please the court good morning my name is joseph adams and i represent the plaintiffs james mills would like to reserve three minutes for rebuttal please right the district court erred in granting defendants motion to dismiss a motion for judgment on the pleadings and both orders should be reversed the order granting the motion to dismiss erroneous lee applies the statute of limitations this case involves two separate distinct tolling periods the first period ran from the date of mr mills arrest to the date of his sentencing the second period ran from the date of his conviction to the date that conviction was reversed on appeal can i ask a question this is interesting to me that both parties appear to assume that the date of accrual was the date of the arrest but that's a legal question that we we have to decide for ourselves is that conclusion wallace hold as a legal matter that the date of a cruel was the date of the arrest was a possibility that it could have been later correct know that that is governed by wallace and wallace dealt with a situation that had court clarified that that's not the case and a cruel cruel with respect to the fourth amendment claims not with respect to the malicious prosecution claim but the fourth amendment claims of crude on the on three there was tolling from the date of the arrest to the date of sentencing and that tolling was readily acknowledged both by the district court so that they drop a footnote in the hack and i think they later explained it in wallace that that's a question you can't determine and tell after the fact you could have five facts that support the conviction and he's only you know impugning one of them and it may not actually i supports yes wallace wallace supports the proposition that because of the claim of crude on the date of the arrest the claim could be filed at that point and during that period of time between the date of the arrest and the date of conviction when the head bar is not in effect during that period of time the district court made shoes just for logistical and practical reasons to stay the case pending the outcome of the criminal prosecution with the idea that there's no point in proceeding with a civil matter if ultimately it may be barred by haq upon a conviction anyway so the civil matter could be stayed once for conviction you're saying once a conviction happened in the superior court then heck would require dismissal under heck dismissal would be mandated i don't think that that's correct wallace seems to suggest just the opposite wallace definitely suggests the opposite during that first period from the date of a cruel to the date of conviction but it doesn't it doesn't address it doesn't indicate i don't know language the i mean you're right i guess you're right as a technical matter but i don't understand why the i mean i mean just because they didn't distinguish in in wallace between during the superior court a during the appeal i don't understand why there be a difference i mean ultimately the question is we have a problem here is that there's no question there's a legal limbo here right i mean we don't know whether the he has no nine hundred eighty three claim and tell his conviction is expunged in some way and you don't know whether that's going to happen if he's convicted in superior court we don't know whether his claim whether he's going to have a claim and tell the court of appeals acts and the question is does the is this is the statute told during that period and wallace seems to say no and then the question is just three fifty six come in but under the plain terms of three fifty six i don't see how your client is prohibited well first of all i don't i don't see a statutory prohibition here if anything it's a judicially created prohibition and the california supreme court but even that has said you have to show that the that it's legally not possible as i don't have the phrase exactly right but you have to show that it's legally not possible for him to bring the claim and i don't think that's right it was it was legally not possible in the sense that had he filed it the defendants would have been entitled to dismissal under heck the same as in other cases where the california courts have applied three fifty a precondition for a one nine hundred eighty three action no certainly not and that's and that's not what i'm arguing but what i'm arguing is that in those circumstances in the exhaustion context the plaintiffs certainly could prematurely file their claim they could certainly prematurely file their lawsuit but the defendant would be entitled to dismissal based on failure to exhaust that's precisely the situation that would understand the analogy for one thing this is there's no exhaustion necessary this is a rosy lundy situation it's not a b s and for another i don't really see why dismissal would be necessary usually with what a court will do when the defendant in a criminal case files a civil action that affects a criminal case is so stay it because the prosecutor says it would be unfair to civil discovery and that's actually the usual thing because  the thing can't have its discovery the plaintiff would be entitled to this cover that's about it i don't understand why you're talking about exhaustion well i bring it up only because i wanted to illustrate the point that  certainly could have asserted his nine hundred three claim post conviction while the head bar was in effect he could have asserted that claim and it's possible that the district court would have responded to that this by saying post conviction correct just post conviction that the national dish was certainly expire this somewhat similar to what happened in in wallace and the court says we're not going to recognize any federal equitable tolling so we're going to a state law for polling if state law does eighty three lawsuit then he loses but if you say well we humphrey barr would have kicked in and it would have cost a lawsuit to be dismissed then he should be entitled to tolling for that that's your argument that yes that is the argument yes but i think and i think that's where i struggle with it because he has to be legally prevented from filing a claim and you're asking us to make a determination that he was legally prevented because the his action would impugn his conviction before we even know whether his conviction what the basis was for upholding the conviction it's almost you're asking us to make a determination of a question is an answerable until after the appeal comes out under some circumstances that may be true in this case it's actually precisely the opposite the california court of appeal reversed mr mills criminal conviction based precisely on the fourth amendment violations that are the source of the i understand that but and so that happened we don't we wouldn't have known why they my reverse it or whether there's other evidence i mean admittedly there's other evidence here that could have been news now the court of appeals didn't look at that they they took a pretty extreme remedy here and said you can't even retry him but there's more i mean the real question was whether the drugs could be admitted or not by the way why weren't the drugs presented to try to pry the wrong person to ask but why weren't the drugs present at a trial this is that's bad i mean it was on the wrong person to ask but but that was the only question i mean we don't know whether there was other evidence here that that could have been affirmed on so you're asking us to go into a record and make a determination and by the way determine that three fifty six applies to some cases based on the facts and some cases not because the facts and that that it strikes me is an  highly unusual way to apply three fifty six well and in a different case i agree with you you you may be asked to make that determination prospectively in this case just procedurally we don't have we  have the bench but of hindsight in this case i mean about one of the oh i'm sorry we're not done it's remake no please the benefit of hindsight i wonder if now that we do have the benefit of hindsight it means that the setting aside of the conviction really won't work for you to make the claim viable again because the jury did not accept the contention that the drugs were planted and that this fellow didn't have drugs and the court of appeals did not undermine that determination instead what they did was determine that the evidence was wrongfully obtained and once it was suppressed that there was nothing left to prosecute this fellow with so the directed the court  that close the issue on the collateral estoppel on the on the issue of collateral estoppel we believe that it's not appropriate in this case because mr millet did not have the opportunity to fully  was no let me tell you why i don't see it so you can help me just on this because of means some missing a part of your argument the reason i don't see that this it seems to me that mills had his chance to attack the evidence it did come in the i'm lawfully seized the evidence did come in and he had his chance to persuade the jury that it was planted that is so he did have a full opportunity the reason the reason that the determination regarding lawfulness of the search and seizure is so critical in this case is because this was alert literally a case of credibility in this case came down to the police officers testimony versus mr mills testimony so the trier of fact knowing that the police officer obtained this evidence only through illegal means that doesn't make the evidence false evidence not necessarily but potentially impacts the police officers credibility and is an important factor that the trier of fact should have the benefit of considering when to sherman in that particular issue i don't know if the police does an improper search looks through the drawers when he's only allowed to look at things in plain view or something like that and finds the drugs it doesn't mean the drugs aren't there just means the search was bad and i'm sick and certainly the jury or  fact could reject could reject that you could reject mr mills argument but he should be able to present fact that the that the unlawfulness of the search the unlawfulness of the seizure impacts the police officers kind of the court below about all the misconduct by the police in this particular locality looks like this store will thousands of dollars from this fellow and i would think if our owner jury once i learned that the cops had stolen thousands of dollars of the defendants money and police credibility just be gone that did that come out at the price your honor to be but i believe that he had some issues regarding timeliness of his state tort claims so they got to keep the money because he was late suing to get the money back that they stole a small a small fraction of it apparently it was my first the cop reported on his police police report less money than he actually took and then they lied again about how much money they took and were and he never got on my back is that right that's right that's my understanding is that i mean that that's a proxy for the facts but it's certainly not right and that all that come out at the trial my understanding my understanding is that most of that came out at trial which is all the more reason why the unlawfulness the matters that probably still be the cop about the dope really and his car instead of the cops pocket and that's why mr mills needed every bit pelleas i missed him and will be addressing the collateral stoppel instantly if you disagree with anything your friend had just said about the police stealing money coming out of trial your honor i don't believe that  determination that was made by the jury i do believe that the allegation that he had been hunting was not a problem i believe the allegation that the money was not returned came out at trial but i don't think it was part of the case i don't think it was necessarily litigated in the same way nor is a jury heard about the police report showing a lower amount of money than they actually took from the risky i seem to recall testimony on that from mr mills of trouble yes but in terms of the statue limitations argument your honor i want to address one thing that was raised by palettes counsel just a moment ago appellants counsel argued that section three fifty six establishes some sort of bar because there's a case law prohibition to filing and that's not what section three fifty six says it all in their reply brief appellate cite to the case a supreme court case in california called hoover for the proposition that if there is a legal impediment to the claim that section three fifty six tolly may be implicated and that's not correct in hoover itself the page that says that a legal impediment may implicate section three fifty six tolling that page is five twenty six but the very next page five twenty seven the supreme court knows that pla ff hoover was barred by statute for proceeding with his judgment in foresman action in other words in hoover it was the corporation's co that operated to bar plaintiff hoover from filing that action and therefore in hoover section three fifty six applied and there is a post hoover case that the court can reference its called berkeley unified school district versus state of california thirty three cow app for three fifty one nine hundred ninety five case that illustrates this point very succinctly in that particular case the district plaintiffs had filed an untimely claim but they were asserting that section three fifty six operated as a toll on the statute of limitations and in their argument they said well we couldn't file earlier because there was an administrative final decision and so since we would be assumed to have failed to exhaust part mistreated remedies we should get section three fifty six tolling and the california court of appeal expressly rejected that idea and noted that having a sort of a disability some flaw some inability to maintain your claim doesn't mean that you were able to file your claim so section three fifty six it cannot be construed the court i mean there is some you know something good about requiring the conviction to be expunged because you figure you know only ten percent of the time or whatever the number is is are going to be overturned on appeal so why should we inundate the district the federal district courts with these cases before we know whether they even have a claim yes you are in fact your honor's point is raised in the wallace case itself or the supreme court the same judge that wrote the wallace opinion justice scalia also wrote the heck opinion and expressed that very concerned that if we were to adopt this argument that the hectare also operated as a tolling of the statue of limitations there would in effect be no such thing as statutes of limitations because is final with a determination on appeal and then you know whether you're subject to the half are not and you filed the case then or if you enter even if you interpret three fifty six the way however no less an authority than that doesn't make more sense to just go ahead and wait until the conviction is final before filing no your honor and five the supreme court tells us that it doesn't make more sense in wallace itself when presented with that distinction and the supreme court told us that  honor and i would actually agree with judge nelson on that particular issue that the the whether or not there is a conviction a pending or a conviction is already been rendered whether or not the time our applies turns on whether or not heck itself prevents you from filing the action not whether you can maintain the action and if we look back to section three fifty six again section three fifty six does not create a case law impediment to filing an action and the only exception for tolling under section three fifty six is whether there is an injunction enforced or whether there's some store of statutory prohibition of filing neither of which applied here i just want to be clear and i guess this is what you were arguing at the beginning because i agree with you i mean  the statute three fifty six only says injunction or a statute i had interpreted the california supreme court to extend that in did you do to ram it he's but maybe you're arguing now that that's not true that hoover actually was a statutory prohibition yes that's correct your honor in fact that page five twenty seven you can see that it based that particular tolling of section three fifty six on the corporations code a statutory but regardless we are bound by the california supreme court's in fifty six we can't go back and say they went too far we're not going to enforce that in federal court we're bound by whatever the california supreme court has said three fifty six means their right to the extent that the supreme court has mandated that state tolling provisions are to be followed beyond the the textual analysis of three fifty six because hoover did talk about cases where it's not possible to bring a lawsuit because the case was pending appeal  how do you grapple how would you have us grapple with that language in hoover i recognize that ultimately there was a reference to statutory bar but they did go back and look at the the history of other cases as well and other cases rely on the common bar when appeal is pending you don't file the lawsuit i think that in order to reconcile those two we need only look at the berkeley case or are the berkeley cases a california court of appeal case that interpreted hoover and disting sixty five and in that case much like appellants here they argued that under hoover there was tolling under section three fifty six because they were there was a legal impediment to their claim namely the failure to exhaust administrative remedies and the berkeley court made it very clear that a legal impediment to your claim like that is not an impediment to filing your claim and it distinguished the hoover facts from the berkeley facts in hoover the corporation's quote barred plaintiff hoover from even following his lawsuit until he had an enforceable final judgment and only then under the corporations code was plaintiff hoover allowed to file a lawsuit and that's written more broadly than what you say hoover says apparently with approval that the section has been applied in situations where the action is legally prohibited by other means than injunctions or statutory prohibitions that means it doesn't take a statute they seem to say that with approval i think that is correct in terms of the language that they use your honor but even in hoover they're applying it to a statutory bar and post hoover cases have made it clear i believe thing it's dicta yes your honor but even if that were binding i think where i still get hung up is that you have to be legally prohibited and i just don't see how this plaintiff here was legally prohibited from filing yesterday we agree in fact the court and wallace made it very clear that the hectare does not operate to prevent you from filing it may operate to prevent you from being able to maintain your claim post filing but it's not a bar to filing an absent part of filing section three fifty six does not apply well  a pretty compelling argument in wallace as well which is at the end of the day the statue of limitations is needed so that the cities are on notice that they have to preserve evidence it would be pretty counterintuitive to say i mean some of these cases could come up ten years later at that that it's expunged in some way and then at that point they're going to bring in one thousand nine hundred three action and nobody's thought about this for the last ten years and you know all the evidence is gone we don't know what happened to the extra thousand dollars that has mysteriously disappeared so i mean that that seems to be a policy reason that supports requiring a precautionary filing in this case yes your honor for those reasons we believe that all the claims but good morning your honor just before i start talking about collateral estoppel to address some of the questions that were already presented the reason generally drugs are entered into the l a superior court is because they don't want the jurors to have access to them so generally it's they had to do the testing that shows what the drugs actually are and they showed pictures they provide that the chain of custody so that they can determine whether there is actually a drug that was stamped this was standard in this case it wasn't unusual that the drugs weren't given to the jury correct your honor and it was testimony we have the drugs and they've been tested and here's the expert from the lab and correct was correct and it's and that is that is standard because they don't want drugs going me you can't rely and nor do you need to rely on collateral estoppel you seem to be advocating a position that you can sort of have many collateral estoppel for issues that only the jury or the fact finder found and i can't find defense is the police planted it on me by convicting the jury rejected that correct because that was what was specifically argued by his criminal defense attorney throughout the case it was in the closing it was the only defense that was presented was whether they believed the mr mills or whether they believe the officer had him so it was a question of and mr mills did testify in his own defense in the case and stated that these drugs were planted they were not mine i did not have them i did not possess them and so the jury specifically rejected that as the defense that was the only defense that was presented but once that's reversed i don't understand how collateral estoppel applied it was reversed based on a prolonged to detention i understand that but i've no i don't that suggests that when a conviction is reversed we're still going to say there's collateral estoppel for an issue that the jury may have decided and maybe you're ninety percent right that that's what the jury decided be in the briefing the collateral estoppel arguments there are there are several that say that what a jury has found even in spite of reversal or dismissal you elevate form over substance if you look specifically just to whether something is saying there is a dismissal there's been a reversal they still look at to what the jury found and if we look at hider not excess it dealt with a case where  the verdict was vacated there was a jury verdict it was vacated because a dismissal was negotiated for it and the court still found that they weren't going to ignore a jury verdict just based on the words that were put into the negotiated dismissal after w case where there were some findings as opposed to a general verdict yes well well actually your honor i have trouble knowing what the jury found that in general verdict to a case where you don't have the instructions well unfortunately in most criminal cases there are special verdicts worse of course but the in few look at the instructions usually and you say the instructions say you can't convict unless you found such and such and  confessed so you know they found such and such yes in urine and in this in this situation when you only have one defense that was presented the jury would have had no it doesn't matter what the lawyers say the lawyers offer reasons why the jury should or should not believe this or that but ultimately the jury is never instructed to follow what the lawyers say they are instructed to follow what the judge says in the jury instructions and in this instance there was no there was no defense that the drugs did not exist the drugs existed everyone has as acknowledged there were drugs it was just a question of whether mr mills possess it or whether mr huhne who planted it and the jury found that he possessed it it was the only conclusion that could have been arrived at based on the evidence that had my mistake in not including that in my motion your honor but what why when you decide this issue in my opinion why don't we just go in and say every time you find the jury finds a conviction that establishes probable cause and therefore you can't bring hundred eighty three action even if that convictions later at a minimum there was probable cause to go after him if you got a jury conviction which i think is the favorable terminations argument and which is separate and apart from the and that's why i'm why i'm asking the question because it seems to me like that's much safer ground to go on i have a hard time with a clatter and stop argument yes your honor which is why we've asked the court to also affirm on the alternative grounds of favorable terminations i do think lateral elements applied in this case as well as there's been plenty of tougher ground so you've got the attorney argument yes or no and i am over time but you well that's my colleagues have an additional questions conviction that's the problem i mean we you mention the heck bar as if it automatically exists but it doesn't exist that's the whole problem where it doesn't exist until we find out that it isn't going to impugn the conviction that's that's cracked in this case we know that it that it that it did in some you are correct that in some other case it may be possible to not know whether nine hundred three claim impugns the conviction in this case we know that it did and this court and this is the scissor this this is cited in the briefs but decisions from the circuit that concluded the fourth minute unlawful search claim was was barred finding that there was no probable cause for the search wouldn't necessarily imply the invalidity of plaintiff's conviction i mean that bar is quite literally of a bar and so although we may be able to say that that part doesn't prohibit the filing of an action merely prohibits the maintaining of the action i think that that that may be a distinction without a difference can i just as one question your time's running out with the fact that he was convicted in the jury even if it's overturned why isn't that enough to say there is probable cause here for the most motions prosecution can claim because because the issue of fabrication was not fully and fairly litigated the jury that determined the jury that convicted was not also given the additional information that the evidence the alleged evidence had been obtained unlawfully and in a case that was that turned on credibility it was very important that the jury know that ultimately the jury may not think much of that is it that may not be a successful argument but mr mills had it in order to fully and fairly litigate that issue should have been given an opportunity to provide it to the jury all right thank you very very helpful arguments in this case it submitted for decision by