and the defendant's the apple e submitted admissions to the plaintiffs to answer regarding in this case they submitted sixteen emissions twenty three addressed the city of pasadena which was at the time dismissed from the case they were not a part of the case and they have been dismissed by the district court up on a motion to dismiss so these admissions do not go factual admissions are they may not matter that much in the ultimate resolution where does that leave us which he could have been arrested i think not in the admissions that not in their it's immediate admissions to us what about the interference with the officer of the reason officer would have taken what she had gone on because and also not only the deposition but the video which was taken at the scene disputes that because not only is there one more in the video than i can the video shows the people on the outside of the car done don't really show what's going on inside it hondo grabbed his hand which he took to be interference with his efforts to subdue otherwise deal with with the other person in the car so take that as as  probable cause to arrest ms alajajian but that is not the underlying premise in this case ok what else do you have  addition most of the questions that are i guess their strong question very evidence to enter the missions again they were improperly tot's leave conclusions there's a video to show that the emissions that were deemed immediate were incorrect and they don't specifically address the facts which i think is very important to this case they are not specific fact emissions here that address the facts of what happened on that day that they're relying upon two for the summ duties some because there's no finding now that's effective sure that can be effective for the fact finding this particular case which is why they're not able to say that there's no controversy in evidence had they had a conviction your honor there would be some sort of legal finding made and we could contradict that legal finding with our evidence but there's no legal finding because their case was dismissed if i may we've all been there i know this action was a survival claim and when when it was found why because she was already deceased and we already know that the only issue with the survival claim being different than that of a personal injury claim with the person who is alive is that the deceased so that the plaintiff steps in the shins of the deceased person and carries on the exact same claim that the deceased person would have had if they were a lot so we wanted to put that out there because that's very important  there's no prejudice they're not prejudiced they're not caught by surprise and so there's no reason that there's did this is an improper switch and parties and because there is no improper switch in parties the claim easily relates  well they issue was that an airhead law can bring or survival action in a dish to court and they could maintain that survival action for four years without amid a story the a state we were forced to administer this is sta on the motion to dismiss tz day we could not with course we survived the motion to dismiss so there was you know error for peel in that bases however when the defending its filed or the up telling its filed there are a summary judgment there was an issue such as this we stated that she was an heir at law so we just wanted to bring that to the courts attention as well that there was a misstatement in the order it's pretty straightforward and i think we kind of took a for any reason let me take the appellant's argument in the order in which they presented it if it is correct to say that some of the requests for admissions dealt with the plaintiffs appellant claims against the city but the others dealt with the claims against the officers in ms all one hundred for some reason although represented by the same counsel that asked and more than one occasion for leave to amend responses to requests for admissions that have been deemed admitted in which the trial core pointed out had been deemed admitted mr hall hundreds counsel never asked for the opportunity to amend those deemed admissions and having been deemed as admissions they are fatal to ms oh hundreds case it's hard to argue otherwise and i think judge ellison demonstrated that in his to sink opinions but turning to judge south which question and the point that the oppose of raise that even if the court were to find that for some reason the admissions were greater it does seem to me there's a pretty good argument that most of those are not valid requests for admission i'm not asking you concede that it isn't their problem that those are really legal conclusions a lot of them going to qualified immunity use of a quest for emissions the question is not well put but can you respond to it while you're at or maybe if it gains me a little leeway i'll concede those as they relate to the city because they're now moved  i don't respect where i don't agree i think that the way that they're worded they are asked whether the plaintiff has disclosed or identified or has produced evidence that would allow the plaintiff to prove the elements of the plaintiff's claim they are not geared toward a legal question of whether an officer for example is immune and particularly when we talk about the ones related to the officers i'm looking at that are pages produced a document which shows and then it relates to the legal test of immunity your honor is correct about that but of course this court has held admissions that request a factual admission that relate to a legal test are proper admissions and so if i asked a plaintiff in a from a simple guys your honor knows i'll be simple in a car wreck case the plaintiff has no documents or other evidence that shows that the defendant was negligent that is not a legal conclusion that is a question asking whether there is the excessive factual question which is whether the plaintiff's has evidence in each of those request as they relate to the officers your honor specifically asked whether the plaintiff has disclosed or produced or otherwise identified information that relate to those legal tests what is your best case to support these are proper requests submit an excellent point in in question mr plummer which is even if the court were to say that the admissions are not sufficient on their own to require summary judgment the evidence certainly is hundred did not brief in any practical manner in this court the question of the existence of evidence to sustain her burden either to show a rest without probable cause or a lock of qualified immunity for those officers who believed that there was probable cause in fact there are two pages in her opening brief pages one thousand and twenty one that simply argue about the in conclusive b michelle one hundred minutes that she reached into the back seat to try to grab something from is going a i think it was the cell phone while officer smith was attempting to subdue then there's no dispute as to that occurrence and miss all one hundred never denies not only should not deny doing that she doesn't deny that officer smith could have reasonably perceive that to be efforts to interfere with his hands trying to grab h or so the question under the probable cause test is could a reasonable officer have believed that that was an effort to interfere again the fact that it occurred is a disputed and miss  no evidence that a reasonable officer could not have perceived that to be active interference is it true that you would be dressing it earlier no camera shows any of what was going on inside the car and so that's true but respectfully the court doesn't need a video because ms all one hundred dollars degrees in deposition that that's exactly what she did and so the court would have to find that no reasonable officer could have perceived that to be interference to find that officer going on there was some potential whatever she was saying whatever criticism shoes express and towards what was happening to the driver are you relying on any of that as an additional interference sign of what to make of the grabbing of the arm or otherwise no no your honor it is the physical effort to reach from is going to at the one hundred was attempting to do but as to verbal criticism no judge i lost that one many years ago and what you want to see if you rely on that not any more no i think  criticism is within the constitutional right of all of us to question the police it may not be well advised but it is constitutionally permissible no officer smith the rest of his own one thousand as the report demonstrates and as the district attorney charged her for physically interfering with officer smith's efforts to arrest ms all one hundred dollars and if i may then even if the court thinks there's some question as to whether that establishes probable cause the court still has to grapple with the question of qualified immunity which again was ms one hundred dollars burden to disprove and a burden which she simply neglected and officer smith testimony demonstrates that a reasonable officer could have both perceived her conduct to be physical interference mr otto the assistant district attorney perceived to be in violation of state law regarding interfering with a peace officer and so even if we get to the level of qualified immunity because it was the plaintiff burden to disprove that immunity and whether the court chooses to consider the admissions would seem to demonstrate loudly that there is no evidence to dispute community or simply look at the record on the summary judgment the court will see that there was no evidence to dispute the presumption of immunity i would be remiss if i didn't speak to both officer salazar and thorton briefly which would be to of i should point out one other thing would point out as well even if this is a question of interference the record demonstrates ms one hundred violated the transportation code on several counts for that or numerated the brief not the least of which without insurance a driver i'm still only over a vehicle who intrust the vehicle to someone without a license or suspended license or knowing that they have no insurance violates the transportation code in atwater versus largo vista the supreme made clear that those transportation code violations themselves provide probable cause for arrest even if they weren't inserted at the time as the basis for the custodial arrest in the i should point out that officer s i assume that you did not have a driver's license was lying at the time how much of the rest of this was known to officers if at the time if your honor means by the time lied that he was a cheat that she was not authorized under the insurance to be a driver that that it would be necessary for a logger to know that you did not have a license so to what extent was that no one of the time when she was asked does most of this come up later and is being  by the district attorney's office out there at the scene after the u turn how much of that was known while at the time that at the time of the scene you're out it was known that missile one hundred that may have gone a had a suspended driver's license i don't know the answer and i don't do that rely upon officer smith's arrest decision which he made before officer solos are arrived i couldn't tell you why officer thornton is being sued other than his presence on the scene and one of the booker said the problem was that they sued in the name of the wrong plea to the record demonstrates that with all due respect to the deceased they sued in the name of at all a part of is going to death there was no authority whatsoever to sue in her name and notably miss booker speaking in the st person in her briefing at two thousand and sixty two admits that she chose to file a lawsuit im is going to name knowing that ms goni was deceased and thinking that that was a mechanism by which she could reserve the option to pursue a lawsuit later if i may i would submit this would be like a plaintiff's attorney meeting somebody who has a personal injury claim and then losing touch with that person in shortly prior to limitations running suing in a fictitious name not even the name of the person who had the legal right to sue with the idea that one day i might find that plaintiff again or someone who can stand in their stead and i'll simply submit them then later in this case three years later in the texas supreme court cases which the united states are not in any way similar to this one because neither of those cases dealt with the filing of a lawsuit in the name of and again i mean no a problem the problem but it certainly is ms her now and it is in with grant to the opportunity to amend her responses to the request for admissions yet chose not to and so they were once again deemed admitted but even if the court again does not believe that that is sufficient on its own for summary judgment one officer smith moved for s supported by his own testimony by the the two officers sollars are in thornton who all three of whom were required to remove ms going in from the police car because of her physical resistance again  fernandez would be submitted absolutely no evidence in support of the contention that officer smith had used excessive force and in the face of three reasonable officers testimony and if the court chooses to exclude officer smith because he's interested in the outcome i would submit is just as reasonable but officer salazar in thorton demonstrate again without refutation at all in the record that m ms hernando's as was her duty either as to the question of the use of force the constitutionally of the constitutionality of the use of force or qualified immunity and accordingly the court should affirm the district may i'd like for things to be very clear defense only filed motions to compel against the me that is why we moved to withdraw the admissions demanded needed against one party and not to the other let me start off by saying that the admissions are part of the record and if you look at them they're made out to all plaintiffs which is pretty ambiguous in a case like this w something to deplane is that like we have so we have to look at the stage that we were at in what plaintiff was there at the time in which they filed their motion to compel so because they only filed one against  maybe a response on nothing more than these or improper admissions or something would have been a good thing to do can you concede there not that you're somehow penalized for that but informing the court of of why these are improper or otherwise not just staying silent makes some sense yes ya know hindsight is two thousand and twenty but at that particular time the court only opened the gate with respect to goni because that is all they filed the motion to compel on however we should four through twelve speak about goni who was not even in the lawsuit at the time it was hernandez at that particular moment and again they only asked for conclusions of law now i understand that counsel's argues that he ran a thompson be beastly and it was a mix but it's no mix this court has been very clear with respect to the balancing test and what you all state is a mixed a question of fact and legal conclusion so that it does survive and the balancing test is not in the defense it's a vote on apple e's admissions are no good if you look at your standing law with thornton was brought into the lawsuit looked at me as a bystander we didn't really speak to thorn in our brief because he has claimed or irrelevant with respect to the order that was handed down by the honorable judge ellison your honor however  it's a bystander claim and it's said there's a excessive force as well which have a direct liability and a bystander claim against him argumentatively he held down a while she was being tasered by other officers so he was active however  someone may decide differently and we are you argue that's a question of fact but that's why he's here in addition to that the transportation code violation has nothing to do with the underlying interference with public duties case that al one hundred was actually  charged that's why the distributor what we don't know but the district attorney dismissed it the same district attorney who brought that case decided that it was not a good one and that alleviated us from having a finding against us when we came on the civil side of so again there are no findings that's going to be an issue for the fact finder the fact that she was charge except none of these things are relevant other than the fact that it goes to the claim that we have regarding false arrest  order and the court never got that far because they threw it out on admissions that were improperly deemed admitted by the court and then on a relation black back claiming that we believe that we we made properly in addition