thank you yawners over the last fifty one years i have handled approximately fifty safe deposit box cases sometimes representing the banks sometimes representing the bank's customer and sometimes being retained by one of the other as an expert to testify on banking practices and procedures without exception all of those cases turned on the answer to one question step that leads to that question your honor and that is the test the plaintiff who are the customer will testify i had certain property and i put it into the safe deposit box doesn't have to be accepted without question no it does not have to be accepted without question the point is if it is accepted by the jury then the plaintiff wins there are whether or not a material issue a factor was raised that we garden that matter exactly right and when the plaintiffs put in their testimony here saying i had the property i put it in and it was a return that established their prime facie case in the district court found that to be true the bank accepted that is true everybody proceeded on that basis the second step of course is that by are presumptions raised that have to be rebutted i'm not familiar with the case so enlighten me please yes to in the summary judgment context where a presumption is phrase that has to be rebutted i think in every case i've ever read that's been a presumption and i'm asking you for a summary judgment case because generally a summary judgment the issue is whether or not material issue of fact has been raised ok and in certain cases like title seven cases for instance there there is burden shifting and presumptions but in the general summary judgment context can you give me a case that uses the presumption an s i don't know if i can think of a specific case where it was a summary judgment and they talked about the they proceeded on the basis that number one there was that the testimony of the plane is that they had put property in the box and then everybody acknowledged that that in and of itself raises a presumption that the bank has a presumption when the plane has testified that there was a property in the box that's their testimony that is their evidence and the bank never contradicted that the bank never rebutted that the bank never contest sense the plaintiffs have their testimony that raises a presumption in the bank tries to rebut the presumption by saying we follow standard banking practices and procedures and therefore which show that we're not negligent and rebuts the presumption and we all get that far in this case but what then did happen then it at that point was that the court failed to consider that after that presumption is rebut it it simply disappears then what happens and it's absolutely clear that the testimony of the plaintiffs is their evidence and it's going to be weighed by a jury and the bank will put on whatever evidence it has and then the jury make a decision as to whether or not the plaintiffs are truthful that they had property in the in their that is was not returned it well the summary judgment context the court has the obligation before allowing a case to go to the jury to determine if there is a material correct and isn't that what the court did in this case made a determination that there was not a material sure fact remains that all court that's exactly what the court did only it was incorrect in doing so for two reasons number one the the bank had the burden of coming forward and rebutting the presumption and what if they did what should the court of the bank failed in their burden of production then they should should have denied the motion and set it for trial so not great summ produces their evidence that i put stuff in the box and later there wasn't that the stuff was gone and that then creates a burden on the bank to burn a production in here i know you dispute whether they met it but we can just assume the bank met that with their showing that they did everything according to the standards that banks use in terms of how they monitor safety deposit boxes in your argument is that's where the trial judge went down the wrong path because he granted summary judgment to the bank and he should have said this goes to trial yeah well and that's only in this case because the bank was bringing the motion but to come back to this question here if the plaintiffs had brought the motion for summary judgment and they had put forward the evidence i had property in there and was not returned the bank would have had an obligation to dispute that to make a so that there would be a disputed issue of fact it cannot be decided on summary judgment and so if they had not done that yes the plane is would have won on a summary judgment ok because there would be no dispute in fact but in this case the bank brought the motion by doing so it could have said well we dispute whether or not there's any property they could have the they didn't have property they didn't put in the back but of course had it been fruitless because the players were said well yes we did i put it in and it's not there there's a disputed fact  by allowing the key of the customer to be in the possession of some of its employees in both cases if the standard policy is always to make sure that the customer's key is exclusively in the possession of the customer at all times right including the time when put in the sate the puzzle box the customer's there and keeps his hand his or her hand of an employee of the bank to make a copy of the key it's one of the two points that we have now what's your evidence that the customer was as a result of the actions of the bank to pride of exclusive possession of the key while we have the testimony of for example arson are banyan when he said i never took the key out and put it in the safe deposit box in key so that a copy of the key could be made by palming it or by photographing it was there any evidence of that he did not notice anything out of the ordinary right there were occasions when instance the customer from possession of the key outside customers view there is there is a there is indirect evidence that that happened in the sense that if the customer had property in the box it's telling the truth and it was gone in the bank has no explanation like there was a fire or something that's indirect evidence that some point in time a bank employee had access to the key such that he could he  key because of the customer's action in not keeping the key not i'm asking you this was any evidence that any a bank employee took any action that prevented the customer from keeping on interrupted possession of the key either in site or in his hand no evidence that that he couldn't have kept in his own possession banking practices are borne wasn't there evidence from a banking practices expert i'm glad you brought that up yes there was they had their ir she outlined a whole bunch of practices and then she said and the bank's practices were consistent with standard banking practices but that's not the issue the issue is not what the standard i mean it could be an issue but in this case it that's not the issue the the practices of the bank are only as good as the employees follow them up for purposes of the  judgment hearing the banking practices experts say that the practices of the banks in question were consistent with industry standard that's that's right she said they're consistent with industry standards the question is gents there has the breach has to be shown by the person who's asserting negligence and that's your client that's correct but we are aided by the presumption that the bank was a fault that's why the bank has to come forward and show that they followed us to the question earlier if we disagree with you regarding your presumption theory you lose because it seems to me that you're saying that without the presumption without the presumption your clients cannot they meet their burden of showing a breach of duty well if the present the we're we're going to admit for just a second here that the presumption disappeared but that doesn't mean we lose because the jury could still infer from the facts that the bank was at fault got to raise a material issue a fact before you even get the call k when the bank went when the customer testifies i put it in there that is there is an inference that it's the bank's fault if they don't give it back and that is also why we have a presumption we have that inference that raises the presumption good morning members of the court my name is trish allegedly now and i represent citibank with the court's permission i would like to go through a few items that the appellant has raised and address what the law actually is on these issues and what the facts actually are that were presented to the court in the motion for summary judgment the first issue is what i'm terminating or i'm i'm qualifying as the negligence slash burden issue for my own personal  purposes which seems to be the issue that everyone is really consumed with in this case and with regard to that issue i think that there are many points that everyone in this case can agree on first of all we all agree that the  there is a practice by the bank to make sure that the customer always has a customer in her possession is it not a breach of that policy to allow the key their kid dangling in the box that would be a breach of the protocol absolutely because those keys are supposed to stay under the control of the customer and the bank's guard key is supposed to stay under the control of the bank  position that vaguely recall insufficient personal knowledge from which a witness can testify yes number one and also have a case it says of if you style your knowledge as very vague recollection that is what you're really saying is that weiss a statement of a vague recollection is insufficient to create a tribal issue a fact because it is so weak a statement of personal knowledge that courts would not accept that as well as the fact that there is no causal link between her vague recollection and her items allegedly missing as i was starting to say the weiss's had this box for five years they went in and out of this box i pawn it or make some other furtive move with respect to the key then there would be a causal link i think there potentially could be a causal link there but now we're talking about hypotheticals and i really don't want to get down that rabbit hole because to there was absolutely no evidence by any of the plaintiffs in the matter as a matter of fact it was under spewed it in our you are undisputed facts that any of the plaintiffs saw a employee from citibank copy their key take a photo of their key or palm the key there's just no evidence of that happening for the five years that they went in and out of these boxes ok so moving along with regard to the renting of the boxes we've created a bale or bailey relationship and i think that the law is very clear that in a bail or bailey relationship a baileys duties citibank here are a bailey standard of care really just much ado about nothing they're creating this whole argument to supplant the procedural rules of role fifty six and the long held law in california as to what evidence is necessary in a safe deposit box case to prove or disprove negligence all counsel if the plane to declare that there was property in the safe deposit box that they put there they didn't take the property out in the property is missing is an inference then that something at the bank occurred that caused their property to go missing i would agree your honor that there is an inference but banks are in bailey's in a safe deposit box situation which is a unique situation for bailey's because it's a blind ailment right we have no idea what actually is in the box but i would agree that that does create an inference for which then under the case of webber vs bank of tracy the bank then needs to come forward with evidence that it met the standard of ordinary care in the industry whether cameras the print is on the premises within the safe deposit  arena i will submit to the court that there were cameras in the have to keep the two branches separate in my mind in the sherman oaks branch there is a camera fixed on the door of the vault and in the granada hills branch there is a camera fixed on the hallway that leads to two vaults one vault is the cash vault and the other vault is the vault where the safe deposit boxes are kept it is my understanding from banking practices that there are not cameras in the safe deposit but box vaults themselves to preserve customers privacy so i like to clarify if i'm hearing you correctly what you're stating is that if the bank can show that they meet the standard of care then to survive a motion for summary judgment the customer has to show more than i put property in the box and later that property was gone that's correct honor right so is part of the standard of care a warning to a customer when they take a bank that you better keep your eyes open when you come into the bank and use your box because your property might not be there later i think the standard of care your honor is that as  pratt in this case which did not include any type of a warning like that and there was no rebuttal evidence or just dispute as to her opinion of the standard of care for example with the one plaintiff who had to chase's child i think any parent knows that when your young child runs off you run after the child to make sure the child is safe and you might leave a key in the box now according to bank custom should never leave that key in the box you should always have that key in your possession but every parent is going to run after that child so whose fault there should the customer have been warned when you come back to this box don't bring children don't bring things that might distract your ten keep your eye on the key at all times because we follow the standard of care and when you come back that property might not be there unless your paying attention i do believe your honor that there is in the rental agreement a cab to renters that talk about that you are responsible for  make sure that you keep custody of your key don't give it away don't let anybody you know borrow it or anything like that so i do believe that the customer does have a level of a duty to protect their key i mean these are their items in there and it's without dispute that really the only way these boxes can be opened except for drilling which would show that you know it was drilled is for the two keys to be used so i do believe that the customer does have a level of care that it must follow to secure that his or her key and you're asking us to agree that the customer mr mccauley clients here have to show more than i put something in the box and i came back later and my property was missing in this case yes your hon r because we have presented evidence which we're required to under weber vs bank of tracy to show that we met the standard of ordinary care in the industry leaving the an impression was made or he was made i believe so your honor there must be some causal link between the alleged breach of the standard of care supposedly and their losses what of bank employees still have been there at that point if the customers he was still in the box with a bank employee have been present at that time under the normal practice no the bank employee would not because in what ms weiss testified to as well is that once the box the door was opened and the box was retrieved from its sleeve in the box she would then be a scored out of the vault because customers can't remain in the vault by themselves just she would be a scored out of the vault by a bank employee who would then go back to his or her work doing whatever and when she was instrumentality which causes the damages position of the defendant which it was when the belgian went around to chase the daughter because the only person there was a bank employee isn't that enough to show causation seconds that mr know bondi and chased his daughter that he chased her out of the  room and again there is i believe a duty on the part of the customer to guard his or her teeth it's not that they could just you know leave it at a seven eleven and then blame it on the bank i have to apologize if this is the first time i've worked on a c involving a safety deposit box but i worked on a lot of cases involving motions for summary judgment both as a lawyer and as a judge and what's the banks position is the decision that you met the standard of care regarding safety deposit boxes is that an issue material issue of fact be created simply by the plaintiff's evidence which is i put property my property my valuable property in the box and i came back later and that property was gone not when the bank or the bailey in this case comes for and says we met the standard of care which is the standard that's required under weber versus bank of tracy one more question yes and this has to do with mechanics when the safety deposit box is opened and the key of the customer is dangling from the face of the box can the key be removed at that point you know your honor there was there was talk about this while the case while we were taking depositions so interested in there is one thing that should not be overlooked and that is that the bank had the burden of proving it followed standard banking practices regardless of what the practices were and there is no evidence that they did the two declarations they put into the case talking hari and clarke their testimony was the procedures were followed which is conclusory and uncorroborated big which is what they're complaining about my client's testimony which is baloney because my client said i personally did it hari and clark never said i have personal knowledge because i helped the customer into the bank that the bank's procedures were followed to make a move to strike the davis on that basis we well well pennies on the dollar when the customer with the bank knows you're going to put in something valuable now that's the point of a safety deposit box the bank has no idea what's going on what the bank does not want to day that's well that's they would like the privacy but they don't expect it if they put in a diamond worth a thousand dollars if it's lost because of the bank's fault that they're only going to get ten dollars your c k that would be the argument that the bank would make the problem is that they don't tell the customer you know like in the case that the