for purposes of issue of lucian because under california law an unqualified reversal of a judgment puts the parties back in the position as if the trial that never occurred and all of the issues that were raised second of all even if it were to satisfy the requirement for a final determination there's another hurdle you have to overcome here and that is under california law issue preclusion it's only applied where comports with fairness it's because that is people versus cooper which says that that's equivalent to using the word reversal fairly broad like there are other cases in california that sank that it is final when there is no right to challenge it on appeal cases in those two categories are cases where there's an absence of a final judgment on the claims and then there are the other cases where there is an unqualified vacating of the clear it seems to me that there are different kinds of finality for different purposes and which is an interesting concept but it does suggest that finality for you should preclusion is easier to come by than finality sort of talks about things that are tentative and you know subject to rethink ing during the course of a proceeding and so forth and that's not your case i mean i find it somewhat interesting that our own court actually looked at this question and it was later held that it's looking at this question was not itself issue pretty close but our court looked at this too and there's a footnote happens when that ruling admittedly it becomes final one direct appeal we all agree with that then there is a subsequent ruling that is an unqualified vacating of the judgment and so i would not on this ground martin not case where there was a criminal conviction there was an issue about the admissibility of the confession and there's an instructional where they reversed on the instructional air and so the case gets sent back to the trial court and what they say in that case was to stand it was entitle to raise her constitutional claim again on retrial so it's the reverse so the on qualified reversal of the judgment that puts you the instruction where was the reason for the release of the confession had nothing to do with the instructional or no but that but it seems to me that that is what the judge wavers asking about her but nowhere do we have any court that has said motion ruling in limon e was wrong i judge you know i think that what you had was the original determination every court has reviewed that after that but under california law the question is whether or not this is subject to relate a geisha and that's really what the issue is here and the litigation in the criminal proceeding we don't have a criminal proceeding here we have a civil proceeding back because it was dismissed but my point is that under california law it's subject to  case that it was issued in which it was issued so that if mr hall had another trial he would be able to really get that issue then by definition it can't be final and another matter and i think that if you look at the two categories of you'll see that there is the absence of a judgment and then there's the unqualified reversal and then the unqualified reversal if you look at madsen if you look at barry again and if you look at andersen you get to relive a good that if you win and that's just the rules of collateral  on on rulings that were not the basis for the reversal if you had such a case i assume it would have been featured in your bring we don't have one exactly like that with the grain dealers they're just mutual insurance which is where there is same situation this year where order after that hearing denying the merits of the claim and that seems to me factually at least to distinguish your case from frank i think it does distinguish it but i don't think that fundamentally changed the outcome because the sort of sliding scale of finality because understand of all one of the requirements and again our positions don't get to that because that's an absence of objection as opposed to unqualified tourism but if you get to  that second category of cases where there is an absence of a judgment the first requirement is that the nature of the ruling itself is the last word of the rendering court that nothing outlet is left to be done merit yesterday graber but the question is whether you look at that as a temporal consideration whether you look at a subset of consideration is the guess that it is the way that i would describe it and if you look at it as substantive which i think is the way the yes has to be the nature of the rheumy that is the last word of the run the report has to be something that is sufficiently significant that it terminates litigation otherwise you would have situations within women the rulings where they would novelty i'm sympathetic to your argument that even though the direct appeal may be over some collateral review of the case may result in an entire vacating of the judgment turning it into a nobody and eliminating all of that collateral effects i suppose the most extreme case might be a subsequent decision by some collateral review in court if the court that made that original judgment jurisdiction over the person or the subject matter so the decisions that were final say in the state court final on appeal might be rendered a total nobody because it had no jurisdiction whatsoever in this case i know you've got language that says grant the writ and either free the man or give me a new trial but i don't know if you have any language vacating the judgment and in its entirety show me where it is there are so many cases i could have forgotten that that was actually an order that was issued by the federal district court and it's a involuntary and he was denied is from random rights we damaged it and found that the flames were without merit and then our outcome was get to and that is even if you accept the proposition that all the technical requirements are met here you then get to the second requirement of california law which is that the application of the doctrine comport with fairness and sound public policy and s in a case where the question is the voluntariness so the confession not so surely everybody involved in these various niches is such a total and extreme wire  that there's no way we can have any idea what the truth is or who's guilty or what they're guilty of my point judges i felt is not i'm not trying to predict i'm just going to say you have to this not just your guy making things up but everybody making things up false confession he's got a back room in a beauty parlor that has no back room that sort of thing you're just a never never land once you get into it perhaps perhaps so just myself but my point is that judge williams the trial judge didn't know any of that when he made the voluntariness determination and because he didn't know that you know that now and you can look back at sort of how voluntariness and false of your two very different things you can voluntarily tell people things that are absolutely far different question and i agree with that my point however is that if you're going to be making a decision as a as a finder of fact you should have as much information as you can available to you and judge williams when he made this ruling prior to trial did not have any of that evidence so it would not work there and the other point that i would make and i'm going to sit it out is that it would be very best public policy because it would mean that they get to dismiss this criminal case so he doesn't get a retrial and then they block his civil case that can't be fair if they've tried him we would have made it would you prefer that your client now be retried when you're on his lease a very very good the city attorney for absolutely i think the court has touched on a lot of the arguments that something there your argument in its full glory it strikes me as to be mistaken here's what i mean to say that once a state court decision as become final through direct appeal to race judicata effect through decision it was made in the total absence of jurisdiction here over the person or over the subject matter if a federal court subsequently decides that that was so such as the us supreme court  that's happened with california fairmount recently and such as on these extra territorial decisions and i think it seems to me that your adversary would have to be right under grain dealers that the decision is a literary good and nothing in it has any force whatsoever because it was rendered without jurisdiction and where is the line between that type of decision which really is a literary did under grain dealers and this decision or type of decision where you claim some things are still binding and fin criminal underlying criminal conviction was on specifically the issue that was at the heart of the civil case and that had to do with whether or not insurance covered a intentional act whether the criminal defendant had been acting in self defense so the court looking a grain dealers that in that circumstance behavior is the blitter rated the criminal judgment and i think obliterated was a poor choice of words based on the claim of a coerced confession but this court specifically said that it found no merit now counsel has pointed out that the issue before the court at that time was whether or not there should have been an evidentiary hearing on the pointing out is that to the extent that this court looked at the issue of the coercion of the confession it found no merit finding more at most s just dicta yes you know but it highlights the fact that in reverse different context so it's distinguishable and the argument that the city is making is that there is no bright line now you could look at it in the sense that a collateral attack does not automatically take away collateral stoppel and maybe you're looking under the fairness and public policy aspect when you say well because it's on the same issue then in this case yes it does wipe out that earlier ruling  fairness public policy exception address that this fairness public policy exception comes about most often in a situation where there really wasn't a fair hearing on the initial ruling you were rather then broadcasts over the the out the judgment itself so when we ask is it fair or not we don't ask is the conviction fair or not but we ask whether this ruling and the money was for no knowledge no evidence before it is far as i'm aware didn't even know there had been a forward to hearing so in just saying that it was going to reverse the denial of the motion to a man and allow the pla to proceed with the fifth amendment cause of action all the panel was saying was that he should be able to go back and bring his fifth amendment cause of action this court was certainly not holding that the city with the fluted from raising any applicable the fairness question does it go to the broader question of cause of action or does it go to the narrow question of the ruling against him on the convention the narrow issue of the ruling that's what i was trying to address  still been open at some point it's clearly final now and not subject to appeal since the dismissal of the cause of action and in terms of whether or not there could have been a retrial i consider a high puts it hypothetical situation where the prosecution chose to retry the case but not to use the confession so the issue of the voluntariness of the confession was never brought up again and rick and if the defendant the plaintiff's logic that the hay b s wiped out everything merely because if it had been retried he could have raised the confession the voluntariness of the confession at a retrial that can't be the attorney it was used in the filing of charges it was used at the preliminary hearing ok trial and until you've been infected after an unfair trial brady for example those causes that action happen to reason but under wallace the fourth amendment cause of action for example false arrest or unlawful search that accrues at the time that it happened because you haven't been convicted yet our argument is that the same analysis should apply to a fifth amendment cause of action because like the fourth amendment positive action it accrues prior to conviction  argument is that whether it's a fourth amendment or a fifth amendment or has a better federal court in federal court yeah whether it's a fourth amendment or fifth amendment cause of action because it accrues regardless of what happens down the line with a trial or conviction under action or the running of the statute of limitations but what if what his damages are the conviction i mean hexes you can't say that i was wrongfully convicted until they convictions overturned so one of the elements of such a case is my damages i was wrongfully convicted so why wouldn't hecht say well until you've suffered that damage with it was damaged by getting the conviction later reversed why why wouldn't that trigger the running even though i might have had an earlier i'm not alleging anything else heckman say well we don't know if it's wrong for or not until the convictions overturned if that made a difference then you would have you wouldn't have a clear rule as to when then the person could choose oh i missed the statue of limitations on  not the action so i'm going away into laughter and convicted and then claim only a conviction damages you would my case since there were no charges preferred it's pretty clear the statute started running when they beat him up for nothing happened after that but and judg case as something did happen after that you really couldn't tell whether it was right or wrong until the end of the story but the statute of limitations begins to run you may have to weigh those and you may not know the full extent  on tuesday but you feel fine and then you develop medical problems on saturday and the doctor says monday you've got a serious medical problems caused by the accident one element of the tort happened on tuesday the negligent collision but another element of the tort the damages didn't happen until saturday and weren't discovered till either saturday or monday so you any number of things you're caught the unless you're talking that a delayed discovery type of situation you had surgery and it seemed to go fine and it wasn't till two years later that you start to get symptoms that the factor would  situation of a car accident you know immediately that there was a tort in the situation of where you get beaten up by the police and forced to confess you know immediately even if you may not think you have damages yet and some hypothetical you know that until you have a plan so this room was that they were well if you're talking about a fourteenth amendment claim of unfair trial i'm actually now getting back to this case reverend wright and there is a distinction and the the plaintiff there was no claim that the plaintiffs fourteenth amendment fabrication of evidence cause of action with the on the statute of limitations but that part of action was basically decided against the plaintiffs in the in two different summary judgment motions require trial or conviction also accrues at the time that the plaintiff knows all the elements of his cause of action and thank you for your time has long expired him since monday if you went well beyond you may have one minute considerations first of all smith versus exxon mobil which is a state case they say yes serious of the proceeding is one of the requirements for the technical requirements and they say in that case it was satisfied but they still say that all overall it would decision for now come out with another decision and say guess what you can't do that now thank you counsel case to start you submitted we appreciate the arguments both parties and will take about a five minute break seven minutes