basis of criminal charges that had been filed against them the case as you i'm sure quite aware of raises an issue a procedural due process and our main claim on appeal is that the granted before the hearing officer determined based on the facts and the evidence produced at that hearing that they weren't title for the backpay because directly because the department could and did not prove the truth of the criminal allegations against them the commission in the complaint our claim in the complaint is that the commission is the one that d these two plaintiffs due process by imposing a policy which denied any county employee the right to back pay simply on the basis of charges being filed against them now there is no civil service rules said says having a felony charge filed against you makes you unable to perform the duties of a deputy sheriff or frank there was such a role there is another way about roe eighteen zero one and eighteen three one eighteen zero one a simply defined the terms of a suspension how long of a suspension can be imposed on an employee it does not say that if a felony charges filed against you you are prohibited or disabled from performing the duties of such appeal rights as provided in this rule and employee may be suspended by the in point of power for up to and including thirty days pending investigation filing of charges and hearing  cases cited by the department which say that there is no property right because the rules say that you lose your job under certain circumstances for example i think  still yeah i you still have a right to a hearing and that it's a question of what what is the scope of the hearing correct take is the rule i mean if if the under state says into  cases is what is the scope of this hearing if all they can respond to pre death provision is whether a felony was filed or not then that in our opinion is also a denial of due process because i don't understand about your position though because if so if there's an indictment charging a police officer with a federal crime that means there had to be probable cause for that indictment to get to that point and the law seems to say that you can the stand someone a police officer where there's been sufficient probable cause to say to him jive him and why would you want in any other way what i'm saying is in order to sustain the suspension after the fact you have to have a preponderance of the evidence that he actually engaged in the misconduct will add interest after that after he's been convicted or acquitted or the charges dismissed right right are our objection is to that post deprivation spencerian where he can actually prove where he proved by a preponderance of the evidence although he doesn't have the burden of proof that he didn't commit the crime that he did not engage in the conduct yet still be punished for it that's what the due process violation it if he didn't do anything then he shouldn't be punished just because somebody falsely accused him of doing something with and it's there is under gilbert versus homer there is a difference between the standard under which you can initially suspend but even gilbert versus homer very clearly says he's entitled to a post deprivation hearing on the merits of whether they have to spend june was meritorious whether he deserved it and he doesn't deserve it if he didn't do what i hear you talking about whether he's entitled to back pay or not i mean yes that's that's a that's a part of it that's the perhaps that's the concrete result of the finding that he didn't do anything wrong but but that's the point of the hearing under due process is due for the department has the burden of proof to prove that he did something wrong and that has to be again by a preponderance of the evidence not just by probable pay they have to pay another police officer for those hours to work those hours where for which the other one that was under felony charges is suspended right that's the same in any suspension if they suspended because he crashed a patrol car or because he came into work late if they suspend him they have to pay somebody else to work behind him yes that is true so is there a role that says that can the  the county has to pay back pay in addition to the paid there are we paying for the person to replace a person who suspended us like this levelers that the civil service rule in the in the county code say that if you are wrongfully suspended you are entitled to a back pay if you again if the employee is suspended because he crashed a car or because he came in late to work or he called in sick too many times none of which are remotely they are found not to have engaged in misconduct they can't be disciplined for that misconduct so the service rule one says that the county code specifically says if the employee is found to have been wrongfully suspended he's entitled to in word of back pay back salary and benefits have you presented any evidence of accounting policy of upholding all to some evidence that the county adopted a policy of upholding to suspensions if there was a sufficient nexus between the felony charges and the deputies position but i don't think that's the same thing it has always been  incur into the particular facts and he stepped this case and i think you're alleging something else i think that semantical difference because the sheriff's department has always said that any felony charge has a nexus to the deputy's position and the civil service commission has likewise adopted that were does it say that i guess specifically i believe in the declaration of deputy dead in this case she stated that what the commission in her case said was all the department had to prove was that the felony was five so they are the measure of proof to a step wish the nexus is  the fact of the felony filing so it's in some ways it's a semantical difference but to prove the nexus all they have to prove is the filing of of a charge so it is in any case the judicial review under that section i think it's one zero nine four point six of the california cold provide adequate process for clients because that's not a due process hearing that's not a hearing on the merits of the allegations it's not why not because all it is is review of the of the record but a dick but they get to that they get to appeal or seek some sort of review of that decision due process requires a hearing on the merits and it requires a meaningful hearing at a meaningful time and to say that it is meaningful to go through pen days of hearing over a period of two years and follow that through with a commission review that takes another close to a year sometimes longer and then have to go to the superior court which is another at least a year to  process that is not a meaningful hearing at a meaningful time and a meaningful hearing under due process is a hearing on the merits where a witness comes and testifies under oath this is what happened and that attorney's fees in this case but that was half of the litigation critically so just to say that they're not entitled to any recovery for any of that is wrong they did prevail in this court they did prevail from being dismissed to getting to summary judgment and they did and they are entitled to recover at a very minimum the attorneys for you for that portion of the case my name is conny allman and i am representing the defendants in a pelleas in this action the county of los angeles as well as the other named defendants we are especially requesting that this court reverse the summary judgment ruling in favor of the wilkinson plaintiff and instead find in favor of the defendant affirmed district court's ruling regarding the attorneys fees award let me ask you films like based on that same and you're arguing that none of the four the pennants defense was entitled to post a suspension hearing is that honor i but i guess i'm a little confused because it seems like the prior panel on appeal hold the due process required that they receive post suspension hearing in plaintiff's complaint to be true the court assumed that there was a protected property interest and assumed the hearing process that was provided to the various claims of as alleged by the plaintiffs however that this court held in that case that it was premature to conduct a matthews versus eldridge due process analysis and that surely would be required in order to determine if these individual plaintiffs had their procedural due process rights violated and there had been no fact finding no developed record at that point so this court was assuming those facts based on plaintiff's allegations now we're looking at as a valid record where we do know in fact what the county's policies are what procedures will provide to seattle based on the facts that were presented to them they found that sufficient i don't know how you take the facts away at them at this point and say oh we we that's no longer the law of the of the case where the court did assume the facts that were implanted allegations that for example the court previously did not review rule eighteen zero one a which this is more specific than eighteen three one eighteen zero one eight is the rule that specifically states that a deputy sheriff could be suspended while felony charges are pending against them regardless of whether or not they actually engaged in criminal conduct the fact that there felony charges pending against them alone would be sufficient to support their suspensions likewise the district court erred in this case and find in not recognizing the nuanced but very real eighteen three one and gilbert established they do not have such an interest so on the other hand the majority did say roll eighteen three one does not clearly terminate the deputy's protected property interests as soon as she is charged with a felony and does the role is not determined at this stage of the proceedings so it's a really close question  as to whether we can hold anything else and you know whether the district court even erred by following that you're right your honor judge agreed as dissenting opinion did tackle majority's ruling pretty head on but again even in that portion that you just read it was based on eighteen zero three one which does not specifically speak to criminal charges pending against individuals and i believe that had the court reviewed and had the district court focused on eighteen zero one more specifically they would have seen that here right or wrong the county has a policy which specifically states that deputy sheriff can be suspended while felony charges are pending against them this is undisputed and does it say without pay it deputy sheriff facing felony charges they will be suspended without pay only for the term that felony charges pending against them so with that policy under board of regents versus ross this court looks at the state law and the property interest if any that the state law provides again the county's law does not provide a property interest while they're facing felony criminal charges and then only after that if there is a finding that protect the property interest to evaluate whether or not adequate due process has been provided here as the court has noted none of the plaintiffs actually pursued their retaliates so even to the extent that they believe that they were entitled to some other process or additional review some sort of due process for whatever reason they simply chose not to utilize those procedures that were for that were before them consequently unders in their inverses urge as a matter of law they can't allege a procedural due process violation he simply didn't use the process that was available to them they might not like that process they might not believe that it's adequate but they have to first use it before they can in turn claim that that process is somehow constitutionally an adequate and that's been supported by the second third six eight and ten service as a matter of law there is no harm there's no injury because the state has not denied them any due process they just chose not to utilize that process and you're right in that had they filed a writ petition the announcers would have a very different that the trial court would have evaluated the the ten days of hearing transcripts and all the witness testimony and the court in the court could have determined that the commission's decision somehow was an abuse of discretion and it was not supported by their record but the plaintiffs here did not provide the trial court the opportunity to provide them due process they may have gotten what they have wanted maybe they would have maybe they wouldn't have but they never provided the system the opportunity to find out to the extent that this court does find that there is a protected  been provided as required by the constitution but the wilkinson plaintive the court never provided an due process mathews analysis for the wilkinson plaintiffs and had the district court done that consistent with coleman versus department personnel administration by the california supreme court we believe that the court would have found that no post separation hearing was provided under these specific circumstances so even again if there was some sort of protective property interest there'd be no purpose no useful purpose in providing a post affirmation hearing where there's no dispute that the individuals were facing felony charges at that time during the term of the ship's pension consequently that independently verifiable fact in and of itself justifies the deprivation there's zero risk of erroneous deprivation because there's because the basis of the suspension is the fact that the felony charges are pending plainness with life for the county to have a different policy about a policy that states of the suspension must be based on commission of actual criminal misconduct that is not before this court here we are looking at the county's rules as they are under bell and bell or vs midden door this court looked at a navy regulation which existed at the time which allowed for involuntary discharge of service members who were engaging in homosexual activity and this court held that regardless of whether or not that policy is why it is the navy's parag it isn't right to have such a policy and if they want to change the policy they have the right to do that but this court review is much more confined and is confined to look at the policies that exist and whether or not they create a property interest and if so whether or not the plaintiffs were denied due process here again even if the i mean that they had a property interest to continued employment causing insomnia and other issues aside i guess from the question of whether mr deputy wilkinson ever got professional help it seems like these statements were disputed so i guess i'm asking you why aren't these declarations of the first sufficient to submit the damages issue to a jury that's an excellent question your honor under kerry versus typist the u s supreme court recognize actually mix the two they say for example plaintiff share states that he lost his house he didn't lose his house because he was denied due process he lost his house because he went without pay no i understand that but he does say he a lot of this happened because  where simultaneously you have suffered a substantive deprivation of property interest and not to mention that the plaintiff here were also facing felony criminal charges i would imagine that would be fairly stressful as well so how do you differentiate what the damages the emotional distress that they allegedly suffered comes from the criminal charges the deprivation of money or the actual deprivation of a hearing therefore inquiry vs privacy u s supreme court said because of this ambiguity and cause a nation there must be evidence of actual injury object to the self serving declarations that wilkinson and cher provided at pages ten forty five and ten forty seven of the record and first of all looking since that was the basis for the objection it was speculative and was off or it was also improper lay opinion testimony as to whether or not the debt their distress was related to the procedural due process violation as opposed to emotional distress and carry the court mentioned that some sort of supporting documentation would be required either evidence of expert witness testimony medical documentation declarations from other individuals all the evidence that they had was simply their own declarations not to say that that's not relevant but that's not sufficient to show actual injury where there is such a high likelihood of party argument with its title is as clean as hold any holds any merit here the district court's ruling very clearly stated that they were to take nothing there was nothing under the court under the case law they had to find some sort of resolution to the dispute that directly benefited them misgivings and certainly correct that they were successful at having the motion to dismiss ruling overturned and they had their opportunity in court but that did not give them an overall win on their claim they didn't directly benefit from the lawsuit in its entirety they simply had a greater opportunity to present their case and from the trial court the trial court found that there was literally nothing practicable that they could have been provided more than they had already been provided the death plaintiffs were unhappy with the result but they were unhappy with the process itself they just want a commission to come out with a different ruling but they had ten full day hearings where they were allowed to present evidence regarding whether or not they committed the underlying acts and they were successfully able to convince a hearing officers to rule in their favor but they are truly prevailing parties where they took nothing and there is nothing in the district court's ruling which directly benefits them they don't get extra hearing they don't get back pay there's nothing that benefits them from the actual ruling finally with respect to plaintiffs requests appeal regarding the denial of leave to amend defendants would urge the court to affirm the lower court's ruling that has the three proposed plaintiffs their plans are time fired and again under a piece of discretion what the rules require or what the extent of the property interest created by rule eighteen zero one and eighteen all three one provide what that was the issue all three one was not was not ever discussed in the trial court or in any of the briefing the dissent came up with that rule by themselves because eighteen zero one was the rule that was discussed and was brought to the court's attention and the fact that the defense came up with a different rule clearly indicates that the dissent didn't think eighteen no one did the trick on you  bunch of them we pile them with sorry we should file the majority and what the defendants want you to do is file follow what the dissent did in this case and say that the rules don't create a property interest but the majority said that they do and now that the defendant's onces tell you that well they didn't have a factual basis to make that their interpretation or rule it's a question of was there was no other evidence presented in this case the trial court about those rules the rules say what the rules say and what the rules said when the first time this case was up here that the majority said those rules create a property interest which entitle the these plaintiffs to pre deprivation due process and a full post deprivation hearing that's what the majority said now the defendants come in and tell you oh there really isn't a property interest because they can be suspended and what they relying on are cases that say if you do say you are precluded from holding this position specifically the navy case with the homosexuality rules you and in those cases the navy officers admitted to homosexual activity they said yes i did this but this is a bad rule in these cases these plaintiffs have always said i didn't do that i was not guilty of what you accused me of doing there's a difference there's a big difference because in the cases in coleman and the navy case the rule the preexisting rule says if you don't come to work we're going to fire for you you don't you are not entitled to hold the job in the navy case if you engage in homosexual activity you are not entitled to hold the job there is no rule in the civil service commission that says if you have a felony charge filed against you you are not entitled to hold the job that's the rule that you have to have to limit the property interest to say i can suspend you either with or without pay does not say you don't have a continuing property interest and says you do because you get to come back from the suspension it's only when the rule says you can't have the job and the only rule in california that says you cannot be a police officer is the law that says you may not hold the position if you are convicted of a felony not if you are charged with one so there is a interest here and it is a legitimate property interest and when the department as they just came and told you that they were doing reads the rule to extinguish that property interest that's when due process is required so as soon as they say i'm suspending you now due process is required that requires a full evidentiary hearing that is meaningful that is not pre determined in its outcome by a policy that they want to say but does not is not stated in these rules there is no rule of the civil service commission that says you can't be a police officer of a felony charges file these rules apply to every single county employee there is certainly no rule that says you can't be the county dog catcher if there's a felony charge filed against you so this rule does not define the property interests the property interest is defined by the rule that says you can only be discharged for cause and these rules say the department has the burden of proving the cause there is no rule that says  cause for suspension if a felony charges filed it says you can be suspended but in the if it also says you can be suspended because you didn't come to work on time three days in a row that doesn't mean the department after they suspend you doesn't have to prove that you didn't come to work three days in a row and that's the same thing here the issue is they want suspended just because of the felony they were suspend and the letter say because of the conduct underlying the felony that's what they were suspended for and this there isn't a rule that says that you can suspend somebody solely on the basis and the department the defendants here haven't pointed you to any rule or to any evidence at all that that's the department's policy the fact that the policy is that we're going to suspend you because there's a felony of criminal misconduct charged against you doesn't mean that they don't have to ever prove it that you did it that's what happens in all suspensions and in all this churches ok and i'm repeating myself you the court's ruling was in fact different than what the department what the county's policy is because the court actually said they had a ten day hearing on the merits of the criminal charges and therefore they got due process but the county is still standing here telling you that all they have to do is prove that a felony was filed so that is different that according to even if i lose everything else this and this court the trial court stand they are required to prove at the two process hearing at the hearing in front  officer the merit of the truth of the criminal charges that was what happened to debs and o'donoghue we had a ten day hearing and they could not prove any of the criminal charges that they filed against either one of them that's why the hearing officer said you're entitled to backspace because they couldn't prove the merits of the charges they're still standing here arguing to to you today  that because he was acquitted of the charges pled to misdemeanors and some and some charges were dropped they were only she was only suspended because of the felony the felony if neither them actually were convicted of a spell on the correct ok and neither of them in the administrative hearing under the lower standard of proof were found to have engaged in the conduct that was the basis for the felony firing in both cases the hearing officers found