good morning may please the court my name is joyce bertrand and i represent mr camp in terms of time i would like to be with the opening argument use seven minutes and then reserve eight minutes for rebuttal i'll be keeping an eye on the clock out as well this case is about the private use of a public agency for personal gain and the record has seen develop for broad legal issues the st being the county's mono liability the nd being the prosecutor's claims of immunity rd the investigators immunity claims and then l evans lack of probable cause with regard to the mono liability there are two issues that have presented here and they developed at the at the rule twelve stage and then again in a greater sense and the record before this court st is whether or not mr kim played adequately a pattern practice or policy of the county and here taking all the facts is true in his amended complaint used we have the pattern and practice that evolved in this case is there any evidence of anyone other than cam there was actually prosecuted consistent with this allegedly pattern of practice so there is nothing in the record that indicates that anyone else has been singled out for miss the treatment that mr kim received where a pattern develops contrary to some of the other cases who have said when it's a one time thing you don't have a pattern here it happened twice and it happened after state court judges were saying you can't you have a real problem ethically with this case a state court judge for say that because i understood the st time he charges were filed and then when the conflict of interest was brought to the prosecutor's attention he he agreed and he dropped it only the nd time in two thousand thirteen did i understand that the district court actually weighed in in the st prosecution in the discussion at that hearing regarding the apostle conflict of interest conflicts of interest with this case the court turns to the state and says ok we agree you've got a conflict here and then they'd go on to discuss whether or not the option is you send this case out to another agency or you allow it to be dismissed without prejudice and mr brandon said basically acquiesces and says dismissed without prejudice so that the the let's assume that for a moment i was just a little puzzled because the the court had already determined that there wasn't a genuine issue material fact as to probable cause in the subway solely on a malicious prosecution issue and if there's probable causes that is for a court found then there's no malicious prosecution claim what do we do with that your honor i would respectfully disagree with the premise that the trial court was correct in that probable cause well let's say for a moment we disagree with you and we think that there was there wasn't anyone issue of material fact as to honor st evidence isn't covered by the more no liability right but it's the same malicious prosecution argument i mean that it's all about the malicious prosecution of your client based  on the the claim that he had they had tendered a forged forged contracts and then lied about it and the the district court said there's no genuine issue material fact that there was probable cause to bring this prosecution then judge the county prosecutors still allowed and brought twice a prosecution where they had clear conflicts of interests where every state court judge who looked at this case it was brought for improper reasons to be vexatious but can we find a malicious prosecution claim if there's no if there is probabl cause i thought lack of probable cause was a necessary element your honor i think that the other state court findings tell us that they did not have probable cause that this state cannot rely on that defense and the state has never  county has never asserted that argument so it has not been developed either before the trial but let me point you to the the summary judgment of this summary judgment decision by the district court this is  a twenty nine he seems to address this issue that the district court says kim can overcome such a presumption about lack of probable carson by showing that the criminal prosecution was induced by fraud corruption perjury fabricated evidence or other wrongful conduct undertaken in bad faith but he has failed to do so here so i i think this is similar to what judge is asking you which is where the liability your honor i disagree and you disagree with the district court's conclusion or you district disagree that even in light of the district court's conclusion that that forecloses your liability or them the county's liability well but in terms of the question of the courts asking regarding is the county's liability for close no because the county had an independent obligation to investigate this case to confirm that what reaction against evan since he's not a state he's not acting under color of state law but but assuming that that was appropriate the argument about evidence is also that he induced the prosecutors to take the action so it seems like it's the same issue in both the summary judgment in favor of evans and for the now claim the prosecutors did something that they should never done i mean that's the only source of liability cases and the district court said that claim fails as a matter of law but i disagree that that claim fails as a matter of law because there are discrete factual disputes regarding evans lack of probable cause and i'm going over my time but i'd like to address this and make it clear that i'll come back after the  believe speak with the court here there are very clear facts that create a dispute regarding evan's probable cause so in the record we have kim under oath saying evans signed these contracts i saw him sign them we have in the record evans cash the checks so there's no question as to whether or not evans got the money from kim and they continue doing business for several years and we have evan sitting in his deposition testimony with me but the question is not whether he forged the contracts or not the question is whether the prosecutors were reasonable and saying we've got two experts telling us that the contracts are for do we have probable cause to go forward with the criminal prosecution and it's pretty hard to say when you have two experts telling you that contracts are forged that you don't have probable cause the experts did not find forgery they found tracings and they never confirmed that they were looking at the originals tendered by mr kim they never confirmed that mr kim did anything these documents were taken by evans and nationally and sent out and then sent out via the prosecutor taking them out of evidence and driving them to phoenix as if some time for rebuttal i would think  this appeal arises from the granting of two summary judgments one for mr evans and one for the county defendants and the summary judgments were based upon undisputed facts two expert document examiners confirmed that signatures on four contracts that mr kim alleged in a verified complaint in arizona state court were true and correct contracts between him and mr evans were genuine and then mr  testified under penalty of perjury in a deposition that he physically witnessed mr evans sign those four contracts now there was an original contract not those four that undisputed was signed by mr evans mr kim at the end of that deposition oh and by the way mr kim also testified in deposition that the terms of the four contracts that were forged analysis that seemingly could have been short circuited well the there were allegations in the various complaints filed by mr kim that mr evans was acting under color of state law and because the proceed below arose in the context of a summary judgment motion i didn't focus on that because i didn't want material of issues of fact in dispute that kind of thing so that wasn't a part of the motion but what was part of it was that the facts that are undisputed come from the deposition testimony of mr kim that he saw mr evans sign these four contracts in his own personal vision and that they are the terms of them are more favorable than the actual contract that was signed by the parties and mr bertram argued that you know there's no way to know how the contracts got the four in question got to the st document examiner well there is a way to know and there's evidence below and that's the declaration of steve suskind on at pelly evans excerpts of record at page forty four paragraph seven it says at the deposition of kim in the underlying civil action i arranged for kim za turney kim's attorney to provide directly to sandra ramsey lines a forensic document examiner who  an expert witness who i had retained for evans the originals the originals of exhibits a b the eight so that's all five contracts a was the one that undisputedly was signed by both parties and then b arizona state law case forward them to misalign so there is no chain of custody issue the evidence on this is that it went directly to the expert the expert determined that those four signatures were authentic in authentic and then after that happened that is when mr suskind mr evans lawyer in the underlying state law case in arizona that is when he forwarded it to the law positronium officials and said here's sand alliance report this is what's going on here's the deposition and when he said he witnessed it under oath here's the verified complaint where he verified under oath that these were all original signatures and so based on that and based upon raymond rayburn evans's knowledge that he didn't sign the lease that these were different terms in the contract that he did sign he had probable cause to believe that mr kim had committed forgery and perjury and so he made that referral and based upon that and there's no facts in the record that dispute any of that it's all undisputed based upon that there's a problem there was probable cause for him to do so and because there was probable cause for him to do so counts one through six of evan's complaint against mr i'm sorry kim's complaint against mr evans all fall away and the district court was correct in granting summ that there is no evidence of that there's no evidence at all of any racketeering or abuse of process predicates it's it's a stablished that in order to make those claims  mr cam would have to put forward some evidence of an act or a threat involving murder kidnapping gambling arson robbery bribery dealing in obscene matter or dealing in a controlled substance or listed chemical or similar type acts there's no evan that mr evans and gauged in any of that there was no evidence submitted by mr kim below before the district court and there's certainly no evidence that she put that mr kim points to in the briefing before this court it's it's a hope and a prayer it's an argument it's a naked argument on supported by actual evidence what happened in this case is that he had a civil claim against mr evans that's fine he thought he was owed money that's fine too he filed a lawsuit that's why where mr kim went wrong is he created in fabricated evidence in support of his lawsuit and then he verified a complaint that attach that false and fabricated evidence and then he lied about it under oath in a way that really deposition at the underlying facts rather than the issue before us is whether there was an earth there's a generation matter of fact whether the prosecutors had probable cause to bring the criminal action that is correct that's all we're looking at right that's correct and based on the undisputed facts mr evans had such probable cause and as an initiator even if he had an ulterior motive or to the case law cited in the briefing even if he had that alter your motive he was as an initiator of that criminal proceeding he's protected and so with that i'm a little over my time because i have co counsel who is going to argue for the law positive county defendants but the one case i wanted to refer to was the walsh case the arizona supreme court case in which initiators are insulated further if at the time of the initiation they have a reasonable belief in the guilt of the plaintiffs and leave it to others to prosecute mr evans certainly had such reasonable belief and mr evans did not engage in any prosecution on his own so that's a further basis for this court to affirm the district court summary judgment thank you your honor si go further relative to this if there is probable cause you don't have to rely on any of the attorneys here rather in the in the records that were submitted to you namely i'm using appellants convention docket one  thirteen through nineteen mr sons who was the defense counsel in both in both the st and nd prosecutions this is during the nd prosecution on may th two thousand seventeen they're there in the criminal court to argue among other things a motion to remain in mr sun said states quote but afterward after being asked by the judge well should we decide to remain in motion st because i take care of all our problems mr sons did answer is quote but after reviewing the transcript and he's referencing the nd grand jury transcript it appears that all the necessary steps to consider is were followed and there was absolutely no basis here there's there's no absence of probable cause the only question becomes is judge nelson pointed out whether the very narrow exception for outright provable fraud can applies here and other than there's no genuine issue of material fact about the presence of probable cause but but aren't we turning back the clock to look at the the just records ruling on the the complaint just on the allegations of the honor in a manner yes and so i'm going to put the cart before the horse a little bit it would be an alternative basis if you will to uphold the court's decisions but more responsive or directly in the context of the motion to  in order to move forward on that one i'll claim and the court found as much that there was no in the court actually in terms of where it comes up in the record was the me to decide its determination a page sixteen lines t through seven that there was no allegation of a formal policy or an allegation of a pattern of similar behavior on the part of the prosecutors that ended the man now claim and not speciously or unusually because he had a ruling and it was dismissed it wasn't raised in our motion for summary judgment that we laid that out some particulars because of the length that a case to allow the judge to remember what had so and so what if we disagree with that ruling and i think there's an argument that because the prosecutor is it is assuming it's a county agent and a policymaker for the county even a single action could be a policy action for purposes of  the argument concerning the ultimate authority decision maker authority after they raise it in their complaint they never argued in defense of the motion to dismiss they didn't argue it in in terms of  you want to visit that issue then i would direct you to those cases we cited that talked about how state prosecutors in arizona when they're bringing criminal charges are represented to the state not of the county even appellants agree that that decision on your part rests primarily on errors on the lie so i did to you a supplemental authority a case as recent as just a couple of months ago that again while a hotly disputed in very important case in arizona criminal circles the one thing that this sent the majority absolutely agreed on was that a prosecutor prosecuting a case is acting for the state not the county plaintiffs have never ever said what did they do other than prosecute this case that would constitute some sort of administrative or other activity for which prosecutors can be held liable and i should take that back a little bit they intimated in their complaint there was other information namely defamation extrajudicial defamation if you will but when push came to shove and they were asked to prove that up they had nothing so that's why the defamation case had to wait till the summary judgment  prosecutors are always when they're when they're prosecuting cases always agents of the state not of the county to planets and never had a it response to that other than echoing the same statutes not really arguing to the contrary those are the guarding the twelve b finding regarding a lack of pattern it's my understanding of the record that the state of the county never played that in their twelve b papers the court the trial court made that conclusion on its own so we didn't have an opportunity to argue it we raised it here we brought it up here if the court is inclined one option may be because of and and that's it so why wouldn't that just be futile i don't think it would be futile judge because here it would go to the knowledge and what the prosecutors did prosecutor's office do not simply bring every case that a citizen calls up and says i think a crime was committed they have an obligation to conduct an independent investigation to ensure that they stay independent from the investigation and hear what underscores their lack of probable cause which underscores evidence like a probable cause that if you accept mr kim statements is true which we have to do either at the twelve b or the rule fifty six dollars stage then evans knew he signed those contracts he owed the money that is a clear bakshi will determination what does that have to do with probable cause as you do a probable cause because if evans knew that he signed the contract which is the crux of all of this then he knew those contracts were forged so has i guess i'm not following you so the prosecutors camm argues that their they were legitimate so there's a dispute over whether the contracts are legitimate or not that doesn't have too much bearing on whether the prosecutors had probable cause to bring the the prosecution obviously they disbelie cam and they had to expert reports to rely on so the only issue is whether that was enough for probable cause and the district court said it was and so why does it make any difference whether it's the the prosecutor's with a view towards final liability or the prosecutors with a view towards evidence liability i'm not understanding it makes a difference because all of that prosecution is based only on the genesis of being evan and prompting of this investigation and they're doing no outside investigation and keeping it in house they did not develop probable cause i wanted to answer one question judge accoutred that you had regarding how evans got pulled into the one thousand nine hundred and three litigation he the plaintiff pled a conspiracy to violate civil rights and private parties can be brought in under that coulda permits that as that is could you revisit the issue of why you feel there can be among now a violation even if there was probable cause to prosecute yes or because they continued prosecuting after they were told you don't have probable cause they continued to press forward after judges were saying this has to stop and while the defense counsel for mr cammon his criminal case may have had some commentary on the record the fact is courts arizona state courts who have looked at the said this was a bogus prosecution from the brought only to benefit evidence that is how we get to mono liability even if they had probable cause when they went to that st grand jury the other thing we know is that they created that probable cause in part by hawza is less than honest testimony before both grand juries and how i was the county liable under mon now if the prosecutors are acting as arms of the state in prosecuting versus county actors your honor i just wanna make sure i understand your question right right well that they're not operating as arms of the state as discuss in our briefing both before the trial court and before this court the arizona law much like goldstein versus los angeles we look to the state law controlling counties attorneys is very clear the state cannot get involved and directing criminal prosecutions unless they get specific permission from the governor the attorney general cannot tell counties what to do so for example in arizona we just have a lot of litigation about marijuana and it's how we're going to prosecute medical marijuana cases there was a split in the counties some counties were prosecuting it with the resin from the edibles some were not so if the governor gives approval and they are the  general can direct their activities to turn a general can prosecute the case they can't tell the county attorney what to do i think that's an important distinction you want to do you have anything else i want to make sure that our