twin towers jail in downtown los angeles i'd like to begin with the beating claims i believe that the decision of the district court should be  because there was both a legal error and a failure improved by the defendant county of los angeles in this case there was no evidence whatsoever offered by the county in this motion for summary judgment with respect to the mono play arising out of the beating that mr zelaya took while he was confined in the jail forty facts were set forth in their separate statement not one of they have they allow it so it is the equivalent of a practice there is inaction and there is never any consequences for it happening and so it happens as a matter of routine so in short yes there is a practice that the deputies the people who are accused of sexual misconduct thank you that's i think that that at trial that is definitely true so i mean what seems to me that the interesting legal question here is the next on the on the state law question of the fact that you haven't actually identified the and that is not a requirement of california law in any way shape or food or i do believe that and i think that that the county now agrees that all there must be is evidence that a county employee or county agent acting within the clips and scope of their employment in fact inflicted the harm or committed the torque here and there was certainly plenty of evidence to find out who was involved in this is that accurate first of all that is accurate your honor the only thing i would add to that is that it was difficult to get the list and eventually eventually but at the conclusion of discovery so our hands were somewhat high by the their years of the counting but that as it may i mean  and a woman who was also hispanic so is that a reasonable inference from what he said that the guards who beat him were acting in the scope of their employment yes and and there was no challenge to any of that also we can look at the circumstances in which it occurred he was in the jail there was nobody else out there it was only these four people there were no ready else who could have inflicted the beating except in his testimony that he was beat it wasn't like he was beaten by some other prisoners or anything like that because un contradicted evidence was that he was there alone the other people who were getting their uniforms on that particular day were all gone they left him last everybody else had moved  not allow the amendment so sense that sufficiency of their evidence they were the ones who came in with misleading declarations that didn't address the entire circumstance here and some he said that also even if it was in his house he could have we don't even know if he could have gotten  if it was by consent or we want to speculate that they tricked him into coming outside of the house before they arrested him and not within the current leech all of that was within was was part of their burden to establish and they didn't do so it's fair to say the gist of your complaint is that they lacked probable cause given the contradictory statements of the victims and others yes  o establish probable cause no i do not agree with that i believe that when we're talking similar liability now require it is a jury question in the ninth circuit as to whether or not probable cause exists or whether or not a reasonable person reasonable police officer or all reasonable police officers in the case of qualified immunity would any or any reasonable police officer would find probable cause and one of the requirements of both under state law and federal law is the requirement i've been investigation  of law and that power will cause didn't exist because when you come to the scene and and your investigation reveals that the victim may not be worthy of belief and all of the everything that you develop as i will you thank you the individual tortfeasor must be named in order to establish vicarious liability munoz vs city of union city is the case on point and california law his clear it's really a due process issue for the entity defendant a good analogy would be a car accident where somebody was wearing a fed ex uniform gets into a car accident maybe they're on duty and maybe they're not but the bi curious liability standard in california is the capacity are you saying he actually had named names he had to do both usually i'm sorry he has to establish course and scope usually that is done by naming names absen secure facilities so you don't have people roaming around free who could launch an attack on the plaintive isn't it established sufficiently that these individuals w jail are all adjoined and so it is how many employees they are whether or not they're on duty or acting within the course and scope of their duty is an entirely different question that's why we have discovered and that's what the plaintiffs should have done to prove up a buy carry a five billet a claim because they didn't that's why the claim fails he says he tried to amend a complaint and why all seven of them isn't what it was trying to show i if my recollection yes and while it's not part of the appellate record i think the the goal was name them all and let the courts sort it out that that's improper under any i mean for whatever reason the court rejected that proposed amendment it did so and it's not on appeal here if not before the court even if he had that's not the proper way to sort out this question what the plaintiff wants to do is shift the burden and say the county should be responsible for proving my case for telling me who it was to name names and it's really not it's the plaintiff's burden to present competent unmissable evidence to make their case and they did not  my understanding is that there's actually a fair amount of case law that they don't have to name names and including some legislative history to and you know this was a very specific situation so why is it you know said should govern here and not the other cases states the general rule the exception would be the pereiras case or some exceptional circumstances where the plaintiffs can make a prime official showing or does make a showing a factual showing of both employment relationship and course and scope those specific elemental thing he at least made enough of a showing of employment relationship for summary judgment purposes and someone could infer that these people in in a police uniform in a jail i handing this person were probably doing so within their employment that city employment might be one question and also meant on that course and scope is an entirely different scenario there were only seven people that were actually working at that time all you have to do is take their depositions or even send a request for admission that your were you involved in an altercation with this individual that narrows it down there are tools available to do that to make that show i said no then one then you find out who it physically and what they were wearing and so on and the state comes back and says well there were seven possible people and all of them said into it that doesn't lead to a juvenile summary judgment anyway if they all denied they did it for they win at that point for denying they did it no doubt would be a different factual question and the issue would be there's a false assumption in place as reasoning that because there were only seven people on duty they must it must be within that subset that did this if they all were deposed and if they all said i had nothing to do with this it would be incumbent upon the plane to find out who did if the county's employees were did not do this alleged beating within the course and scope of their employment role as deputy sheriff they might very well have a claim against that individual but then the county has a very serious defense on vicarious liability grounds so why can't the county defend anyway why can't the county say you know we've talked all the anything else about the relationship between zero seven people and and that's the difference between unison you know if they were legit negligent trading right c n n know who was paid negligently trade to know what their training was this is an automatic vicarious liability right no the facts of munoz but it also states the law that to plead by kerry to prove vicarious liability you must name the individual morphy's or that's what that's munoz at five forty nine i'm eunice wasn't about it was about vicarious liability and specifically vicarious liability on your eight fifteen point too  right i mean i'm sorry i thought it was not go ahead and it talked specifically about this issue talking about why the person must be named because the trier of fact would need to determine the elements of vicarious liability both of them not just that they're wearing a county uniform but they were on duty if you had a road deputy that's the perfect example of why you cannot simply infer it here even though this is an interesting fact pattern where you have a secure facility and your honor's point is well taken that does piqued the interest from an academic point of view but realistically plaintiff hasn't didn't meet its burden and even if that weren't on the council consul judge gould if i get interject guards inside a secure jail that at least some of them are acting for the county as opposed to the idea is that there's a group of  matters respectfully because if that were the case if there were row deputies who on their own time were beating up sex offenders the county would not defend them that argued it would have the right not to defend them it may not have to defend them or indemnify them it could cross complaint against them the plaintiff would have there would have claims against them they are in a very different  scenario both substantively and procedurally from a deputy who was on duty wearing the wearing the county hat metaphorically and literally those are two very different  of them that they specifically did not commit a tort and therefore it must have been the other two and it was conceded in pereira's that those two were on duty police officers therefore there was sufficient evidence for the court there to affirm a by carious liability finding notwithstanding the fact that the warning lawyers were all exam found not that there was enough evidence against any different from this because here we cannot say that it was four of the seven we that that first step that first logical relation to present is not met we can say it was definitely for the seven plaintiffs even though he didn't do take his discovery and figure out who it was it was definitely four of the seven that's not the facts here but in that instance they you're saying you need just to defend yourself they defended themselves the the  ty they won i each of the four was held not liable because you couldn't prove that any one of them actually did it so if you defended yourself up to the hilt you still wouldn't be any better off because there could still be a finding that the court is is hitting home on the fact that this is a locked facility and what that it's a lot facility it makes it easier to say who was there and who wasn't there and actually would have made plaintiff's burden in discovery easier to find out who did this to him he didn't say what it meant and easier for him and by the way it was are that hard of putting our time at trial trying to prove that this happened when you don't know look did it but that is a nice problem in our initial disclosures we said seven people were working that day here's who they are figure out who did this to you we didn't actually say that but that's the inference of your initial disclosures not one deposition no written discovery what coordinated their actions then be done beating up the  why should why should we believe that happened it's a good question your honor and whether or not it was for rogue japanese or whether these were deputies that were on duty the fact that the plaintiffs didn't do anything to even draw that inference or submit evidence to make that showing is why summary judgment was properly granted for the county that's why because the question of a reasonable identity of the people who beat him and he can be believed in this case and we have a risk that he is to be believed with respect to the particular  specifically identify the people who are responsible in every situation and it's cited pres for that very proposition and it rejected categor