want to point out this little tidbit which i found a bit infuriating in the defendant's brief they describe the removal of these children as a temporary removal these children were separated from their parents for a period of time five days york minute ok so so i want to turn to the m s a issue because they say you know the argument that there's no that because it went to trial that them i say can't be ruled upon but brief one of the many problems that we have with how this trial progressed is the fact that the court would not allow us to have an instruction on the procedural due process and what i still don't understand how that makes your motion for summary judgment argument reviewable on appeal we've said any number of times that if a judge denies a motion for summary judgment we review the final judgment at trial if there wasn't sufficient evidence to go to the jury then you should win under rule fifty but we didn't we don't we never reviewed denials of motion for summary judgment is there any case in which we've ever done it this could be your st because they could be the st one in the entire country for any court but there's a reason why we don't do it we don't we now don't just have the summary judgment record we have the complete record at trial and understood but unfortunately this is one of the biggest this is in this case is what happened in this trial so initially but i think that's what you ought to be talking about it seems to me that if even if the judge should have granted summary judgment on the record as it stood at the time if the trial record et's call what happened at trial in orange the procedural due process claim was denied at trial therefore the jury did not hear it so you cannot say that on that trial record where they did not ever hear it but that judgment but what we're reviewing is the trial judges decision not to submit a procedure or due process claim to the jury and i understand this is normally a one way street but any doubts the court if i may choose not to answer that if in fact i prevail in the court that we should have had a procedure the process claim which by the way the model jury instructions were recently amended and now they have a very clear distinction about the substantial dupes of something of the process and this procedure the process claim i mean just recently was a bit of a shock to find it in them so these are two distinct claims so but with the court agree is there enough evidence in the record at the trial to substantiate a procedural due instruction because because we had a procedural due process claim what the from the very beginning of this case and that's why facts tell us the facts that support your procedural due process claim it children were taken and absence of an imminent risk of serious bodily injury when there was sufficient time to get a warrant and most importantly in this case there was obvious less intrusive means all of the alleged dangers of what do we do with the jury's factual finding with respect to the two officers on the scene instructed about what action circumstances were that existence that they did not act on reasonably well  e was set was told you should find but they were season reasonably unless you find their exigent circumstances known to the officers and then did a whole series of definitions i'm not going to read it and the jury finds as a matter of fact that there were existant circumstances no reason to read known to the officers would lead them to reasonably believe the children were in danger of imminent harm so if that if we credit that jury finding doesn't that mean your procedural due process claim goes away there is no jury finding in the way that the court just mentioned it there is that does not exist in this record it does not they were not given a jury instruction for procedure the facts not what i'm asking so let's see if we can try to are correct which doesn't say it right but this there is a special there was an instruction to the jury that said you should find that the children were taken unreasonably without a warrant unless you find that the finds that these two people did not violate the th the th amendment by acting and reasonably your procedural due process argument is that they should have gone and gotten a warrant st and the  not because the procedural due process claim is an independent claim on which they were not instructed except for the pairing of it with in the deliberate indifference standard and if you allow that then you're saying there is no distinction i agree with you there are two separate claims my put my question is if in fact existent circumstances existed that excused the officers from going to seek a warrant before seizing the analysis and wallace and rogers in which this court told everyone we have said this enough is that even if you had x is in circumstances imminent risk of serious bodily injury yeah i didn't have time to get a warrant even if all of that was true there's one final outlier and it's not an outlier because we're supposed to honor this fundamental family right and that is that there is a less intrusive means which in this case is as simple as hey let's go outside of the house let's go to your sister's house like mine suggested let's go across the street let's go to a hotel the house was cleaned up like that by two o'clock in the morning that night that is an extremely important pronk lest w just throw under the bus this fundamental right of familial association which least now we know because of all the press i knew with for years to literally physiological changes in children's brains that's why it's a fundamental association right actually was that before we knew that from a science standpoint so that's why your honor no there is still an independent procedural due process playing the jury did not rule on it it really wasn't presented to them  process argument by submitting an instruction and so we don't need to review your motion for summary judgment a man still i mean if i may have thirty seconds to say what i'm trying to say about that would you agree on that if you agree in the end hey you know you're right you should have had that right then that m s a needs to go back and be looked at because it wasn't so it wasn't for closed by the trial record well i don't i don't doubt that there's two separate issues you preserved your argument by submitting  instruction we have to decide whether or not on this record the judge should have given instruction it may be that her failure to do so was harmless error because of other findings the jury made that's that's why i was asking the nd question  some things i think personally they say that these are not intended to be a windfall for attorneys this is right in the record that i never have an agreement with my clients and my retainer agreement is where i never make more than th so perfectly lawful by the way in case it makes you wonder we checked it out with the bar so it's not going to be a windfall for me and it will help these two young men and hopefully this is reversed as a man and and judge have just gave you a little bit less based on whatever she reviewed and i'm and gave you maybe even a little less than yass for right she did indeed and we cut it down ourselves she did a lodestar pretty much where you're supposed to do it can you address for us because i think it's one of the compart to the case that i have some you you may you make a motion for a new trial and then she she grants a judgment in your favor and they they argue that that was incorrect that she shouldn't have granted a judgment in your favor in terms of saying that she did find to be the cause right so so tell me why she was correct in doing that well that situational injury is that is is injury i mean there's causation thing is constitutional rights violation is the injury so if so in other words their president united states some mythical president sits in the white house and conspires to deprive citizens of their civil rights and then t figure out in the absence of causation how do you have a constitutional injury if somebody does something but it doesn't hurt your client now judge has made a different finding judge have said it must have hurt your client because they wouldn't have gone ahead and seized the maps and so that that's a separate issue but you seem to be arguing that you don't even need to show causation i'm saying the judge help was right in saying that her actions and the other in table participants actions another rather plays the aspect of this court that action there in actions and their mistakes and their actions obviously caused the removal of the children that to me i don't i don't know how anyone could are going to church mouth to be to be precise only provision that's been in the law for a long time and you got that and we got that ok so why am i having a hard time understand why you're complaining about that part of it you just want more yeah i your just send if there's causation as a matter of law to get more than a dollar's damage even though the jury said otherwise that's correct that is correct but the children i don't know pulled crying and screaming from their parents it defies the facts well  outside the bathroom when you try to go to the bathroom they will break down and cry when you have to go to the store there's a new science and i'm sure this court probably knows a lot about it if not i'll be hearing about yours become more experts will be called into these cases to  as a matter of law that it's a little procedurally difficult and i was trying to figure out that's why i was asking questions about it is that procedurally correct can a judge do that i mean i would think that that would tend to  just can do everything but i mean i just as a matter of procedures and some judges think they can do everything and often do but the interesting thing about what you're asking that is that it seems like that would be a procedural due process violation because some of the able to argue that you didn't have a notice an opportunity to be heard that that was the are not now wait a minute now you both had a chance to go back to the jury and get the the verdict straight now you both asked her to make a decision you both wrote brief process at it as the two people on the scene you didn't violate the children's constitutional rights as to the supervisor they say you did but no causation and what judge hof was struggling with i think quite appropriately is how does one resolve those two verdicts are they just flatly inconsistent or is there a way to resolve i don't think there's a way to resolve them unless you slip into a coma even going to be on the ground then why didn't  asked the jury to do that either one of what why didn't we go back in after they got the verdict and you saw that it was inconsistent why didn't she ask them to go back and do it right because this wasn't a matter where we were going to get to go back to the jury in a full blown thing and try to correct the i mean are you saying that i would because this is my understanding i would now be able to call witnesses back when i would be able to put them on the stand because without that i got nothing yes you do out if you make the decision one way or another right greg now and so then you just figured you get a new trial no but let me be clear about that verdict form argument if you look at the top a verdict form to it says don't come here and enter this room well if you've already yeah right so you'd rather have your cake birdman is the but it's burden hand and as i just said to you i did not see that i would get to be able to put on here's the thing your honor so that verdict form you know hope for the jurors aren't watching it is a level of crazy the way that they handled that this case and that verdict form but without having the ability to go back and put on witnesses i felt like there was already so many cars that come off the track at that point by being denied my motion on the expert testimony by being denied my procedural due process claim by being denied letting the social workers say well you know and my feeling was this which is subjective the exact opposite of what every bit of law says so i had to counter all those plus you're asking to remember what happened a year and a half ago and i don't know what i had for dinner last night but those were thought processes that were going through our heads me and my child of just from a logistical standpoint when did you come into this case i mean there's a question about i'm not sure when you exactly you came into the case from from that day to the day that there was an application to withdraw the jumped on that ok something that so but it was late in the discovery it was late in the premise of us wanted to go it on his own to clarify when he failed to respond when he was pricey yes yes entirely and all there is wer say and we were plenty of time for a trial period time for a trial and it's a promise the st time the motion to withdraw the admissions appeared in front of the trial judge in relation to the trial in relation to the trial i know there was a motion brought to yes and as we argued in the brief hey even if you're not going to agree that all of them should have been withdrawn then these critical goes to the heart of the matter things you wouldn't let an expert testify about the ocean and then allowed this deal once he once he months louis missed the timeline and you're not represent lewis you're not in a position to ask the court to undo ring the bell so to speak only lewis can do that is that right that's jemison was not the actual or proximate cause of any constitutional violation that finding ended this case this isn't the case she hears it question we didn't get to ask you fred here they file a motion for a new trial at the end of everything and say look at the verdict the verdicts are against the weight of the evidence and judge huff plainly believes that because she grants a ja well but never rules on the new trial motion let's assume for a moment that just for purposes of discussion that she was incorrect in granting the yaml well we can get back to that later she never ruled j m a well i don't need to address that she said she also granted qualified immunity to the social worker rights but that doesn't help you on your middel claim it doesn't help on the well it depends on if the call my question is why shouldn't there's a there's a new trial motion out there that nobody ever addressed on its merits she they say we should get a new trial on everything because the jury verdicts are against the way to the evidence she says i'm i i'm not going to touch the jury verdicts as to the two people on the scene but as to the supervisor i do think the jury verdict was not only against the weight of the evidence i think the evidence compelled a contrary result so maybe show that object any object of reasonable worker would have removed under the circumstances of that war by finding that she found she said there was ample evidence of causation correct so much evidence of causation that i'm going to grant judgment as a matter of law and grant qualified immunity rights but qualified immunity aside because it's not it's not relevant to this question well you know actually i disagree i think it is relevant to the question in that if the grounds for granting a new trial are let's  evidence as to whether or not these workers were objective lee reasonable in the removal of exit in sea without a warrant then the virtue that the fact that she found an over eight pages of her order all of the reasons that did justify the removal not talking about the workers yes you're arguing in your briefs that you made a mistake by fine as a matter of law because the the jury verdicts are reconcilable which we can get to in a minute i'm saying let's assume you're right that they are reconcil doesn't don't don't they still get a shot at somebody and arguing that they're entitled to a new trial even if you're even if mr jemison isn't tied into immunity they would be entitled to try a case against the county would they not know your honor because and that's i think independent of the causation and if we set aside and we leave qualified to meet any place on the clearly established problem and you get to mono on the record before the jury the district court and which would be the exact same record it is if it excuse me if it was retried as a matter of law independently they could not they did not all of the requisite elements of the supreme court set forth for a failure to train liabilities it would be pointless to remain back for a new trial when as a legal matter there is no no did anybody ever rule on that seat at the end of the day the judge left in place the two dollars award against the county since she found that m entitle to qualified immunity she must have believed that there was a claim against the county that survived even if the end to even if the individual workers were not were not liable kirk you know that is what she believed but the argument on our most so she must have found there was sufficient evidence on them and now claim to go to the jury well if the court looks at the district court's order on that specific section the failure to train she actually does not address all of the elements that are as a matter of law to find failure to train as this court's aware even in kirkpatrick recently and on one panel show that liability for failing to train is very rare and that deliberate indifference is a strict standard that requires actual or constructive notice a faulty training program and the reason for that is in order for a county to say hey i'm choosing between two options i have my workers out there violating rights are causing problems but i'm going to try to blind i they would have to be aware that there is a problem out there that pla put forth zero evidence of not even one other situation where there was even a lawsuit alleging that a child was removed incorrectly prior to two thousand and eleven because of anything to do with marijuana and therefore there was no notice for the county th or now because to this date there isn't any evidence that there's any jew doesn't see prior cases prior cases are relevant to the qualified immunity analysis they don't they don't they don't prevent the absence of clearly established law doesn't never had a chance to determine whether in light of all those arguments she should have just started all over again and granted a new trial why don't we send it back to her and say you have you want to rule on whether or not alternatively you would grant a new trial normally would you grade a j m a well you make an alternative ruling of a conditional new trial and that ruling is subject to a lot of deference by our court why shouldn't we just say judge if you you left out part of this the individual workers or rabelais correct and then so that allowed her to rule on and assess the evidence for the failure to train verdict against the county and based on the record that the district court had this report found that it was supported by substantial evidence by the verdict and therefore she denied our motion for judgment as i said how do we review her conclusion then that there was sufficient evidence to support the verdict against the county independent of any that juries find is not contrary to the clear weight of the evidence then further she says jemison testified she was responsible for supervising baxter and can terrorize and it was ultimately her decision to remove the was fine and reversing causation she would then four was allowed to weigh the evidence or review the evidence or substantial evidence to support the failure to train verdict i think independent of that but then there's also the issue that we disagree that she shouldn't even got there but addressing what i believe is the question about if were just looking at whether her review of substantial evidence supports a feeling to train verdict  on the question she said look the jury found that your client was generous and acted on reasonably she didn't get sufficient information before authorizing the war with seizure i understand why the jury said i'm not going to put liability and push looks on the scene they acted reasonably they reported to their boss and their boss said doing so i'm not going to hold them liable but their boss should have asked more questions or got more information and explore halves so she acted on reasonably and then the jury for some reason says but that didn't cause the seizure of the children and judge huff says quite reasonably ok martin it's of course what caused the seizure of the children nobody thinks the guys on the scene would have seized the children had the bar said don't do it yet and so that's what prompts judge have to act and she can't play that she recites the facts and she says there must be if there's a if there must be causation and so that's what's giving us trouble with this case isn't she right if in fact there was a constitutional violation by mr emerson most didn't necessarily cause the seizure which you know i think  collapsing the two and analyzing analyzing it as if it was a sense a general verdict form where they collapsed you created a concert you need a constitutional violation because you cause x in this case jury instruction number fourteen told the jury that they were required to meet all elements before they could find a constitutional deprivation and i did then the constitutional deprivation by mr imus they did not your honor they found that she acted in reasonably in actions on that day in for the exact same reasons that the evidence that was supporting the verdict against actual ground workers that they were the children were in a home that was risk of exploding due to the butane hash oil extraction process the c o two tanks that could have  at a poisonous or anesthetic to the children the fact that there was really potent t h c littered throughout the house or at any given moment a trigger for your wife attempt at two people at the house to make the decision to correct but there's also evidence that the jury could have found that the substantial factor in their removal was the parent's own conduct and putting these kids at risk would have found lots of things we were trying to reconcile all these verdicts the easy way for me to reconcile with is to say look are trying to figure out whether somebody acted and reasonably that's really the instruction did they acted reasonably in doing something and if i'm a juror i look at these social workers and i say that they confront what looks like a dangerous situation and they call their boss and they say boss what should we do and she says take the children out i understand why no jurors are going to hold the social workers liable under that circumstance they did the reasonable thing they called their superior but the jury could say but you know something she was and reasonable she didn't ask enough questions or give them enough for thirty years so why don't those those are those strikes me as perfectly reconcilable once having found that she acted reasonably right judge h i'm sort of mystified as why that then there was no causation because i think the law of the circuit is that when there's a jury verdict in favor of a social worker or entity x even employee they're entitled to have the evidence viewed in the light most favorable to them resolving conflicts in their favor and i think reviewing this evidence you could also say that she may have asked more questions you may have gone out to sea to the scene to observe the scene on her own but at the end of the day they did not find her to be the cause of causation that she caused an injury so when where this court is required to view all reasonable inferences a lot in the favor of the social workers and it's more than reasonable to say she could have done more in her actions that day but at the end of the day she was not the substantial factor in why these kids are removed it was a parent's conduct and putting these kids at severe risk by having them live in a hash oil lab that it could explode at any point in time ok so now you've reconciled the two verdicts my question still w doesn't the judge half at least get to decide whether or not she thinks a new trial is required because the verdict is against the weight of the evidence she never made that decision she made and reversing cause ation she made the decision that the they could have found something i should have found something else that's not what court is supposed to do in weighing a jury verdict but again if if she ruled on that and we all agree for her can see for argument's sake that we leave in place violated the constitutional rights she did rule independently of all that as a matter of law that the evidence supported a judgment against the county on a failure to train and that and that was an error because there is absolutely no evidence to meet the elements of a failure to train in that very rare circumstance that the supreme court has said should really be granted in fact our case is almost exactly like the case and connick where the supreme court held that that not not train on brady violations but that because they received general legal training having very discrete types of training isn't enough to reach that level of severe notice and deliber indifference in our case there was plenty of evidence that the social workers attend an eight to ten social week social worker academy where they receive edges and see and warrant training they have yearly training by county council monthly training by a regional academy and the issue wasn't that where there was any evidence that they didn't get exigency training or that they couldn't get warrants they could the issue was whether they didn't get enough training on a very discrete issue like medical marijuana but that doesn't like the case and chronic that doesn't assume that specific subset of discrete type of training is not the level that's required under the supreme court to find this rare cause of action can you help me out with a jury verdict is there a jury separate jury verdict with respect to failure to trade i'm looking at the very thing about the claims about against she you know and she also claims and a lack of medical marijuana training or teach the extraction training well yeah yeah well i wonder what it essentially found the jury found that answer that question yes correct but the district court was then required as a matter of law to review required your argument is that the jury finding was there wasn't sufficient evidence to go to the jury on that issue correct and if there was sufficient evidence to go to the jury and issue if we conclude that there was then the then the if the jury finding only on the mound l but yes because if the jury finding stands on the fact that nobody violated their constitutional rights we don't get to the more not very addicted is basically surplusage and should be stricken because they're essentially and can not inconsistent their just non viable findings because they were expressly told to stop after finding that none of the three workers violated the constitutional rights of the family and in fact counsel i think your honor asked a question to  counsel about the cause ation and how how that wouldn't be required an element that had to be proven when in fact it was counsel's own verdict form or jury instruction twenty two on position that was adopted by the court and nearly identical to the one that was given by the jury that said that they needed to prove causation to find a constitutional violation and planes also agreed to question to on the verdict form requiring causation so all of the parties were well aware that all of the elements had to be met in order to actually have a violation in this case and therefore the district court who took it upon herself to reverse the causation based on what could have possibly an alternative conclusion is not the standard because as noted before they could have also said hey she could have done a couple more things that day but at the end of the day these kids were properly removed because if any of them point they could stick their finger in hash oil these are two and four year olds and ingest it and be poisoned and up in the hospital there was marijuana in an ice cream bucket behind a kick out bar are all in places where young children are going to be prone to access or be confused and at any moment that could happen and i suppose so given that that finding was reversed and properly and all of the parties agree that it was a necessary element before a violation confuse the jury of course it did it would confuse many jurists would be confused because not everybody is not a lot of these cases compared to the civil rights cases that are on the court's docket so on any given day in this the county repeatedly in their briefing and here now keeps trying to pigeonhole it as there's no sign that there isn't specific training or that specific training the lack of it on marijuana causes violation well   the p m k mr phillips but in documents that they don't get it that they do not have a grasp of the law in wallace the law in rogers the law and maybe they don't have it they  have it's all over the board and jemison herself never couldn't name a single constitutional amendment had anything to do with her work so this is it almost is a complete failure of training it's certainly inadequate training and it certainly when the compassion use that comes around it it's a situation where you're going to have these kinds of consequences and one last thing the courts failure to allow that grand jury report to come in is another of these just overarching things that affected the whole trial and yet it was spot on and the behaviors and the disregard that they used in the attorneys the argument at the motion hearing basically saying essentially we're going to keep doing what we're doing a lot of that could have been stopped if the court would have allowed the evidence in which  a three is presumptively comes in to evidence they had to argue was untrustworthy and they didn't we would have been able to show to this jury that this county of san diego they don't care the compassionate use act had been around at that point for like ten years and they had and the county was just didn't care unlike all of the other cities in the county they had all done something so i asked the court to and maybe the court does recognize this case out of a lot of and in the very least not stirred things as they are at the most i would like you to allow us to go back to the jury and damages for the children that's my question do you want us to affirm the district judge or do you want to do trial i would like tell me understand if you have that choice new trial or what you've got so far what are your i'm going to take the new trial ok but i'm also going to hope that