[00:00:01] Speaker 03:
Okay, Ms.

[00:00:02] Speaker 03:
Bach, please proceed.

[00:00:03] Speaker 04:
Good morning, Your Honors.

[00:00:05] Speaker 04:
Blythe Bach, on behalf of the City of Los Angeles, I acknowledge that this is a tough appeal.

[00:00:12] Speaker 04:
I get that, because I understand that this is a discretionary ruling that is normally not reversed, but I think that this is a very... Can you speak up just a little bit?

[00:00:20] Speaker 03:
Speak up?

[00:00:21] Speaker 03:
Yeah, please a little bit.

[00:00:22] Speaker 03:
I'm rarely asked that.

[00:00:23] Speaker 03:
I know.

[00:00:23] Speaker 03:
Well, this time we are.

[00:00:25] Speaker 04:
Okay.

[00:00:26] Speaker 04:
My voice is usually very loud.

[00:00:27] Speaker 04:
I actually try to make it a little bit more quiet, so...

[00:00:31] Speaker 03:
I think when this room was set up, they didn't do an audible test.

[00:00:36] Speaker 03:
OK.

[00:00:37] Speaker 03:
All right, I'll go to my.

[00:00:38] Speaker 03:
Put it in the middle somewhere and we're good.

[00:00:41] Speaker 04:
Well, I think that this is a very unusual case, because to me, the most dispositive moment is the Staples video at 907.51.

[00:00:52] Speaker 04:
It's in my reply brief at page 27, because it's at that moment that we see Marikwein

[00:00:59] Speaker 04:
happily walking and chatting with her friends.

[00:01:03] Speaker 04:
And that moment is more than two, almost three minutes after Rico's shot.

[00:01:11] Speaker 05:
But doesn't, your argument seems to depend on us agreeing that Rule 60B2 allows the district court to set aside the judgment if there's conclusive evidence, sort of a conclusive evidence exception, which you're arguing that this video shows she couldn't have been shot at the time she alleged she was walking along.

[00:01:32] Speaker 05:
But there's nothing in the rule that says that.

[00:01:34] Speaker 05:
Is there anything in the text of the rule from which we conclude there's a conclusive evidence exception?

[00:01:40] Speaker 04:
There is not, and that's why I'm relying on the Farrell case.

[00:01:44] Speaker 04:
And the Farrell case has simply not been applied in the Ninth Circuit.

[00:01:47] Speaker 04:
This is the chance.

[00:01:48] Speaker 05:
Well, didn't Farrell turn on... It was vague as to which portion of Rule 60 was being invoked, and then the Fifth Circuit later concluded that it was 60b-5, because it was the satisfaction of a judgment, and then the Fifth Circuit then rejected the notion of a conclusive evidence instruction.

[00:02:08] Speaker 05:
I mean, I see your two cases are Wallace and Farrell, and both seem problematic given what those circuits did subsequently.

[00:02:17] Speaker 04:
And that is correct.

[00:02:18] Speaker 04:
And I know that Mariklin relies on that.

[00:02:20] Speaker 04:
But that is what the Fifth Circuit has done.

[00:02:23] Speaker 04:
We are the Ninth Circuit.

[00:02:25] Speaker 04:
And we can do whatever we want with Farrell.

[00:02:27] Speaker 05:
OK.

[00:02:28] Speaker 05:
So your argument is your two best cases are from the Fifth and the Seventh Circuit.

[00:02:32] Speaker 05:
Those circuits have not continued on that path.

[00:02:35] Speaker 05:
But never mind.

[00:02:35] Speaker 05:
It's not precedential.

[00:02:37] Speaker 05:
So non-precedential cases from other circuits, why are we even talking about them then?

[00:02:42] Speaker 05:
As I understand your position, because the Fifth Circuit said, no, that's 6db5.

[00:02:46] Speaker 05:
That's the fifth, we're the ninth.

[00:02:47] Speaker 05:
But where does that lead us with some Ninth Circuit authority or anything in the rule to suggest that there is this exception, that when the rule says you need to have reasonable diligence, that doesn't matter.

[00:02:59] Speaker 05:
As long as the evidence is really powerful, it's okay.

[00:03:02] Speaker 04:
Well, what those cases talk about is how the role of the courts is to do justice.

[00:03:07] Speaker 04:
and that it would not do justice if we have a judgment that we know is erroneous.

[00:03:12] Speaker 04:
Here we have a judgment that finds an individual officer liable for excessive force, and we have a video that shows that that same officer— But due diligence would have addressed this.

[00:03:24] Speaker 01:
I mean, I personally, if I were the trial judge, might have come out with a different decision in this case.

[00:03:30] Speaker 01:
But we're talking about discretionary call, and it could have been avoided had due diligence been followed.

[00:03:38] Speaker 04:
And that's true, and I'm certain that the trial attorneys are kicking themselves for not thinking about the Staples videos.

[00:03:46] Speaker 04:
I understand that.

[00:03:47] Speaker 04:
But that's where I cited those cases where they do talk about the due diligence, that when it comes to a matter of justice,

[00:03:53] Speaker 04:
and something that's so dispositive that the diligence factor is lessened.

[00:03:58] Speaker 05:
So do you, there's a couple of things about your briefing that are a little confusing to me.

[00:04:04] Speaker 05:
Did you agree in your reply brief that you're not challenging the district court's conclusion that the defendants did not use due diligence, that they could have in fact discovered the Staples Center video much earlier?

[00:04:17] Speaker 04:
I'm not challenging it and mostly I'm not challenging it because let's face it, there is a wealth of case law.

[00:04:24] Speaker 04:
that defers to district court rulings in these circumstances.

[00:04:28] Speaker 04:
And so it seems not worth it to me to try to challenge the due diligence finding.

[00:04:34] Speaker 04:
And that's where I started off saying I acknowledge is a difficult appeal.

[00:04:37] Speaker 05:
All right.

[00:04:38] Speaker 05:
So then the other issue is

[00:04:42] Speaker 05:
You make arguments about the retrial of just damages, but is that moot if we conclude that there is no conclusive evidence exception?

[00:04:54] Speaker 05:
Does your appeal hinge on the conclusive evidence exception and if we decide that against you, the rest of the issues go away or do you still think there are other issues that survive?

[00:05:04] Speaker 04:
You mean whether we would be happy with an order to have a new trial only limited to damages, or what are you asking?

[00:05:10] Speaker 05:
No, you're arguing that the new trial should have covered liability and damages, and you wanted the Staples video to be presented at the new trial.

[00:05:21] Speaker 05:
But if it were that the new trial was not going to include the Staples video because we don't find a conclusive evidence exception, you still want the new trial on damages?

[00:05:33] Speaker 05:
Well, what we want is a new trial on liability.

[00:05:35] Speaker 05:
Oh, I understand that, but that's not my question.

[00:05:38] Speaker 05:
So assuming, just assuming for the sake of our discussion, that we say we don't see a conclusive evidence exception in Rule 60B.2, and the district judge should not abuse this discretion in excluding this evidence.

[00:05:53] Speaker 05:
You have the second argument that the liability and the damages are so intertwined that we

[00:05:57] Speaker 05:
It should have been a whole new trial, not just damages.

[00:06:00] Speaker 05:
So assuming you lose on the first point, you still want the second trial just on damages?

[00:06:05] Speaker 05:
I want the second trial to be liability and damages.

[00:06:08] Speaker 05:
I know, but that's not my question.

[00:06:09] Speaker 05:
I understand that's what you want, but assuming it's not going to be liability, do you still think there's a live issue as to whether there should be a retrial on damages?

[00:06:17] Speaker 04:
Yes, and I'll tell you why, because the Staples video is not just germane to liability, although of course that's the most significant part of it.

[00:06:24] Speaker 04:
It also is germane to damages, because if you look at it, you see her getting trampled by the crowd, which was our theory in the trial that the

[00:06:34] Speaker 04:
cause of her injuries, because we don't dispute that she was injured, but our theory at trial was that those injuries arose because she was trampled by the crowd.

[00:06:42] Speaker 05:
But didn't her friend testify that she was trampled?

[00:06:45] Speaker 04:
Yes.

[00:06:45] Speaker 05:
I mean, that evidence was already in, so the jurors heard disputed testimony about whether she was shot with the rubber bullet or not, and then heard her friend say, overwhelmed them, they were trampled, so they already knew that.

[00:06:58] Speaker 05:
Right.

[00:06:59] Speaker 04:
And so to me, the damages would be significant for the Staples video, both because it shows her happily walking after he shot his launcher, and then her getting trampled by the crowd.

[00:07:12] Speaker 04:
So I think that that does go to damages.

[00:07:14] Speaker 03:
I want to clarify.

[00:07:16] Speaker 03:
My colleague has raised this question, but you seem to be dancing around.

[00:07:20] Speaker 03:
I want to be sure we understand each other.

[00:07:23] Speaker 03:
If I understand what you said, you

[00:07:26] Speaker 03:
conceded effectively before the trial judge and now to my colleague that the city didn't exercise due diligence.

[00:07:33] Speaker 03:
Had you done that, you would have discovered the video and might have changed everything.

[00:07:36] Speaker 03:
But you didn't.

[00:07:37] Speaker 03:
My colleague then asked you whether, in fact, in order to win on the liability issue, there has to be a conclusive evidence exception to 60B2.

[00:07:47] Speaker 03:
I think your answer to that is yes.

[00:07:50] Speaker 03:
Is that correct?

[00:07:50] Speaker 04:
It is, but let me also note that the case law, and I cited it in my brief, I believe it's at page 10, there's a wealth of case law that says no matter what subdivision was cited, that's not dispositive.

[00:08:04] Speaker 03:
And here, even if we want to go to... It's not dispositive because of justice, but as we all know, if you had an opportunity through due diligence to find this evidence, which anybody would have known around

[00:08:17] Speaker 03:
staple center lots of videos let's finish didn't do that that was your safety guard that was your justice if you will do that so here you have a situation you you're asking us in effect to change rule sixty b to adding conclusive evidence exception we don't have that the Ninth Circuit we don't adopt it

[00:08:37] Speaker 03:
I don't see how you can possibly get a new merits trial, a liability trial.

[00:08:42] Speaker 03:
What am I missing?

[00:08:42] Speaker 04:
Well, I think 60B5, which is what the Fifth Circuit has now said.

[00:08:47] Speaker 03:
We've got the Fifth Circuit.

[00:08:48] Speaker 03:
Let's talk about us.

[00:08:49] Speaker 04:
OK.

[00:08:50] Speaker 04:
So then I would say that the alternative is that Rule 60B5 has a much more expansive and doesn't have even the requirement of due diligence.

[00:09:01] Speaker 02:
I'm sorry, what?

[00:09:02] Speaker 02:
Did you argue 60B5, the district court?

[00:09:06] Speaker 03:
no and that's why i brought up those cases saying that it doesn't matter even if the wrong subdivision was cited in the trial court that the review let's talk about sixty b five how does that help you you didn't use due diligence given the sixty b two which is really the one that we're focused on has no conclusive evidence exception how does sixty b five help you because sixty b five is more of the discretionary all-encompassing rule in this case the district judge said nope sorry

[00:09:35] Speaker 03:
So how does that help you?

[00:09:36] Speaker 04:
Well, because the district court judge was specifically ruling on B-2.

[00:09:40] Speaker 03:
Right.

[00:09:40] Speaker 03:
And what I'm saying is that it's in the discretion of the judge.

[00:09:46] Speaker 03:
So since you didn't use due diligence, why would the district judge be inclined to help the city of Los Angeles, which regularly pays out massive awards in a situation like this?

[00:09:58] Speaker 04:
Well, because of the justice required by the revelation of this Staples video.

[00:10:04] Speaker 04:
Right?

[00:10:04] Speaker 04:
And so, and I do think that there's a lot of cases that talk about that, that in the end of the day, that is the courts, and particularly the reviewing court's job, is to make sure that the judge, judgment does reflect.

[00:10:17] Speaker 04:
I mean, you can lose a judgment, but this is, we lost a judgment, even though we have evidence showing.

[00:10:23] Speaker 03:
Are you, are you telling the court, you want all your eggs in the 60 v 5 basket?

[00:10:29] Speaker 03:
Is that right?

[00:10:31] Speaker 04:
No, my first egg is 60B2 and feral, even though feral was on just, it was strange the way feral only cites 60B that doesn't even cite a subdivision.

[00:10:43] Speaker 04:
But, so my position is that this new evidence that because it was so dispositive,

[00:10:49] Speaker 04:
that we should have been entitled to a new trial and alternatively that if we want to just even disregard the due diligence issue it would be B5 which is a much more expansive and allows the opportunity to do justice.

[00:11:05] Speaker 05:
So you're relying on

[00:11:06] Speaker 05:
this notion that the court should achieve justice as one of the goals emanating Rule 60.

[00:11:16] Speaker 05:
If this is going to be unjust, this is a reason why you could set aside a judgment.

[00:11:19] Speaker 05:
But doesn't Rule 60 also advance finality?

[00:11:24] Speaker 05:
There's no limiting principle on what you're arguing from what I can tell, that at any point, regardless of how the evidence comes to light, we should just invoke justice and set aside the judgment.

[00:11:36] Speaker 05:
But the rules seem to be a little more nuanced than that, in that certainly there's an interest in achieving justice.

[00:11:41] Speaker 05:
That's beyond dispute.

[00:11:42] Speaker 05:
But the rules have deadlines and qualifications and factors that need to be met, because finality is also a very important consideration.

[00:11:51] Speaker 05:
And so when the rule allows you to set aside a judgment for newly discovered evidence that could not have been discovered, that's justice.

[00:12:01] Speaker 05:
If there was a reason why you couldn't have found it, then it would be unfair to not let you bring that evidence forward and set aside the judgment.

[00:12:08] Speaker 05:
But you could have found it.

[00:12:09] Speaker 05:
You didn't.

[00:12:10] Speaker 05:
And so there are other remedies for the client.

[00:12:13] Speaker 05:
They have other remedies against their counsel, for example.

[00:12:16] Speaker 05:
So justice is not completely gone here.

[00:12:18] Speaker 05:
You just didn't meet due diligence, and then we have a competing concern of finality.

[00:12:26] Speaker 04:
Well, and I understand what you're saying, but I wouldn't be standing up here if it weren't the fact that this evidence is so dispositive and does literally call into question the validity of the judgment.

[00:12:38] Speaker 04:
And I just think that we cannot stand by and hold an individual liable for excessive force when we have a video showing he didn't use any force at all.

[00:12:50] Speaker 04:
And so the cases where they defer to the due diligence

[00:12:54] Speaker 04:
A lot, most of them are, they talk about how we're going to defer, we're going to defer the due diligence.

[00:13:02] Speaker 04:
And by the way, this evidence wasn't dispositive anyway.

[00:13:06] Speaker 04:
And that was the case in the Baxter case, for example, which both the district court case cited and Mariquin.

[00:13:12] Speaker 04:
And they declined to reverse, and they would defer to the due diligence finding.

[00:13:18] Speaker 04:
But they also said, and by the way, this evidence is not dispositive.

[00:13:22] Speaker 05:
But don't the plaintiffs dispute whether it's dispositive?

[00:13:27] Speaker 05:
There's like a splicing of body cam footage and staples video.

[00:13:30] Speaker 05:
And I thought I read in their brief that they dispute that.

[00:13:33] Speaker 05:
So it hasn't been established before the district court or before us that this is conclusive.

[00:13:38] Speaker 04:
Right, and that's where I tried in my reply to give you screenshots so you could literally see Mariquin walking after Rico fired his launcher.

[00:13:49] Speaker 05:
And this all depends on timing, right?

[00:13:52] Speaker 05:
So how do we know that these videos are all synced on the same clock?

[00:13:56] Speaker 04:
Well, that's the it is kind of frustrating because the body warm video is on a different time stamp than the staples video.

[00:14:03] Speaker 04:
But you can look at this consistently within the staples video is you see the launcher light up on the upper left corner of the screen.

[00:14:12] Speaker 04:
And I think it's at 905 21.

[00:14:17] Speaker 04:
And you see that, and that's him shooting.

[00:14:20] Speaker 04:
And we have testimony from her that Rico was the only one on the scene, and that's at page 21.

[00:14:28] Speaker 04:
We have Rico testifying that when he shot his launcher, it lit up.

[00:14:32] Speaker 04:
And we can see that on the Staples video.

[00:14:36] Speaker 04:
And then I think it's two minutes, like, you know, 40 seconds later, Mara Queen enters the area.

[00:14:44] Speaker 04:
And we see her with her friends.

[00:14:47] Speaker 04:
And so even within that Staples video, it's consistent.

[00:14:51] Speaker 04:
And we can see that she's entering the area where Rico was.

[00:14:55] Speaker 04:
Basically, the Staples video, it corroborates not only Rico's testimony, because remember, Rico testified that he fired the shot at this guy in the white hat that was to the left of the tree.

[00:15:08] Speaker 04:
And that guy in the left hat was not in the body warm video.

[00:15:11] Speaker 04:
Now we have the Staples video showing that guy in the white hat.

[00:15:15] Speaker 04:
It also corroborates Mara Queen's testimony, because Mara Queen testified that she didn't see Rico.

[00:15:22] Speaker 04:
And that makes sense that she didn't see him, because he was gone already.

[00:15:25] Speaker 04:
He had gotten into his police car.

[00:15:27] Speaker 04:
He had already done his shot.

[00:15:29] Speaker 04:
So she didn't even see him.

[00:15:30] Speaker 04:
So it corroborates her testimony and his.

[00:15:34] Speaker 04:
And so the city's position is we can't stand by and allow a judgment holding an individual liable for excessive force when we have video that shows he didn't use force at all.

[00:15:47] Speaker 03:
Thank you for your argument.

[00:15:49] Speaker 03:
Thank you.

[00:15:50] Speaker 03:
Let's hear from Mr. Stevens.

[00:15:58] Speaker 00:
Thank you, Your Honor.

[00:15:58] Speaker 00:
May it please the Court?

[00:15:59] Speaker 00:
My name is Stephen B. Stevens.

[00:16:00] Speaker 00:
I represent Ms.

[00:16:01] Speaker 00:
Marrakeen.

[00:16:04] Speaker 00:
I'd like to get right to the heart of two points.

[00:16:08] Speaker 00:
One, there is no due diligence, and there's no exception for supposedly conclusive evidence.

[00:16:14] Speaker 00:
And we do, in fact, dispute that the evidence is conclusive.

[00:16:17] Speaker 00:
But I'd like to get perhaps right to the point with one of the court's questions.

[00:16:21] Speaker 00:
And that is, as the city reads

[00:16:24] Speaker 00:
60B, it wipes out all of the subsections.

[00:16:30] Speaker 00:
It means, according to the city, that if they can come up with conclusive evidence, or what they claim to be conclusive evidence, that it doesn't really matter what subsection they throw it into.

[00:16:42] Speaker 00:
In fact, this argument is patent.

[00:16:46] Speaker 00:
If you take a look at their reply, for the first time in the reply, they argue 60B-6.

[00:16:54] Speaker 00:
60b6 says that the court may relieve a party from a final judgment for any other reason that justifies relief.

[00:17:05] Speaker 00:
The Ninth Circuit has not addressed that kind of argument under 60b6, but the Eleventh Circuit has in the United States versus real property and residence, quoting Moore's federal practice.

[00:17:19] Speaker 00:
60b6 is something that you use when

[00:17:24] Speaker 00:
The basis for your motion for relief does not fall within any of the other five categories.

[00:17:30] Speaker 00:
And Wright and Miller in federal practice say that the first five categories are mutually exclusive.

[00:17:38] Speaker 00:
You have to look to see what is the basis for relief.

[00:17:41] Speaker 00:
The basis for relief is that they say they have new evidence.

[00:17:46] Speaker 00:
If they have new evidence, they have to show due diligence.

[00:17:51] Speaker 00:
As the district court here found, there was an appalling lack of due diligence.

[00:17:55] Speaker 00:
They certainly knew about Staples Center videos.

[00:17:59] Speaker 00:
Mr. Rico certainly knew about it.

[00:18:01] Speaker 00:
He worked security there.

[00:18:02] Speaker 00:
As a matter of fact, if you look at his carefully crafted declaration, he doesn't say that he was unaware of the cameras.

[00:18:09] Speaker 00:
He says he was unaware of how long they keep the videos.

[00:18:16] Speaker 00:
As we pointed out in our brief, according to the police, they made about 76 arrests that day.

[00:18:23] Speaker 00:
I would think that they would be searching for video from any source to prosecute those people.

[00:18:28] Speaker 00:
They didn't search the cameras.

[00:18:31] Speaker 00:
And they have no excuse for failing to do that.

[00:18:34] Speaker 00:
And even today, we hear that we don't really need an excuse if we say that the videos are conclusive.

[00:18:44] Speaker 00:
Oh, they're not.

[00:18:45] Speaker 05:
If I understand their argument, we don't have to look to rule 60B2 and newly discovered evidence with due diligence.

[00:18:55] Speaker 05:
We could rely on 60B5.

[00:18:58] Speaker 05:
And there is some language, I think, in fairness, that supports what they're saying.

[00:19:02] Speaker 05:
I mean, the 60B5 says the judgment has been satisfied, released, or discharged.

[00:19:07] Speaker 05:
That's not the case here.

[00:19:08] Speaker 05:
It's based on an earlier judgment that has been reversed or vacated.

[00:19:12] Speaker 05:
That is also not the case.

[00:19:13] Speaker 05:
But then the last prong says, or applying it prospectively is no longer equitable.

[00:19:19] Speaker 05:
As I understand your argument, you're saying that that doesn't work because these subsections are distinct?

[00:19:28] Speaker 05:
Yes.

[00:19:28] Speaker 05:
Or is there any case law that tells us what applying it prospectively is no longer equitable means?

[00:19:35] Speaker 00:
I don't know if the Fifth Circuit has actually expanded on that.

[00:19:38] Speaker 00:
I mean, they were the ones who promulgated feral, and they're the ones who dialed it back as well.

[00:19:44] Speaker 00:
So I don't know if there's any authority on that specific point, Your Honor.

[00:19:49] Speaker 00:
But what we do know is that the courts have said, with regard to 60B6, their new argument in the reply is that that's a catch-all.

[00:20:00] Speaker 00:
for anything that doesn't come up on the first five.

[00:20:03] Speaker 00:
And it would do violence to the other sections to say that we don't need due diligence despite a rule that says it.

[00:20:15] Speaker 00:
And as one court has described it, these rules are not scrivened out lightly.

[00:20:27] Speaker 00:
They are thought up.

[00:20:29] Speaker 00:
Conferences, committees, they go to Congress.

[00:20:31] Speaker 00:
They are well thought out.

[00:20:34] Speaker 00:
And to start to engraft exceptions to them actually undermines their entire rulemaking progress.

[00:20:42] Speaker 01:
Would there be a sufficiently egregious case, though, where it would be an abuse of discretion?

[00:20:47] Speaker 01:
Let's say Ms.

[00:20:48] Speaker 01:
Marrakeen, after the trial, admitted, I made all of this up.

[00:20:54] Speaker 01:
and the other side didn't take her deposition, decided for whatever reason not to take her deposition, so didn't get her saying that under oath.

[00:21:02] Speaker 01:
And you really have a case where the plaintiff says, I made it up.

[00:21:06] Speaker 01:
Would that be enough?

[00:21:09] Speaker 00:
Your Honor, your question reminds me of what we learned in law school.

[00:21:14] Speaker 00:
Hard cases make bad law.

[00:21:18] Speaker 00:
I guess I have to say, nothing is 100%.

[00:21:21] Speaker 00:
Conceivably, there could be some egregious case where it would cry out for a retrial, a vacating of the judgment, or something like that.

[00:21:32] Speaker 01:
I don't want to say that our position is so extreme that we can exclude that possibility, but I would also say... Well, because this is not a perfect comparison, but in the area of the death penalty, if someone is actually innocent, it doesn't matter if there have been procedural defaults along the way, and we say, well, there are these rules.

[00:21:48] Speaker 01:
We matter if the person is factually, actually innocent.

[00:21:52] Speaker 00:
I agree, Your Honor, and maybe that is the best example of the extreme case.

[00:21:56] Speaker 00:
When someone's life is in line, we have to be a bit more flexible.

[00:22:01] Speaker 05:
But that person can't bring a malpractice claim against their attorney if they've been executed.

[00:22:08] Speaker 00:
That's absolutely correct.

[00:22:10] Speaker 05:
There are no remedies there if you're going to be executed, as opposed to there are remedies.

[00:22:14] Speaker 00:
Yes, I agree.

[00:22:15] Speaker 00:
And in fact, as I read their explanation for why

[00:22:20] Speaker 00:
for why they did not do what they did not do, my reaction was much the same way.

[00:22:26] Speaker 00:
They have a remedy.

[00:22:28] Speaker 00:
File a malpractice action against your council.

[00:22:32] Speaker 00:
I don't know what's happening behind the scenes between the city and its council.

[00:22:38] Speaker 00:
But it is very clear that, for whatever reason,

[00:22:43] Speaker 00:
Mr. Rico did not investigate, and he is actually part of the security team at Staples Center.

[00:22:50] Speaker 00:
He's the guy that they would have gone to in the first instance.

[00:22:53] Speaker 00:
There was no declaration from counsel, as a matter of fact.

[00:22:57] Speaker 00:
When I was reading the record, I thought it struck me as unusual.

[00:23:01] Speaker 00:
There is no declaration from the defense counsel stating that we didn't know anything about cameras or videos.

[00:23:10] Speaker 00:
Typically, when a party seeks to overturn a judgment with new evidence,

[00:23:17] Speaker 00:
just by California practice, for example, the attorney says, I didn't know this because this is what I did and I couldn't find any information on it.

[00:23:28] Speaker 00:
There is a showing by counsel as well as the client of due diligence.

[00:23:33] Speaker 00:
That's missing here.

[00:23:35] Speaker 00:
And that makes this distinct from, by the way, the Wallace case, where counsel put in a detailed declaration of what they did to find the witnesses from 35 years earlier.

[00:23:47] Speaker 03:
So bottom line, from your perspective, 60B2 includes a due diligence requirement.

[00:23:53] Speaker 03:
Yes, Your Honor.

[00:23:55] Speaker 03:
In this case, you've got an officer in the case Rico, who works there all the time.

[00:23:59] Speaker 03:
He knows perfectly well.

[00:24:01] Speaker 03:
There are video cameras all over the place.

[00:24:03] Speaker 00:
Yes, Your Honor.

[00:24:04] Speaker 03:
They didn't check it out.

[00:24:05] Speaker 03:
Counsel didn't say, we've done a diligence search.

[00:24:08] Speaker 03:
We don't find anything.

[00:24:11] Speaker 03:
We all know that in many, many instances, many types of law, that trial courts are called upon to make a determination whether the parties have acted with due diligence.

[00:24:22] Speaker 03:
That happens to Discovery all the time.

[00:24:25] Speaker 03:
It happens in decisions on the pleadings.

[00:24:30] Speaker 03:
You're saying this is really no different here.

[00:24:32] Speaker 03:
If they had acted with diligence, we wouldn't be here.

[00:24:36] Speaker 03:
There wouldn't be a problem.

[00:24:37] Speaker 03:
There would have at least been an argument whether the cameras were accurate and the like.

[00:24:41] Speaker 03:
But in this case, they didn't qualify.

[00:24:43] Speaker 03:
From your perspective, there is clearly no conclusive evidence exception to 60B2 and end of story.

[00:24:51] Speaker 03:
Is that your position?

[00:24:52] Speaker 00:
That is in a nutshell our position, Your Honor.

[00:24:56] Speaker 00:
I can go on at some length about why the evidence is not conclusive at all.

[00:25:04] Speaker 00:
Mr. Rico had three different stories about him shooting that 40-millimeter launcher.

[00:25:11] Speaker 00:
The first one is that he shot it at somebody who looked like he was throwing

[00:25:20] Speaker 00:
about to throw a bottle.

[00:25:22] Speaker 00:
The second one was that he shot it at someone who threw past tense a bottle.

[00:25:27] Speaker 00:
And then his third story was that the rubber bullet hit the wall behind that person.

[00:25:35] Speaker 00:
So he either was, oh, he also said that he saw the person react being hit.

[00:25:42] Speaker 00:
So Mr. Rico's testimony goes all over the place.

[00:25:46] Speaker 00:
The most recent iteration,

[00:25:47] Speaker 00:
in the motion to vacate or for relief was that the bullet hit the wall, which means that he missed.

[00:25:55] Speaker 00:
Well, it may not hit the wall, but it probably hit Miss Merican because she testified.

[00:26:01] Speaker 00:
She felt it being hit by a rubber bullet.

[00:26:05] Speaker 00:
She had immediate pain.

[00:26:07] Speaker 00:
Blood was gushing from her head.

[00:26:09] Speaker 00:
And she saw the rubber bullet on the ground.

[00:26:13] Speaker 00:
There's nothing inconsistent with her getting up and walking to get out of the area to say that, well, she was happy

[00:26:23] Speaker 00:
She was happily walking.

[00:26:24] Speaker 00:
I don't know where the defendants got that notion, but certainly being hit by the rubber bullet, being dazed for a while, disoriented, and then getting up with the help of a friend and trying to leave the area does not disprove conclusively that Mr. Rico shot, used that launcher, shot it, missed his target, and then hit.

[00:26:48] Speaker 05:
But doesn't Scott v. Harris say that when there is video evidence, the courts are entitled to view it, and they don't have to accept contrary testimony as establishment facts.

[00:26:59] Speaker 05:
So Ms.

[00:27:00] Speaker 05:
Marroquin testifies to all these things.

[00:27:01] Speaker 05:
But if there is actually a video that shows that's not how it happened, and if it had been introduced properly, maybe we wouldn't be here.

[00:27:10] Speaker 05:
But doesn't that mean that whatever she testified to doesn't really matter if there's video evidence?

[00:27:16] Speaker 00:
If there's video evidence that actually contradicts, but this doesn't actually contradict, because there's nothing inconsistent with being hit with the bullet off camera, and then later, two minutes later, being seen walking away from the area because she was hit.

[00:27:34] Speaker 00:
The defendants apparently expect that if she was hit, she'd be down on the ground and attended to by an ambulance crew.

[00:27:43] Speaker 00:
That didn't happen.

[00:27:43] Speaker 00:
And Miss American says, I was hit in the head,

[00:27:46] Speaker 00:
I was down.

[00:27:47] Speaker 00:
I got up with the help of my friend.

[00:27:50] Speaker 00:
And we left.

[00:27:52] Speaker 00:
And we tried to leave the area.

[00:27:53] Speaker 03:
So from your perspective, even if you look at the video, the fact is it is not conclusive evidence that your client was not hit by a rubber bullet.

[00:28:06] Speaker 03:
And it does not basically prove the case for them.

[00:28:11] Speaker 03:
So even if there were an exception,

[00:28:14] Speaker 03:
It doesn't necessarily decide this case from your perspective.

[00:28:18] Speaker 00:
Stated far more succinctly than I did, Your Honor, but that's exactly correct.

[00:28:24] Speaker 00:
I have some time left.

[00:28:25] Speaker 00:
I'm happy to entertain any questions.

[00:28:26] Speaker 03:
Questions by my colleagues?

[00:28:27] Speaker 05:
So I have a question on this, the second trial on damages.

[00:28:35] Speaker 05:
Is your position that the defendants waived their seventh amendment right because they moved for a new trial?

[00:28:43] Speaker 00:
They initially moved for JNOV, or in the alternative, a new trial on damages only.

[00:28:53] Speaker 00:
The court denied their JNOV motion.

[00:28:57] Speaker 00:
and granted their new trial on damages.

[00:29:01] Speaker 00:
And by the way, Ms.

[00:29:02] Speaker 00:
Merican also wanted the judgment amended to reflect the $1.5 million.

[00:29:09] Speaker 00:
In an alternative, a new trial on damages only, the court gave both parties what they wanted.

[00:29:14] Speaker 05:
Did anybody argue before the district judge that it should be a new trial and it should be inclusive of everything, liability and damages, because the events leading up to the allegation of liability are so intertwined with the damages that the jury needs to hear it as one?

[00:29:31] Speaker 00:
Was there any argument like that?

[00:29:32] Speaker 00:
No, Your Honor.

[00:29:33] Speaker 00:
The response was the exact opposite.

[00:29:37] Speaker 00:
As a matter of fact,

[00:29:39] Speaker 00:
To the jury, the defense counsel made a comment saying, we know she's injured.

[00:29:44] Speaker 00:
The question is, how badly?

[00:29:48] Speaker 00:
The question is, did we do it?

[00:29:50] Speaker 00:
We know she's injured.

[00:29:52] Speaker 00:
Her injury was testified to by a neurologist, a physician.

[00:29:57] Speaker 00:
By the way, the physician, when she gave a history,

[00:30:01] Speaker 00:
Within 12 hours after the event, she gave a history to the physician that she had been hit by a rubber bullet.

[00:30:08] Speaker 00:
That actually contradicted the defense counsel's argument to the jury saying, she only says a rubber bullet because she's seen the video multiple times.

[00:30:18] Speaker 00:
She herself, she's making it up.

[00:30:20] Speaker 00:
I mean, at its core, the defense doesn't come out and say it, but at its core, they're questioning her credibility.

[00:30:29] Speaker 00:
And the jury had all the evidence, had all the testimony, all of Mr. Rico's contradictory testimony, and it came to the correct conclusion.

[00:30:40] Speaker 00:
I have 18 seconds left.

[00:30:41] Speaker 03:
Other questions?

[00:30:43] Speaker 03:
I think, or was that?

[00:30:44] Speaker 00:
Thank you very much, Your Honor.

[00:30:46] Speaker 03:
Now, Ms.

[00:30:46] Speaker 03:
Bach used all her time.

[00:30:47] Speaker 03:
Let me ask my colleague, do either of you have additional questions of Ms.

[00:30:51] Speaker 03:
Bach?

[00:30:52] Speaker 03:
Shall we give her rebuttal time?

[00:30:58] Speaker 03:
I think we're going to thank you very much for your argument.

[00:31:02] Speaker 03:
I think we're in good shape.

[00:31:03] Speaker 03:
Thank you both for your argument.

[00:31:05] Speaker 03:
Thank you, Your Honors.

[00:31:06] Speaker 03:
The case of Marrakeen versus City of Los Angeles is submitted.