matter for to be successful in a post from motion for judgment as a matter of law one must find that no reasonable jury could have concluded the way they did in this case a reasonable jury could and did find no constitutional violation occurred when a social worker interviewed a child at a public school during the course of a child welfare investigation let me ask you this ok so you had a jury trial and you want but then the court set aside the verdict and then the court also i guess in the alternative said it would grant a new trial if that wasn't held or something along those lines that's correct so is that are there any allegations of instructional error here there are allegations not i specifically but as well that either side said that that that the jury didn't get the right instructions but i believe and that's a pretty easy straightforward question is such an instructional there were claims on appeal not specifically ok so who are we on the same practice yes that's i just wanted to know that because how that would relate to me as well is all right so you were stating the standard if if if the judge sets aside a jury verdict but also if new trial that's a different standard correct i believe the standard is that has to be against the clear weight of the evidence it has to be weigh against the clear weight of the evidence as opposed to substantial evidence supporting the jury's verdict the motion for a new trial conditionally the standard is that the evidence it was the court's decision was against the clear weight of the evidence but we do that i'm confused b which one we're talking about here but we reviewed the conditional grant of a new trial for abuse of discretion correct that's ok so let's just say hypothetically i'm not saying this is that hypothetically that i agree with you that the court should not have set aside the verdict right but then i go to the next area on the grant of the new trial if the judge just doesn't agree with you know how do i follow it that from the set the judge clearly thought that no one could have come to that conclusion that it was wrong as a matter of law as let's say i don't agree with that but then i get to the next step if i say well it wasn't met you know there is a way that the jury could have come to that but then when i look at granted a new trial how my supposed to look at that did the judges another standard there or did the judge just say i just i don't see how anyone could come to this conclusion so what i think this my answer your question when the court the district court granted the issue as a matter of law it conditionally granted a new trial if for some reason this court were to vacate that order or disagree so if you agree with the underlying trial court and the jury that that finding by the jury should remain there is no need for a new trial because i was just a conditional grant if you disagreed well it was kind of i don't think but there are different standards there so that's what i'm trying to figure out here they aren't that that's that's what we call double barreling something it's sort of like saying well i don't think there's any error but even if there was there it was harmless error there saying mike i don't think as a matter of law that they could have come to that but let's just say the appellate court doesn't agree with me then i'm looking at it and it would seem that we review that for abuse of discretion so that's a little bit different but i think you need their standard there is substantial evidence and more than  evidence to support the jury's verdict whether it's let me let me ask you what's concretely on my mind so you can educate me and correct me if i'm mistaken my thinking is the jury had at least some evidence for its determination that the girl was free to go and didn't have to answer questions at the interview and stay in the interview room until the social worker let her  go however the idea that a nine year old girl would feel free to go just because the social worker is says you're free to go get a nine year old mentally disabled girl seems really remote so i'm thinking judgment as a matter of law that's a stretch because there was some ridiculous evidence that if the jury believed that they could go on but new trial yeah it really is hard to so all the evidence was presented in the sixty trial about this entire case and about this child and about this family and the jury sat through all that evidence way to go for you just give me flaw focus on my question so the question is i understand how just thinking is a nine year old child free to leave can be a troubling thought i can understand that because a nine is a great you mentally disabled right well i don't know i am going to take issue with their word mentally disabled the possible autism spectrum but we have much more evidence about this child that she is smart beyond her years that she is intelligent that she says what she says none of those are inconsistent with a d h d and mild autism but nothing is showing anywhere that a d t would cause someone to not feel free to leave or not to speak their mind or not to say you know you know what i don't want to interview with you or i'm done with an affair could a v h d could mean she's doesn't pay attention well in class and she doesn't pay also think that's a factual determination of the jury was able to hear and the jury was able to weigh how did her eight thousand and eighty pos the impact her ability to leave all that evidence was presented and i'm sure discussed back injury deliberations and so i'm not sure what more evidence or what the plaintiffs would say would be brought in a new trial to help flush out this you know so the circumstantial evidence is permissible inferences are permissible for for  both the judge taking his view and the jury taking its view but on any post trial motion the evidence has to be looked and construed in the most favorable light to the nonmoving party and that's the defendant in this case where can you give examples of cases where district court's decision to grant a new trial has been reversed on appeal for abuse of discretion because it seems to be one of the more unfettered discretionary acts that a district court judge has i  granting a new trial and i think we're looking at another at least my question is in granting a new trial can you give an example where a court of appeals has reversed the district court's grant of a new trial  not to the judgment as a matter of law i think i think we found cases like that but but for just granting a new trial is this just an unfettered discretion that the district court has in any case i don't seem so i think they have to show i think the point is would have had to show that the evidence was against the clear way to the jury's verdict well i guess what i'm thinking your argument is that the judge did not agree with the jury after hearing all of that so but then the judge said ok as a matter of law i don't think that there's any evidence you're arguing there is that the dense and south out why that was a wrong legal can conclusion what else is there and they did the judge just not like the result and the judge would have decided it differently and is that enough to grant a new trial if you would have decided it differently so i don't think it's enough just to not like the result i don't want to say anything about the district judge but i do think the characterization that this judge did not like this result is clear through the records leading up to the verdict itself well i'm just trying to figure out what was different what was the on my understanding was that the law that the rules require you to conditionally grant a new trial before you do a judgment of this matter law meaning she was the end maybe you could address this maybe i'm wrong about this but ca could the district court have granted judgment as a matter of law without conditionally granting a new trial i believe so ok and i believe that for what he had entered into his order he did not give any additional reasons as to why he would conditionally granted a new trial he was of almost like a footnote at the end of the order and he just said that the evidence was not the guns the clearly the evidence and the the standard itself is that it's not outside the range of the evidence presented presented so if you look at all of the evidence that was presented there is no need to grant a new trial either there is nothing out there that is going  to come in and change the outcome because the evidence that was presented in front of the three were they had the opportunity to look at all the evidence came to the conclusion that neither the mother or the child's rights were violated is the  factual issue whether the girl was in fact free to leave or whether she was detained for that five minute interview yes that is correct and the question on a new trial is whether it's against the clear weight of the  to have exercised his discretion to grant a motion for a new trial he would have to have concluded reasonably that it was against the clear way to the evidence to for the jury to conclude that the girl was free to go and not submit to the five minute interview by the social worker at the school and that she knew she was free to go that's right because that paul correct that's correct ok a question how many jurors were there believe there were six jurors was it a unanimous verdict unanimous verdict does it have to be on a civil case yes it is because you had less than twelve that's correct was say we felt like there did need to be a new trial does the obviously the district court granted a new trial before the cap a decision came down from this court is it possible that we could say we were we're going to say there was no abuse of discretion as to the th amendment claim but kept changes that analysis on the th amendment claim and therefore we're going to we're going to deny or reverse the district court as to the interview because there's no causation there's no deprivation of familial custody during that five minute interview of the child at a public school but how would we do that procedurally do we just with i mean we are we reaching out for as where effect a judgment as a matter of law or a summary judgment on that standard it seems like so on at the summary judgment phase in this case that argument was made and the district court disagreed with that argument and loud that claim to proceed so litigated and then are you again in this appeal as well so i don't believe that there be any purchase of the plaintiffs in that situation but getting back to the new trial i just don't see that there is evidence sufficient to warrant a new trial that the santa evidence at the time given to the jury the plaintiffs have the burden at the trial phase to bring forth whatever evidence they are missing this argument i do i have trouble understanding what you mean by evidence i guess i'm thinking one piece of evidence that was in there was that the girl was knocking another piece of evidence that was in there was that the girl arguably had a d h d and another piece of evidence was in there that she arguably was on the autism spectrum and jurors all of them were once nine and many of them have had nine year old children and they know what nine year olds are like they can draw reasonable inferences based on their own experience that's how we instruct them so i don't see why there was no evidence it seems like there was evidence that you have a little girl called down to the principal's office or whichever office she was called down to because some adults want to ask her some questions and the whole issue was to she feel free to blow me off or does she feel like she has to submit the additional evidence i was presented at trial which the jury was able to consider was the testimony from the social worker that in her experience that she had many children both older and younger than age nine who did blow her off mean there was some evidence to support the jury's verdict you can't say there was no evidence you can and therefore you can say that no reasonable jury would have reached that conclusion that's a great argument for the j m o talked about the child what other evidence was there about the child so the social workers testified about the child the mother the father the biological father there was information from the stepfather who testified as well and then the written documentation the written documentation of an incident the court record where the social worker had talked to other collaterals for example the social worker talked to the child's teacher and that was written documentation in the court records that the jury was able to view one of the teacher say the teacher said that she was doing well in class that she was getting better or progressing in terms of her behaviors but didn't have anything outstanding to say that she was disabled or not functioning at that point you want to save about balance of your it's just one more sentence i think it's more than some evidence i think there is plenty of evidence for the jury to make all of these determinations and plus they are given instruction was about eight or nine factors only one factor would relate to the child's developmental disability if you want to call that eighty h t the other factors were the child's age whether the source you were told her she was free to leave whether there was any show of  threats and all those things combined i think that this court should keep the jury's verdict intact and i will research their estimates i thank you before this one in which her mother said we'd like to have an attorney present if you're going to do this interview and under the threat of removing the children the mother actually relented and allowed the social worker to interview the child so the child power she also saw that this social worker had excluded her stepfather from the home that she lived and it was just it was this social worker that did that can i ask a question about that does a social worker have that authority because my sense is that they don't when this went to the court the court immediately said what are you doing that that is the problem your honor part of the problem is that the courts the the family court system in the juvenile court system in california work on separate tracks and the juvenile court system has complete authority over the over what happens in the family court the juvenile court if there's a petition filed in the juvenile court if you will court can overturn the family court's decision and so what happened in this particular case was the social worker excluded the father  it had to do with the retaliation claim before but now i understand that but they says specifically plaintiffs do not allege the cap actually lost custody of his children as a result of defendant's alleged misconduct but it seems too sad a standard that you have to lose is your position as part of a part of it and let me let me ask the question this way before you answer because all of what you just preceded about the argument on the or what happened on february th i don't see that in your complaint your complaint seems to focus upon the latter that i don't know what the letter meant apparently was erroneous even as the county would argue that suggested that that there was going to be a terminations of rights but it doesn't you don't seem to focus what i want to know is why a th amendment claim comes here because i don't see a termination and i don't see an allegation of a terminations accreditation is not required for a th amendment's of the process i can give you one example that happened in this court about a year ago examination without parental consent court order or as you well but given that seems far different right i mean that was a gynecological exam of a young female without parental consent and that seems far different than a five minute interview here no matter what you're talking about or it really doesn't matter the length of the interview and problem matters what they're doing it i mean you can either have a terminations of parental rights or you can have assuming man was correctly decided which we  like to so you just just going back to that you think this terminations language so what do we do with cap well what kept st of all i think that terminations language if you look at if you look at the  arises when a state official removes a child from the home typically it's not just that's not the only time through the lies you can have the substance but cap seems to say it is and that's my problem is it and you i guess you would train cabin cap and say it's only st amendment retaliation that's that's all they were talking about at that point if you again what they're talking about with regard to the the th and then the claim in that instance is that mr kat didn't lose custody of his child as a result of what the social worker did was she temporarily took away his custody right all she did but this is very that seems far more political of this case than the man case it's it actually is is not in it reasonable under the circumstances as i think any th amendment violation as to a child automatically leads to a th amendment subset of due process i for a pair i think if it interferes with the right of the parent to make decisions for their child yes i mean the parent makes all kinds of decisions for their children parents make decisions about what kind of television people watch your kids watch you know where they're going to school who their friends are who they talk to and if that's the case doesn't it follow that appear it has  determination whether or not a child talks to a social worker well that parents also do things to their children and they don't take good care of their children and all of us that have been around know that sometimes children are left in situations if and children can't necessarily always advocate for it they can't get a job and get out of the house so there is a need for social workers in terms of parents that are not doing what they're supposed to do it's a question of where you cross the line i agree with you completely your honor and  at the time of the nd interview l g had been suspected of being abused or neglected i would agree she wasn't that's the point when we get back to the j m a well because i don't understand why a reasonable jury couldn't conclude that the girl was not seize she was told she was free to go and would understand that she was free to go but i'm not saying that that's the way to the evidence i'm just talking about g m o right now that judgment is a matter of law under the no reasonable jury standard i don't understand how you even have a shot at holding that up when you're on i think that you know what the judge when he does watch this trial that he watched the evidence coming out and he listened to the evidence you know the list of his that's the same as your struggling with the fact you both got a jury trial it was six days long and i'm not seeing there's no allegations of instructional error everyone put on the evidence that they had and six people you know even though we like to think that as judges we're smarter we can do better credibility than everyone else there's a reason we have jury trials and sometimes jurors are actually better at this than wires and ph d s and all of that they heard everything y'all y'all threw everything in the kitchen sink and they were all for the county so that's i could say it you know you would have been better off having a slave having a court trial in front of this judge because then if if that was on appeal then that would be unassailable because the judge would have made those factual findings that were put before the jury but here the jury heard everything there was an instructional error what's a new trial going to accomplish your honor i think that one of the things that happened here is the judge the need to struggle with whether put this in front of the jury in the st place whether or not this was a question of law as opposed to a question about and he you can read through the transcript and you can see that throughout the transcript he actually said and the way we look at this you know we know that it's easier can be a very temporary thing it could be ok you know my study of the record in this case tell me if i'm off base what i suspect happened here is jury nullification the jury thought that it was so ridiculous to characterize it's going a little girl about possible sex abuse in her family to characterize that as a constitutional violation entitling somebody to damages  without some much more egregious case than you had they were just not going to do it and they didn't care what the law said about it being a seizure didn't seem like a seizure to them that's my guess as to what happened  that may mean a very well have been what happened i'm wondering if there's any point in interfering with that sort of jury nullification well of course there is your honor because jury nullification is not appropriate i mean under the circumstances jury has to follow the law and in this particular case jury if they get the right instructions are presumed to have followed the instructions and follow the law and so that's you know i'm just wondering and terms of there's many times i would not do this well not i'm not saying many times but there are times that there are instances in say this a pair of court for example where are the judges asked to sit as the th juror and that would be like in a capital case after a jury comes back with the death verdict you set as the th juror and if you don't think that there was evidence that supported the death verdict you can set that aside and you know but here it's like it's just one of those they heard everything and well if you get a new trial no one's ever going to do things exactly the same because you lost and if you do it exactly the same that would be kind of that would be the definition of insanity but that being said you can't neither side can really fabricate evidence the evidence is what it is and i don't see what so then if then if we get six more people that say the same thing are damn we going to say those six people they're crazy too well you know one of the things that happened in this trial is there were some serious questions about his credibility the court holding their to you know say goodbye to the girls and you know that you mean when she went to the school and went to the school i'm sorry and so because that's what we're talking about here the school or apologize and and then she also said that one point the little girl she didn't asked the little girl if mom if dad had taken picture over the little girl just blurted it out i'm confused by that whole thing because she had already interviewed al two weeks prior and l had said this never happened so i'm home is long as they have an open investigation were guard lists of whether that child is suspected of being abused or not well but but the thing is that people that have worked in this field know as well that children don't always that i mean they feel a lot of pressure about saying things against their parents they say talking about the type of things you have to talk about there can be cases where children get if they don't admit something right away as far as that goes and the social workers do have a different function there can be cases where you don't charge someone with a crime but there's clearly problems that are happening in the home that a child needs to be protected from and it just they're they're not always one and the same your honor at no point was this child ever suspected of being abused or neglected in this investigation well i don't think that's a fair statement we have we have we have a father who admitted to taking naked photos of his twelve year old daughter so i don't know how you could suspect that or how you can say that there was never a suspicion at any point that what was some of the other daughters might well and that isn't that isn't like parenting one to one that is not considered that you could float that to a lot of different people and they would probably say it's a good idea for dad to take photos of and then i think that there was things about documenting puberty as they go through i think that there are there could be was is it against a clear way to the evidence for the jury to conclude that the child was not seized and i can see where there was plenty of evidence that she was n and there was also evidence from which you could conclude that she was seized you could go either way the judge thought the clear way to the evidence was that she was seized i'm pretty sympathetic to the notion that she was she's because  i remember nine i know nine year olds grandchildren they're going to do what they're told and the grow it already seems a tremendous power and authority the social worker heading home as you say but what concerns me is my getting too deep into the facts there because i'm just supposed to look at whether the district judge abused his discretion in deciding that what the that the jury's verdict was against the clear way to the evidence and that is so limiting i'm wondering whether there's anything to do but grant for new trial that it would be helpful if you had some cases that were somewhat similar  with regard to a motion for a new trial where they go your way or don't well your honor experience hendrix versus hendrix licensing to julie hendrix case involved my anytime i can the tenor at trial testimony a trial just the least of testimony by a trial judge is a basis for a new trial and i think that it's absolutely logical for this court to look at the record and say we decided this judge look at the tenor of the testimony at trial and to let you just decide you have to treat that social worker is lying to cover herself and that's it and there the question about whether this is a five minute interview is also questionable is  question because i was looking for that i haven't seen any dispute over whether it's five minutes of the problem your honor is that we do have a very very tenuous nine year old what did she ever say that it was more than five minutes well she never testified she went into the administration office did anybody else say that she was in there for that morning i mean to have that testimony at trial oh i mean i think it's unfair to say that it was disputed that i think well i think that the court that's i'm not sure if it's just a few that i'm saying that i think the trial judge has some questions about problem i have with what you're saying here is any litigant could come in here and make the same arguments so is there element where's the outer limit where we can say the district court abused its discretion because clearly there must be some time when a district court abuses as i'm sure there are if the same token sometimes i think judge kind paul sort of touched on this i don't think i know kids better than six jurors no kids a lot of times they're petter than you know kids  better then it's it's i'm enough of an actual expert in raising children your honor i don't have any so that makes me a complete expert but i will tell you that you can't  but i will tell you that i think that judge clark as he does the need to look at this case and said this is wrong and you know the the evidence shows this little girl was seized it's show that was seized as a result of the county's policy of allowing social  the th amendment i don't think there is your that there is no deprivation in family custody it does not change anything no family custody has been changed since and so therefore there is no causation under the th amendment so that happy instruction or that counsel did say that's hip ecclesia in the instructions it has to be remove all we have been saying all along in all of our briefing since the beginning that it has to be an actual deprivation that a child sitting in an interview for five minutes is not that separation ok can you address them now issue for me sheriff the one allegation is that the jury never reached that issue because it found no constitutional violation so if you look back at the jury forms if they find there was no underlying constitutional violations for the child or for the mother they did not need to go on to the nd and rd or rd and th question about mono liability so they found that there was no violation so they were not then instructed to answer those questions and they did not  why there should be a new trial after sixty years of evidence and the evidence was what it was l t not testify but there is an abundance of evidence about l there is evidence about her age steve but they did not present evidence as to how a by an expert for say would show that a child would not feel free to leave they have that ability to do so is it is it clear under the law that it is in fact a th amendment violation if a child is factual determination to be made about whether a look at the girl was in fact compelled to submit to an interview in the principal's office but i'm asking a legal question is there a question under the law that if that occurred that it would be a th amendment fairly or there would be a seizure or the review seizure so if a child did not feel free to leave then yes that would be a seizure that's element number one the nd element is reason on this was that cesar jumped seizure justified the seizure issue is purely a factual determination and a little girl is capable of being the victim of a seizure in a five minute interview with the principal's office i guess so but that that did not happen here look i'm not talking about facts with you now i want to find out about law whether the laws make the letter could be under if that's what we gave the right law and they felt that she didn't feel she was for a delay for she could be capable of the seizure right exactly and  facts and you give the deference to the jury who weighed credibility and the determinations and followed presumably the jury instructions that lead out the factors to consider as to whether or not l felt free to leave during that interview this same factors that were given in the st issue in the trial court which is not on appeal so there was a scene jury instruction about that as well so that would be what this court would consider ok thank you for your comments honour's on with regard to our cross appeal the issue of that letter that was sent to the court it was absolutely false it was completely everybody's admitted that i mean that's not really helpful because everybody has said that it was wrong so the only question was what were the damages no the question is is that a th amendment violation in or cap it doesn't seem to be well no your honor under cap the question was did what they what happened in cap shock the conscience and the question  the district court here's the problem i have it we've got a county that's doing the best they can her testimony was we sent out this letter if i couldn't have changed if i want to do she may have been lying i don't know that turns out into a th amendment violation because they sent a wrong letter that a district court judge didn't even rely on and immediately gave the rights back to the parents your honor that letter sits in the file today the county refuses to take it out of the file that's the problem the problem that we have is that it is never been removed and that it's like a time bomb in the family law file waiting for another dispute between ms d's and her and that's a different argument than what you've been raising well that's in until discovery in this case when we got the documents from the county because that letter goes into a secret file in the family court because it comes from the juvenile court system so the problem that with that problem for us in this case is that it's still there and it is empty and it is a time bomb and i would like to also point out that both the county and mr capp have asked the court for extended time to file sorry but you know i think that one of the reasons we're here today is because of help rather and one of the reasons the counties go to school to do these interviews rather than doing that at home is because calibrate is that they could not invade  conclude the argument thank you both for your helpful argument in this case and this matter will stand submitted