i think your honor good morning your honors john burton for the plaintiffs i would i don't have a lot to say at this point in so i like to reserve as much of my time as possible perhaps five minutes or more depending on the panel's questions for us these facts can be a little convoluted and kind of strange but at bottom we contend that the all the claims all the one thousand nine hundred three claims in the supplemental state claims turn on one fundamental argument that there was no this particular warrant was so lacking in disha a probable cause as to alan scherr that official belief in its validity was unreasonable and that means that really there not an iota of probable cause for alan say in this warrant so all of the arguments and all of the rulings of the district court really turn on a disagreement with our analysis that there's absolutely no ind cause and that no reasonably competent police officer would have submitted this warrant for review and signature so so can i just tell you sorry i'm trying to find the  police report because it's really the information that provides probable cause it's just it's in those police reports and you gave us three thirty one pages of police reports almost all of which deal with the other suspect when he turner who did commit a crime ok so let's let's just let me lay out a couple of propositions and then tell me where i go wrong you'll concede that there was probable cause certainly to believe that it turner's the other gentleman absolutely yeah he was convicted he's in state prisons and the only way your client could pot potentially in any way be exposed to some criminal liability here is if he in some way aided and abetted the other gentleman right well that actually was not the charge in the war some of the fraudulent documentation to your client's office and then it's fax from your client's office to the bank i guess right and i think the escrow i'm sorry ok yeah whatever but it's sort of coming through and i think everyone agrees if that's all there was that's not enough to support public i agree that but so then the whole thing comes down to the money right and that's where i just i look at that problem i think it's the kind of the last page actually in that little packet and it's where your client is interviewed by the detective and comes up frankly with a suspicious sounding story right first it's i don't remember anything about you know a pretty sizable amount of money i don't know how wealthy or klein is but you know other than someone who's a billionaire thirty thousand dollars you know being  close to that and being withdrawn from your is a home equity line of credit is that i mean that's a significant amount of money for most people so let's just assume that your client is is wealthy but of you know modest wealth not not a billionaire he says i never knew anything about that money i certainly don't recall going into the bank to get that money it was a money order right that he purchased a cashier's cashier's check i have no recollection of that and then perhaps he was invited to speculate but he comes up with a pretty crazy story that doesn't make a lot of sense then the detective goes and interviews the bank person who says oh no i will tell you for sure that that gentleman came in and he did purchase that check in this other person's name so at that point it just seems to me your client i don't know why he would be trying to cover up his involvement in the sense of providing the money but there's probable cause to think that there's something weird going on here and so that's why like why would an and if i could get through sort of a lengthy explanation the short answer is that the loan in the cashier's check had absolutely nothing to do with the crime that was a turn out to be the case but at the moment english that warrant is issued the facts don't lead you in that direction so would you have it to tallaght is circumstances and so i think an innocent explanation doesn't wash in this case you know that your honor that wasn't an innocent explanation it was it was the the it was that the check had nothing to do with the fraud with the crime the crime here i think it's very important but it is point is you know that separation would not knowing at the time well it was you know what you're talking about came out later that's incorrect it was known at the time what the crime that ultimately deputy diri was investigating and he changed crimes sort of minute midway through but i can address that in a moment the crime was  turner submitted false income and asset information with his loan application the loan was approved at the time the refinancing was closed mr turner was asked to provide thirty thousand dollars in a bridge payment that was provided by mr sze from a c lock but the fraud had already taken place which was the loan had already been approved based on the fraudulent documents that were the crime in this case mr sze had nothing to do with that countrywide stated very clearly through mr gleason that the source of the funds had nothing to do with this loan that countrywide was not interested in the source of the funds that's the record and that's what deputy darry knew at the time ok but if i could explain why this sort of strange circumstance yes somebody took thirty thousand dollars out of an accountant and why did you know number one well mr sze is certainly not a billionaire he was making regular transactions twenty thirty forty thousand dollars at that period of time he was an active real estate broker in southern california he was flipping properties he was working with investors it was a very very active time the bank statements that deputy dairy obtain showed similar transactions on every couple weeks this particular loan was paid back and it was paid back forty five days later with interest when he was asked about this document it was six years later and the context in which he was asked about this is critical for understanding how this mistake by mr sze who should have said yeah that was from my he locked account mr turner asked for a loan it was secured by other real estate transaction so i gave it to him and it was paid had he said that it would've you know obviously eliminated a lot of misunderstandings and in fact had deputy dearie taken the time and come back to mr sze and said look i went to the bank and you did purchase purchase with someone else can you explain it he could have pulled his file from the crestview property that he and mr turner were investing in together and were flipping at the time and said oh i see what happened now that was a loan that was made in connection with transactions back and forth that mr turner and i were making on a separate deal at the same time because that's actually what happened what happened here and this is what i looted to earlier and my argument is how this interview with stephanie derry took place and what the crime was it was under investigation in two thousand and twelve or thereabouts eddie turner contacted mr sze and said somebody put a sex refinance transaction on my property in two thousand and seven i didn't do it they must have stolen my identity this mortgage and second deed of trust are not mine and mr sze told his friend and colleague well what you need to do is pull the escrow file and see what happens when mr turner did that he said hey whoever did this put in this cashier's check and the funds came from your he'll walk account you're part of this identity theft and mr sze said whoa no i didn't do anything like that you should report it to the sheriff's eddie turner started this investigation by reporting this what he contended was an identity theft to the sheriff's deputy darry investigated mr he was investigating a potential fraud on mr turner that it occurred again six years before where he had participated in the fraud against mr turner by somehow cycling them the money from his he locked account into this refinancing trying to end your client knew that mr turner was not correct in saying that somebody had done this without his authorization right when so w detective whatever his name is isn't his during the interview your client isn't sitting there thinking oh my god maybe mr turner really was the victim of identity for he knew that that was a made up story right no that's false your honor at that time sze didn't know what it happened because frankly this two thousand and seven refinancing transaction makes no economic sense for anybody i mean mr turner paid a bunch of points in fees to replace one loan with another that had boat virtually identical terms i mean that's what happened mr sze thought at the time in two thousand and seven that because mr turner was unable to get cash out that he had abandoned the refinance so he thought it never closed at the time they went ahead and wrapped up their crestview property and mr sze received payment fifty one thousand find that the war was and it was appropriate inadequate absolutely not absolutely not because the loan didn't have anything to do with the fraud the fraud was in the application papers that had been submitted months and weeks before the loan had already been approved and countrywide said the source of the funds which is the fact there is even this loan in the first place is really weird because normally when somebody refinance is a property they get money back that's a purpose of doing it why mr turner was even putting money in is a question we just can't answer mr turner denies he did that to this day  but he mr turner asked for a loan he didn't specify the purpose other than for investment in instructed that it be made out in a cashier's check in a certain way mr turner mr said gave it to turner and then it was paid back timely forty five days later and it's all documented that transaction that happened after the kong the crime was the loan application papers that of action or does anything survive that ruling i think the point it was just raised would survive the fact that he without any evidence that mr sze had any feloniously obtained funds whatsoever goes to that that affidavit that i mean there is no basis for deputy dearie under any view of these facts to think that mr sze had any money six years later he didn't even get any money out of the transaction in the first place so just as a matter of policy file these affidavits which resulted in this fifty something what is the evidence that there was a policy or practice or a senior  may please the court good morning my name is antonio kizzy i represent the defendant please county of los angeles and detective christopher derry following up on some of your honor's previous questions to my colleague  guarding the bail claim and what that does not depend on probable cause i believe it may depend on probable cause because on one hand it was under the california statute that we cited in our answering papers that authorize such a hearing regarding the acquisition of bail funds secondly based on my recollection of the pleading that it's very different from the probable cause determination maybe but as far as the eighth i respectfully disagree your honor we haven't in this me yet what else could you argue that makes it depend on the probable cause determination yes well on one hand there is a if there was probable cause which we contend there is to arrest sze for these financial crimes based under both the california statute and the authority cited by deputy district attorney mueller they would have been entitled to have this bail hearing because it dealt with potential because you know he's charged with theft that's all that's in the affidavit in the affidavit yes and well what are the showing was there on which the nobel determination was made yes another one would be where it is undisputed satisfy the requirements of a now why isn't the detective's testimony he basically says flat out that when questioned kind of a stretch to see him as effectively done there's really no basis in this particular case for your this no bail statute so why did you do it here and his responses about it was just standard practice we do this in for every one of these kinds of cases and that seems to suggest that there was some kind of a county wide policy that would i guess require the decision makers to turn a blind eye to the facts of any individual case and just sort of you know we're just going to slap this on every case involving whatever this kind of crime was and why isn't  violation of mr she's due process rights well on one hand setting aside that there was no underlying constitutional violation it's our position because he was arrested with probable cause on the second hand i know them violations not their arrest if the hol your testimony from a senior official list of what the practice is and that was going to be mars sponsored the testimony of a lower deputy without any further elaboration on it who does not have the authority to make final policy procedures nor was there any follow up as to the basis of his own individual subjective belief as to whether it was a countywide policy there was no information follow up on that so it is our position is even made be liable individually would not  they have no authority to testify on behalf of the county as a final policymaker or person and what would be your authority for that on one hand the monella itself another one would be some of the cases involving  and it's often claimed that you may have taken an action pursuant to some sort of county policy discoveries conducted a deputy may say well yeah i took that action because it's my understanding of training but still when there is no further elaboration on that by a higher authority by a person doesn't need it on behalf of the county as qualified to testify as to the policy or testify as to ratification of certain actions that there is some more needed rather than just the testimony of the lowest employee well i guess i mean we're just trying to figure out whether mr sze raised a triable issue of fact right and i guess i'm not sure why would mean with you that a lower level deputy can't bind the county in the sense of announcing a policy right that that then tags the county with liability but all we're trying to figure out is whether the detective's testimony raises a trial balloon to a fact as to whether this policy in fact was in place and i guess i don't see why why is he disqualified from at least getting past summary judgment you know then obviously you can call in the higher ups who say that just doesn't know what he's talking about there's no such policy or whatever you would say but we're just trying to figure out whether he's mustered enough evidence to get past summary judgment why isn't that testimony and we believe the detectives testimony is not enough because as your honor indicated he is on the lowest rung he's not designated by the county to testify regarding binding the county to this is in fact a county wide policy there was no follow up in the record and deputy detective barry's deposition as to what what do you base this on have you done this in your other cases have how many other cases have you done this in there's nothing else so in terms of when we moved for summary judgment indicating that there's a lack of evidence to the claim on those grounds when  testimony that was the central argument that we made that he can't bind the county based on his own subjective belief without further elaboration on that and going to this question earlier this mr say statements went beyond mere lack of recollection to actual denial on the excerpt for e p o our zero zero four eight one in addition to mr sze on one hand stating i don't recall getting that cashier's check he then says quote i subpoenaed my documents and they don't have anything showing that i withdrew that check which then with directly refuted by this gas variance testimony that yes here is the check here is the signature we've identified and he asked me to make him the re he submitted a check for the closing which was not due which would show which apparently the bank contrary to my experience was not concerned about the source of the funds in his own declaration in the application said that the funds are not bow road and then on the other hand you have mr say in a sense taking it from his he lock potentially lying about it to detect the very and then  on these various actions that could be deemed innocent as your honor indicated probable cause in objective analysis reviewing the totality of the circumstances and even under the very deferential standard that we believe applies here that my colleague's briefs are silent on when a magistrate issues and arrest warrant based on an affidavit that's also reviewed by a deputy district attorney miller mueller that the standard is not the nov green street case the court literally said that all they had was this person has a history of drug abuse and they were seen at this residence quote that is all here in the warrant affidavit mr say the appellant argues there's not an iota of evidence lack of mr shays name appears twenty one times within the thirty one pages and our brief list at least thirteen to fourteen different instances in the record which many of these innocent explanations are not where in the magistrate we believe was not clearly erroneous in reasonably inferring that mr se may have either committed grand theft or assisted mr turner his client friend repeated real estate business partner in committing grand theft or having a forged document he filed what's the chain of of inferences that leads to that conclusion even if we accept that he provided the funds needed to close the loan why does that render i mean i'm just thinking who are the friends i've helped out play you know what if they had been involved in some you know underlying problem that i didn't know about but i you know foolishly let them some money that they then use for this other purpose why why does i look at the you know the part of the report that says yeah we want to talk to the bank person and she verifies that no he came into the bank and purchased that ok so what let's say that about occurred yes why why does that render him criminally liable for what this other person well that rendered him i it may not render him criminally liable beyond a reasonable doubt or even beyond a preponderance of the evidence or even a prima fashion showing of criminality but that is not required under the probable cause standard in terms of the sequence of events you have to take to bury conducting this investigation it's undisputed mr turner committed this fraud then you have missed to say on one hand being evasive and giving contradictory implausible explanations which under d c and was be can be ascertained as consciousness of guilt you have been giving these sort of very farfetched stories explaining this check and then on one hand denying it then you have mr say the facts being facts both to and from his office it's an impossible explanation that oh mr turner went out of his way to fax it to him in fact from and further the counterfeit bank statements indicate that mr turner had approximately two hundred fifty thousand dollars if mr sze had no reason to believe that they were false then why on one hand would mr turner need to borrow an additional thirty thousand dollars to close these loans then you have the mr turner indicating hey i didn't have any involvement with these loans which then i know my colleague has made an issue about well mr sze said that mr turner had access to his fax machines or his office but i mr turner denies having any involvement with the loans then he denies having any involvement faxing the loan from mr shays office which then goes to the whether an omission may have been material or not but we believe that a shown in probably the thirteen to fourteen different facts in the record in the warrant affidavit that we indicate that there are several quite suspicious chains of events here from which for qualified immunity purposes we would refer the court  f to the thirteen sixty six thirteen seventy which says quote in that case the officer properly sought to have his believe that there was probable cause reviewed by the two lare county district attorney's office or and then by the judge this is sufficient to establish objective lee reasonable behavior and quote and this was a qualified immunity analysis here for on one hand even if the court is not persuaded and out of time but just the rest he sought to have his probable cause belief confirmed by the da it was and i did not come across any case where and under these circumstances it could be shown that it would be clear to every reasonable officer that they would not have probable cause under the facts of this case your honour's thank you for my time thank you very much for your event let's give two minutes to counsel for mr sharon thank you note i'd like to address two point very quickly first we actually do lie i just was given this by the district attorney's office because in every case in the county we do this so the district court analyzed that individual claim against deputy darry in  in several pages and the district court denied or granted summary judgment on the mono claim not on the ground that there was no tribal issue which we contend the testimony of deputy d in a sense because there is probable cause there's no violation because you can say that somebody who supposedly committed a fraudulent act or abetted one six years before could have access to funds i mean she she she she she wrote about that  snyder and so so we focus on the mono claim just to sort of move on but we definitely believe there was an individual claim there and raised it so that's number one and number two i'd like to turn just very quickly to again just lonely and just stress and i think the judge walked through your question about well so what and then the response which was well it raises suspicion is the problem with the warrant because we're not talking about whether or not there's a suspicion a suspicion is one thing probable cause to believe that there's a fair probability that alan a committed this crime of defrauding countrywide out of over a million dollars all because to believe that and to go through this kind of deprivation of liberty and the expense and go to  preliminary hearing or frankly what happened at the point in our hearing is you know what you have that mr shape knew that these representations were being made and that they were fraudulent and he said nothing that's what the now half of th he presents that one as i understand it did improve the warrant and then it cation and then he's presented it to a judge and the judge based on those facts or so approves the incorrect ultimately but no it wouldn't for this reason because the standard for qualified immunity is the same it's if no reasonable cleese officer would have submitted this warrant application and the reason then so it's the same standard because the way leone and qualified immunity all this i mean we have a tupper here we have to show there's no basis for probable cause and no one could reasonably believe that now how did it get by  district attorney and judge the reason is log rolling what was done here was thirty one pages of records that detail a crime that was committed by eddie turner were submitted and that clearly there was probable cause to believe a crime had been committed and the eddie turner had committed and then alan scherr was kind of put in as a with this link and he work in concert with them but when you actually look at what the factual basis was for believing there was any concerted action any knowledge by alan shea that these documents had been submitted or that they were there is absolutely zero and this is where the green street case came in it was really mischaracterized i just haven't you know that case pretty well because it was my case where summary judgment have been granted and then was reversed by this court on the ground that when a warrant application is submitted for more than one person or more than one location probable cause has to exist as to each and i think in the context of a busy prosecutor or a busy district attorney getting a stack of documents from a detective who is being trustworthy that they've gone through that analysis and if there's just nothing and let me just reiterate there's three zeros here the first zero is that alan shea opened the escrow as a favor for eddie turner and jeff gleason the loan broker because eddie and said i want to see if i can refinance my house to get the money to pay you off on our christmas and so he did open the escrow nothing wrong with that number two the documents that ultimately went into the escrow went through the fax machine at allan real estate office where there's all sorts of people including eddie turner coming and going using the fax machine everybody imputes nothing the third is this loan and if i could just i know i'm way over time just to sort of the point i never quite got to before is that darry asked alan scherr about did you make that loan in alan shays mind it was in the context of eddie turner's complaint that somebody had fraudulently put that two seven thousand and seven loan on his property stolen his identity and did it and alan say knew he had not done that and therefore he was puzzled by the check and again that was six years before a very short term loan and he actually went to the bank and tried to say who took this money out of my he walk account and was told by the bank we can't tell you because the account is closed and he told deputy dearly that w that's the problem i guess i have with your position on that front it is very suspicious i mean you're right that you know your client was very active in real estate in the like i was doing all sorts of deals but the notion that even six years later you would remember going into a bank to purchase a cashier's check that you personally signed for for you know fairly sizeable amount of money that that's just that that's where i guess i have a problem because he definitely denied ever having done that and then no he did not he never denied doing it in fact it's all if you listen to the recording which is in the record if you i'll i have all i look at will recall i looked at was the transcript that you gave i don't know if it's  pull it out no i read it i know i know what you're talking about but that i don't recall and if i did it was to help eddie but i don't ok but i'm saying that you wouldn't recall going into a bank you just know it's not like  you know i wrote a check and i write ten thousand checks the year you wanted to a bank to persecute your check and somebody else's name for thirty thousand dollars i don't know i just think i can see why detective when he you know receive the information from your client during the interview and the and the speculation about oh well someone must of you know taken the money out without and i know that you seem very suspicious because in his mind the check was being used as part of a fraudulent scheme to place a loan on any charges deputy and we get that he had a subjective suspicion at that point in the law is very clear that suspicion is not the same as probable cause suspicion would justify him to continue to investigate get to the bottom of this rather strange sequence which actually had a pretty simple explanation which is alan did not cite mr sze did not take the cashier's check to give to mr turner to i don't think you can just go from you know suspicion because there was a a strange sequence of events weeks or months after the crime was committed to probable cause to arrest somebody and rossley cute them on for felonies hold them on two hundred thousand dollars bail and you know put out a press release of the nature of this one i mean this is a man who had never been in handcuffs before you know he had a series of professional licenses and never had any action taken against them he was a member of a commissions here in pasadena he was a public figure he had run for public office you think that the detectives should have taken that into account well absolutely because you're not dealing with somebody who has a history of identity theft and fraud and criminal behavior you're dealing with a professional who's got a clear record you know into his fift high school college graduate law school graduate licensed by the real estate board for years and that is something that is strange and that maybe raises a suspicion that is not the same as having probable cause to arrest and i think the cases are clear and this was my disagreement with the district court and i think we've been very upfront about this you know