move on to the issue of materiality there was a lot made of the in both the district judge's decision and the county's arguments about ms hart at the juvenile court hearing not being straightforward she was obviously distrustful of the court and the whole system and she didn't want to tell her child was a first eventually she did and then the the argument is put forth by both the stated by the district court an argument is made by the county was senseless that this was the reason why she was detained by the judge of the child was detained by the judge the of course the obvious problem with that is it doesn't fit within one of the statutory grounds under section three hundred of the california welfare and institution code a judge can't detain a child for that kind of reason the child has to be in danger we detain children that are in danger and the child is not in danger because his mother didn't want to tell the judge where he was at that particular moment i think what the judge was talking about though and this is something we haven't mentioned the breeze is i think he's really talking about when he said he took it into account credibility is if we look at section three nineteen of the welfare and institutions code which governs detention hearings the judge is allowed to examine the parents and the child in other words get some evidence it's still a private fashion standard but the judge is allowed to examine mother and he did and he's suggesting to her maybe she was not all that credible because of some of these other issues but again that would not be the basis of a detention detention has to be based upon  should have been concluded but we look at it do we do we say if it's true or if it's not true the result will be as you want us to argue it well i'm not sure which allegation referring to but the only allegation that i think would have would have been grounds to detain the child was the allegation that she was using and  using drugs and alcohol and that as resolved the child is in danger yes ok those statements were completely false well they were completely fast at the time and i'm wondering if and that's what i was completely false at any time you mean she doesn't have a history of she has no history of drug or alcohol abuse the county of los angeles itself in the investigation in a prior case concluded itself there was no evidence that she ever even used drugs or alcohol much less of use than the county of los angeles had in their possession three drug tests at the time of the detention at the time that they filed these planes that said that she doesn't using drugs or alcohol  had absolutely no reason to make this allegation which is why we believe that the motive here was then one to close this file that had been open for months as quickly as they could and one way to close  statements within the various reports from him and i gather your view is that nobody should believe that but what the grandmother said was i thought she might have got caught up in it in her when she was in high school i think she ever observed saying that she suspected the grandma saying that she suspected and in an investigation of that in the park case and a conclusion that was completely wrong and then the social workers and this case simply looking at that allegation and saying not only is there a history of drug and alcohol abuse but now she still using it and this child is in danger for it because it and they were completely ignorant of that they had no idea those statements are true or not and they i think that you see in the district court's decision the judge trying to find a way to further define this idea of a reckless disregard for the truth one of things he looked at which i thought was interesting is he looked at the california jury instructions specifically cassy sixteen zero three which talks about a reckless disregard and intentional infliction of emotional stress case and under that standard and intentional infliction of emotional distress they say reckless disregard include situations where the defendant gave little or no thought to the problem fact of her conduct well that would suggest that a reckless disregard for the truth would include situations where the defendant gave little or no thought to whether the matter stated was true or not i think that's what we have here they gave absolute i mean they looked and saw that there was an allegation in the past they saw that that petition was dismissed the county has not addressed the primary right the primary right here was the damage associated with the detention and later the death plaintiff's counsel police counsel puns counsel argued argued suffered from the death of that child the first state court opinion ruling your own there's a judah kid in the matter in favor of the county sensually that the county was not liable not responsible counsel would have court believe that he can proceed in federal court let's play it out the mother would have a claim that the kid was detained and she as he will argue will say i have suffered emotional stress because my child was detained and my child died and i'm entitled to all that emotional distress you have a state court opinion already stating that that is impossible to happen because of aspects that your keep your judging on now was sufficient specificity that it was clear that each of the issues argued in the federal action were dealt with by the state court as the as your honor describes it i can't say that specifically your honor but what i can say is that there was a cause of action for negligence there was initially separate cause of action it's in the papers that were dismissed with prejudice where there were allegations that the county was wrongful wrongfully took the child and we have an opinion at the end that states the county is not responsible for the death ok well let me let me just ask as this is as i understand it from i think the record it appears that the state court action basically sounded  given the fact that there are different parties to some degree involved given the fact that one is constitutional the other is toward claim how how clear is it that race judicata pleasure i mean we certainly don't geisha of the same issues these seem a little bit different to me why it why is that wrong i think it's wrong as the case that cited by the district court that i'm hoping pronouncing correctly don't have my notes i kno talk and that your honors is instructive because in that case the first matter was in torts it was were actually was in contract it was a contractual dispute with a teacher who lost her position not constitutional the second matter related to a federal right that is constitutional in nature a district court in  case held the same thing that i'm arguing to your honor's it's the same primary right doesn't matter in what theory this call whether its contract whether it's tort whether it's constitutional it is the same primary right no matter how you call it what type of claim what type of tort you would if you breathe in yes i am and i'm saying and i apologize if i'm not clear enough on the issue of the issue preclusion but i'm also saying it's a factual it's a collateral stoppel type of where you would have inconsistent findings with respect to the damages allowable so with that you want of there's not a question of that like i'll move on to the other topic with respect to the judicial deception found to have not been the actual parent social workers of course would not that time but there was mr brown and there was the mother sort the court had jurisdiction there was a both be detained let's go back though to before i get there to the first case that's pretty important there is a first child who's already in the system there petition to sustain there's a voluntary place of voluntary placement in effect and whether something is true or not is a ready herring and i'm not trying to light a cavalier a measure social workers are rely just like district attorney on certain allegations made the grand this is a grandmother this is not somebody who is way out there this is a grandmother not just the grandmother the biological or the biological wrong word but mother's mother the mother's mother an adoptive mother but still a mother's mother is telling social workers for the first dependency case involving a first child mother is using drugs in high school by the way this lady is i think eighteen years old at the time she's a high school and this is a high school twenty five years ago like me and this is this is someone who is using high in drugs in high school and she's a high school graduate so petition is later sustained on general neglect or at least a voluntary placement on those allegations that was on the first one was on the first child on general neglect is because the mother left with the grandmother and then walked away and then she's going to enter into a placement and that's why it was adjudicated really i mean that's clearly not the issue was going on was a lot more than that mother did not even keep in to do with the fact that when we get to the second case the short answer is somewhat because when we get to this remember getting to the kiddo's design going to get there right now we get to the second case we see the social workers and they're seeing the history they're seeing that they can't find he's reviewing the materials he's making a decision and it's not just based on one allegation it's based on numerous allegations and those allegations according to the judge's mind looks at it and he's thinking ok there's enough to detain this child  only after that order was issued or you know there's some type of motive the motive is we want to detain this child because we can't find the child for four months ok well you can just close out a file you don't have to detain a child and that's  not the case you don't have to detain a child and make up lies in order to just go ahead and the ten child they can certainly cause a fall out for numerous reasons but here's the bottom line the bottom line goes to this whether something is true or not is not what brings a constitutional violation that's not the issue or not here at the lower lower court for dependency decided something strong not we're here to decide the two elements for that claim was an intentional reckless disregard we can only look at the to find it but they are her declaration is on the record with respect to what she was involved in the record specifically does the the allegations that the tension report lays out or seventy eight lays out the issues  respect you the detention report and what the office with the dependency court have s s t or eighty two dash ninety six s e r four five four six sixty one through sixty three all these things show all of the matters that the dependency court had as a basis to do what do they show you that gives the basis for the day they say that the mother was ill living in an empty storefront these are things that they knew at the time again whether they're true or not is irrelevant empty storefront that the mother did not care for her medical condition at the time klim idia the fact that she was in an abusive relationship the fact that she had a prior child i'll go slower and lay off the monster drink some sort of with emotion was a drug abuser it says that it says that the grandmother alleged it but that wasn't sustained on that petition that's true it does say that but that wasn't the only basis for the tension in the second case and the court actually  they see all these other things as well with respect to that she was possibly prostituting all these different things that are allegations that lead to make that decision it wasn't just based on drugs it is your position the county's position that there were a variety of bases for detaining the child some of which are not challenge by ms hard some of which are but all you need is one or two of these other ones and that was sufficient and in the stores i don't i'm saying that because one of the things your honor is is that it has to be material you may be saying it but you see you say there's a lot more words in the judge love the death certificate come up with a few things and say she's doing this is doing that maybe she's doing this it would have to be some thing there that constituted neglect under the statute that put the child in danger let me ask you where was the da let's just whether that did this or not assume all of the three nineteen she factors were considered and there were say ten things five of them were all but five of them were true if there were allegations or there was evidence in the detention report and it also needs to be in the petition instance but if there was evidence of neglect facts sewing neglect that put the child in danger under section three hundred then yes that would be enough but they don't have that here if we look at all of those other factors none of them rise to the level of neglect under section three hundred and there is absolutely no reason at all for anyone to believe that this child was in danger except for the fact that they told the juvenile court that he was in danger because his mother not only was using drugs now but i history of it and they suggested that that was why the other child was taken even though the other child was taken by hearing that she never got a notice of a petition