all right i'll discuss that with you at the podium thank you and i'll reserve seven minutes for that response all right it's your responsibility to keep track of it but i'll try to tell you when you get down to seven watch looking at a clock ok to us is the issue of the favorable terminations caused by an acquittal in a mixed result criminal trial neither myself nor the my opponents have ever come up with a case either in the federal system or in the california courts that speaks directly to this point there's something to how do you get around staff pro very simply staff pro is a civil case and i just and in a civil case as we as all the cases tell us there is that when you bring an action a civil action those cases are all based on the primary rights theory as one wrong several theories and you get to the end of that case with a single judgment that could never occur in a criminal case come on case with multiple counts each count stands on its own and as i pointed out in the brief california recognizes severability it's just never been applied to a criminal case and i do want to comment on the fact that where the cases have sat in is judge carter and his own ruling in this on this issue it said that the california doesn't it doesn't make a distinction civil and criminal cases if you read those cases carefully what those cases have been saying when they did make reference to singleton which is the only criminal case that has been discussed by the california supreme court and the others is that yes when you have a malicious prosecution cause of action whether it's criminal in origin or civil in origin origin fable terminations is always an element of the distinction that i'm drawing is that if you have a mixed result as we do in this case and there's nothing in common between the two counts even though they arise from the same incident the case law supports that the that the the aggrieved plaintiff who can show malice plus a favorable terminations by an acquittal should be able to proceed on that cause of action not withstanding a conviction on another cause is are you asking us to certify this question to the california supreme court because cases are not directly on point but i didn't see any california cases nearly as close pointing in the other direction so are you asking us to certify the question that has come to my attention and in fact you should be told that at this present moment i'm handling and this identical issue in front of the fourth dca and a case called bronczek versus the city of redondo beach so precisely the same case you can say yes or no are you asking  ask to certify it because this is a state law question and i wouldn't want the court to start reading tea leaves as to what the supreme court might do it's my belief based on everything i've understood that the court's history of its decision making that it says that if you make a claim in a case that is made without probable cause and it's made maliciously and then you can you can proceed on a malicious prosecution claim in those cases they w they were never asked to which is the point if you can demonstrate that in any given case civil or criminal then they wouldn't take that right away if you prevailed in the claim that's being made that's made without probable cause it's never been said but i think that's where the supreme court would go if it than it were if it were after i don't know where the branch is going to take it there but i think that in the interest of letting the state courts decide on what skate courts want to do with it's been teed up for them as it was teed up for here and given the fact that it's a really a state law question him leave it to you to decide how to handle it but there is a method in certification is that method let me resecure against those defendants that same complaint was subject to a second to all the six motion on the twenty seventh of january and twenty fourteen and judge carter overrule that t so to speak finding that the allegations were suitable satisfactory and met pleading circumstances for the the wrongs that i was alleging on behalf of mr resig and then suddenly on opposed that part of the motion and while i did what i sense they did and you can see this from the excerpt is that i did address it as i did in the first two motions but i said listen the court has now had opportunity to pass on the sufficiency of this pleading twice government officials and the and the private parties and that is the claim that had been attacked on previous occasions there was an allegation that there wasn't sufficient evidence of those private party defendants i wasn't sure what your argument was were you saying that district court revised its determination based on additional research and review with thought and came up with its final determination are you saying that there is some rule of law that would preclude the district court from making motions was you've already ruled on this and found it sufficient when the when the motion came back and said that i didn't oppose that part of the motion i made in it's an instant recount motion because i had i didn't address it with the particularity that i would have liked to if i'd known that the judge was considering reconsidering his position to me it's a basic do not due process and i'll for me to be blindsided by this one eighty that the court took on me on the one nine hundred eighty three claim by dismissing it he gave his reasons but i was not put on the alert as for the reasons and as i said what i had done previously in the first amended complaint original complaint the first amended now the third was was deemed by the court to be satisfactory i questions of course your honor what facts rather than conclusory statements did you plead to show that there was a conspiracy between the i officers that they were in fact percipient witnesses to the event that they were there from the beginning that i think i also played in that in this summary of the case that the woman that mr resit was on the telephone with  overheard the comment made by the police officer to the guy that was simply there and that those two came to a meeting of minds is how i described it in the complaint and agreement that they would claim they came later when it was all over that's as much as i could do at the time i had the client point of told me they were there the woman on the telephone supported that both defendants told me that they the guys weren't there and then the criminal trial it's more like shed on it how because they claim that i put barbara and the officers did testify that he barbara and ray as showed up fifteen minutes after the arrest took place and were not witnesses to the takedown or the uses of force and then when the bar and reyes testified in the criminal trial it turned out not to be so they didn't say was fifteen minutes they claimed one of them did that when they arrived on beyond the scope of my question i didn't ask what happened in the criminal trial that i know you did not but i but i played when i was learning was would you point to me what paragraphs of your operative pleading record at page one ninety one paragraph eight of the third amended complaint it's same paragraph in the first the original in the second ok thanks i'll take a look at that and what i wanted to point out is that if you want to reserve any time you're down to four right now yeah well your other question was really our time so it's only aspirational that you can reserve seven minutes so there's a pending before the supreme court now is a case on going to affect this case and should we be should we be waiting for the result in the at i do not believe so only because irish who has to do with the application of the favorable terminations issue we're basing our one thousand three conspiracy but you think they're so the elements of what is a malicious prosecution claim i guess are up in the air based on this manual as with one additional thought of the usher case says that if the state doesn't provide for relief from malicious prosecution that's the big one and in california police officers are absolutely immune from malicious prosecution there is no remedy under california law from out prostate cancer to peace officers and i'll just say what i got left ok thank you good morning your honor is low it's for before we start doing the clock i want to have a discussion about how we're going to divide the time say your name again i'm lowest lowest go back four of the tustin police officers brian chop and mark turner and so how did you plan to divide your time i will take no more than seven minutes although i mean ten minutes although i think i'll get it done in probably seven or eight minutes and leave the balance to counsel for the i c p defendants ok so if you take your ten and that leaves five them is that what you're saying yes ok what i will tell you is if we have additional questions over and take or be on the ten i'll still give you the five all right so you don't need to feel sit there and want to leap up and pull are off the podium because sometimes but if otherwise if we don't have any questions then i'm going to tell you at ten when you've used ten to let him get up ok thank you your honor thank you i think that both parties agree that the question of favorable terminations is a question of law and that it's a question of law based on california law in this case the there are really three reasons why the determination of the district court should be affirmed first under california law favorable terminations requires a complete victory in the underlying action whether that action is civil or criminal is there a criminal case a point where there were two separate charges against the defendant as in here not that i'm aware of your own or not that there's no case on point right not directly but but in bad versus a period court but the california supreme court that was a case where there was an underlying civil case and they were siding with approval the holding in the where the where the underlying case was a criminal case and the bad court case said doesn't really make a difference whether or not the underlying case was civil or criminal the rationale and favorable terminations is the same and th dressed this ever ability issue you did not specifically address the severability so are you opposed to certifying this question to the california supreme court i think if there's any question in this court's mind as to what the california supreme court would do then certification is the appropriate route i would submit that the california courts have already decided the issue in that certification is unnecessary but certainly if there's any doubt in this court's mind it is a question of california law in the california high court should decide the issue but i w as we set forth in our briefs that that he read the tea leaves to say that they would decided light staff probably absolutely but if we don't read them that way and we say it's not we're not sure then you say certified yes because this court shouldn't be making california law should just be a applying existing california law crowley held the california supreme court and crowley held that in discussing favorable termination which was raised by with one of the the defendant in that case said that when you look at favorable terminations you have to look at the underlying judgment as a whole staff pro a california decision then squarely addressed the issue of severability and said the severability analysis that applies to malice and probable cause don't apply to the favorable terminations element of a specific facts of this case the two underlying criminal causes of action are not completely several under calif mr a mr isaac was charged with vandalism and convicted evangelism and also charged with resisting arrest and he was acquitted of resisting arrest but under california law under penal code section one forty eight a the actions of the police officers with regard to the underlying arrest are an essential element of a cause of action for resisting arrest under one forty eight a police officer has to be acting within the legal scope of his or her duties to in order for there to be a one forty eight a resisting arrest cause of action so if there was no probable cause for the vandalism charge or if excessive force was used in the vandalism arrest then the officers weren't engaged in the lawful performance of their duties and there could not have been a one forty eight a cause of action so in order to establish resisting arrest prosecution had to be looking at the vandalism charge those two can't be separated under california law so i think even if you get to the severability analysis you have to conclude that in this particular case those two underlying criminal cases or criminal charges were not severable because the validity of the vandalism arrest was a part of an element of the resisting arrest charge the second reason your honor is one that i'm admittedly was not raised in the trial court because it couldn't have been raised in the trial court at the time the child court made its determination we didn't have the jury verdict on the excessive force claim but again if a police officer uses excessive force then he's not exercising his lawful duties we know from the criminal case that mr resig was convicted of vandalism so obviously the the jury in that case determined that there was probable cause and that he actually committed the vandalism charge so we know that first element of a resisting arrest charge what was established we also know from what happened after the trial court made its determination in this case that the jury in the federal civil rights case concluded that there was no excessive force if the officers had used excessive force vandalism charge would have been improper and if they had if they had if the underlying vandalism charge if there was no banquet way right if if they if they had used excessive force the vandalism charge would be during the arrest if the officers had no lawful authority to engage in that arrest mr resit would have been authorized under both federal and california law to use the a reasonable degree of force to resist an unlawful arrest we know that we know that now that that can't have been the case because the jury in the federal civil rights case ruled that the  that the officers did not use constitutionally excessive force they could they if they didn't use constitutionally excessive force that necessarily means that whatever force they used was to overcome unlawful resistance by mr resig so by combining those two events actually the church it didn't find him guilty of one forty eight no but the jury in the in the civil case in the subsequent civil case found that the officers did not use constitutionally excessive force they could have only but it's just a question of whether there was probable cause for the prosecution not whether or not he actually resisted arrest so this that the determination that there is no malicious prosecution claim in this case can be upheld if the co finds that there was probable cause for the one forty eight a resisting arrest charge in the first place whether if there was probable cause to prosecute him the fact that a jury determined in the civil case admittedly with a lower standard of proof that there was no excessive force necessarily means that the officers were properly engaged in the performance of their duties when they used whatever force they used against mr mr resig if they use any force at all in the complaint alleges that they does that have a potential to have an effect on this action your honor i'm not familiar with that case but i don't believe so because this case is really dependent on california law not federal law right but if the supreme court says that for a one nine hundred eighty three malicious prosecution claim we  look at the elements of california law as it is a federal claim of a constitutional tort then with that effect our ruling here the ninth circuit has and again your honor i apologize i'm not familiar with that with that case the ninth circuit has said that there is only a federal malicious prosecution claim when there is an allegation that there has been a violation of equal protection or when the when the prosecution the alleged malicious prosecution was used to deprive the the defendant in the underlying case of a constitutional right there are no such allegations here mr as it wasn't a member of a suspect class and there's no allegation that the underlying criminal charges were prosecuted for the purpose of depriving mr resig of a constitutional right other than the right not to be subjected to malicious prosecution and if that were the only thing that were required that's just the bootstrap argument so there has to be some other constitutional right first amendment right of speech first amendment right of assembly and equal protection claim something like that that isn't present here i just have would would my question about the litigation  probably but if you want to ask it i can i'm not sure what the question is so it's well it was i think that it that it came up about on the conspiracy theory on that the california court of appeal held that reports by citizens to police regarding potential criminal activity fall within the litigation privilege absolute privilege and so it went to the allegations of that the officers and i p c had it that there was a conspiracy litigation either statements to the police or witnesses witness statements in court so i think in this can in the situation of the one thousand and three action if you come to the same result about protecting the statements made by the security guard i guess what it's i guess was can mr resect state a crime for conspiracy without relying on the statements made to the police officers i think to have a conspiracy you have to have a meeting of the minds which is what mr beck referred to a meeting of the mind that is to euphemism for conversation for discussion communication you can have a conspiracy with a wink and a nod which is what he's suggesting what he's saying is that the security guards really came into the scene fifteen minutes after the arrests now that may have been disputed a trial that really goes to what they were going to testify to what they told the police it doesn't go to a conspiracy in the sense that you have an agreement to prosecute mr resig for resisting arrest if you look at the malicious prosecution concept in california we're not a party we don't feel like we're a dog have a dog in this fight because we didn't the charges we did not investigate the charges were not the police were not the prosecutor were just the witness these people were just witnesses that mr mack back may disagree with their testimony he may even think it was false testimony but that's not enough to create a conspiracy or concerted action mr beck refer to paragraph eight in his response to the judge by his question of his third amended complaint i looked at that last night i don't see any allegations of a conspiracy no specific allegations of an agreement a meeting of the minds or anything like that as judge carter found this is all speculative it was really no specific allegation of a conspiracy so we don't regardless of what the court does with certifying the question on crowley we don't feel like we're a part of this case lou just witnesses were security guards we're not cops and we're not the prosecutor or the city that's fundamentally that's our case unless the court has any recognized and pled in the complaint is the right to a fair trial it is played in the complaint not as a coconspirator to the malicious prosecution the conspiracy that's alleged is they came to a meeting of minds that they would never be there to testify and consensual except for the security guard dispatcher who we finally got the testify at the trial that man's testimony it laid it out because we didn't have him in the criminal case we were successful in bringing him into the civil case he completely impeached the officers testimony completely impeached the testimony of the two security guards and without going into the particular details i don't know that i need to do that but he finally shed a light on the fact that there was a videotape in existence that he was able to stand down with the video cameras and take a close look what was going on that that vehicle never left that it just backed up to the spot that mr resig was found at that those i think i'm almost at the other point i would emphasize is that that the custom defendants are conflating probable cause for a five ninety four and probably cause for one forty eight the fact that we didn't prevail on the excessive force claim as a matter of the ninth circuit authority has no reflection on whether there was probable cause to arrest for that a crime at all they simply did was no one constitutional force proven through that to the requisite standard it can't be extrapolated backwards to say well therefore there was malice or there was not malice or there was probable cause or there was not probable cause those things have to be kept distinguished in analytically have to be distinguished as as the authority of our circuit