[00:00:01] Speaker 02:
And we will hear first from Mr. Sahat.

[00:00:05] Speaker 02:
Did I pronounce that correctly?

[00:00:06] Speaker 04:
Yes, you did, Your Honor.

[00:00:07] Speaker 04:
Good morning, Your Honor.

[00:00:09] Speaker 04:
You may proceed.

[00:00:10] Speaker 04:
Cameron Seahad on behalf of the appellant.

[00:00:13] Speaker 04:
May it please the court.

[00:00:15] Speaker 04:
This is a case involving deliberate indifference to Mr. Williams' serious medical conditions while he was incarcerated at the Twin Tower County Jail.

[00:00:25] Speaker 04:
Mr. Williams was arrested on June 16th for a parole violation

[00:00:30] Speaker 04:
And upon admission, medical staff noted him to be suffering from schizoaffective disorder, manic depression, and insomnia.

[00:00:38] Speaker 04:
A lung scan revealed no abnormalities of his lungs, and he was in good health in that regard.

[00:00:44] Speaker 04:
On June 17th, a bomber was noted, which is a behavioral observation mental health referral that a guard noted, him to act abnormally but consistent with the symptoms of his mental disorder.

[00:01:01] Speaker 04:
He was sent for a mental health evaluation and to be eventually housed in the mental health unit of the jail.

[00:01:09] Speaker 04:
August 21st, he was transferred into a dormitory style, housing 88 inmates in close proximity to one another in double bunks and with shared facilities, all against CDC guidelines at the time for COVID prevention and so forth.

[00:01:30] Speaker 04:
On August 23rd, Mr. Williams started to display symptoms of his illness, including shortness of breath.

[00:01:38] Speaker 04:
dizziness, lethargia, and chills, all of which were beginning to, had been informed of by himself and other inmates to the individuals in charge of his welfare, including custody and medical staff.

[00:01:57] Speaker 04:
This information came out of the coroner's investigator report, who noted that Mr. Williams started to show symptoms

[00:02:05] Speaker 04:
of respiratory distress as early as three weeks before he had passed away.

[00:02:16] Speaker 03:
Witnesses observed symptoms to be as late as two days before he passed others as late as three weeks in terms of the Deliberate indifference elements of some of the claims I think well, maybe you can frame it for us And what's the argument that it's deliberate indifference?

[00:02:35] Speaker 03:
Is it just the violation of the CD guidelines?

[00:02:38] Speaker 03:
Is it the placing him is it would it be placing others into the the

[00:02:43] Speaker 03:
group living arrangement is there anything in the complaint that deals with failure to intervene but in that three-week period I guess could you help us zero in on where we should find that pleaded sure yes it was in the complaint of certainly under the 14th amendment cause of action a claim what reasonable alternative measures were and

[00:03:06] Speaker 04:
Available to the jailers once they were a prize of these symptoms and what were those?

[00:03:12] Speaker 04:
Those would have been to Either isolate mister or Well, there's two part either take make arrangements not to congregate everyone in such close proximity to one another and

[00:03:27] Speaker 04:
And B, when he started to become symptomatic, to take him out into an infirmary or medical center.

[00:03:33] Speaker 03:
So as the first piece, does it matter under our deliberate indifference cases whether they actually had options available to them?

[00:03:42] Speaker 03:
I mean, this is still, you know, we're a year into the pandemic.

[00:03:47] Speaker 03:
Do you have to identify options that would have been available elsewhere?

[00:03:51] Speaker 04:
certainly to treat those symptoms as soon as they came up, the civilian segment had the benefit of

[00:03:58] Speaker 04:
you know, getting that early treatment, short of being hospitalized and placed on a ventilator.

[00:04:03] Speaker 04:
Mr. Williams did not even have that benefit whatsoever.

[00:04:05] Speaker 04:
When they found him, he was in cardiac arrest at the very tail end of his symptoms.

[00:04:10] Speaker 03:
But he didn't seek, he asked for a vaccine a second time, but he didn't seek treatment during this time.

[00:04:17] Speaker 03:
I guess, again, for deliberate indifference, it strikes me that there must be some

[00:04:23] Speaker 03:
Alternative right an option and I don't think just simply saying that the civilians were separately differently situated than detainees Does it?

[00:04:32] Speaker 04:
Where do you establish that in your going when you're so showing symptoms of shortness of breath?

[00:04:37] Speaker 04:
Medical staff has an obligation to care for you in a custody setting jailers inmates don't have the benefit of seeking their own treatment they're relying exclusively at the

[00:04:48] Speaker 02:
Does the complaint have any facts that support the elements of the underlying deliberate indifference claim?

[00:04:57] Speaker 02:
Because under Farmer, you have to show that the, when we're looking at the individuals, under Farmer, you have to show that the individual

[00:05:11] Speaker 02:
was aware of the risk and drew the inference that the course of conduct the individual took presented that risk.

[00:05:23] Speaker 02:
The complaint is totally devoid of facts.

[00:05:26] Speaker 02:
It just says that he started showing symptoms of COVID at some point and then at some point later he died.

[00:05:33] Speaker 02:
That doesn't say anything about whether

[00:05:35] Speaker 02:
it was made known to anyone that he had it.

[00:05:38] Speaker 02:
Did he say something about it?

[00:05:40] Speaker 02:
Did he complain about it?

[00:05:41] Speaker 02:
Did he say, I'm short of breath?

[00:05:44] Speaker 02:
There's nothing in the complaint that fills in that gap.

[00:05:47] Speaker 04:
Correct, Your Honor.

[00:05:48] Speaker 04:
And if I can add on to that, after Gordon vs. County of Orange, as a pretrial detainee,

[00:05:56] Speaker 04:
there's no longer a requirement to show the subjective element, which is what your honor was referencing in the farmer.

[00:06:02] Speaker 02:
Okay.

[00:06:02] Speaker 02:
Oh, so all right.

[00:06:04] Speaker 02:
So he's pretrial and so farmer doesn't apply and it's the objective standard.

[00:06:10] Speaker 04:
Right.

[00:06:10] Speaker 04:
Exactly.

[00:06:11] Speaker 04:
So it's more of an objective, unreasonable unless at that point.

[00:06:14] Speaker 04:
And he, and he did, he and at least other inmates did notify the jailers of his symptoms, aside from the fact that they would have

[00:06:21] Speaker 04:
likely been noticeable to everyone as he's having asphyxia or shortness of breath for this period of time.

[00:06:29] Speaker 00:
Before he was symptomatic, what relevance is it that he was offered and then declined a COVID vaccine to the portion of your claim that has to do with just the crowding?

[00:06:41] Speaker 04:
Certainly, Your Honor.

[00:06:42] Speaker 04:
So we would be questioning that refusal.

[00:06:46] Speaker 04:
Certainly, as there are protocols, anytime an inmate refuses medical care, there has to be some type of attestation or refusal form, and we didn't see any of that in the form.

[00:06:56] Speaker 04:
So one can perhaps think that this was a self-interested refusal.

[00:07:01] Speaker 04:
uh... that that was noted in the records uh... and uh... but for degrees of of safety and uh... there has to be a witness attesting to that refusal uh... in that there's none of that found so we're questioning that you know whether that even took place

[00:07:19] Speaker 03:
And that's somehow built into or should be built into our deliberate indifference framework for purposes of the claims?

[00:07:31] Speaker 04:
Correct, Your Honor.

[00:07:32] Speaker 04:
Not only did he ask for it, you know, presuming that he did ask for it based on the records and based on the witnesses' observation, he ended up passing away from

[00:07:43] Speaker 04:
acute respiratory distress syndrome, which is complications of the coronavirus ailment.

[00:07:50] Speaker 04:
And so the argument is that had he had the virus in time, then the symptoms would have been mitigated to an extent, preventing his death, aside from the fact that when he was symptomatic, beside from the fact that there was a refusal or not, having attended to him in a

[00:08:09] Speaker 03:
Prompt fashion would have mitigated the full extent of his symptom when when someone short Suffers from shortness of breath or their oxygen saturation is lowered and presumably all that would have been I mean certainly it appears that that Perhaps someone missed this and and should have caught it but we need a little bit more of that to establish either the pattern or practice or the failure to train or those those claims and what

[00:08:38] Speaker 03:
Where are you linking that to the county?

[00:08:41] Speaker 03:
I mean, there's, I guess, one way to look at it.

[00:08:44] Speaker 03:
What policy were they supposed to have in the middle of developing this developing public health phenomenon that would have, or did they have that demonstrated deliberate indifference?

[00:08:58] Speaker 04:
Well, we know that there was an early release mandate or a plan discharge issued to Mr. Williams indicating that he would be transferred to LA County USC.

[00:09:08] Speaker 04:
as a result of his comorbid condition, which was suffering from a mental illness along with the symptoms of his condition.

[00:09:17] Speaker 04:
So certainly transferring him to the facility early enough, which would have presumably had the right medical equipment to care for symptoms may have been one alternative.

[00:09:27] Speaker 04:
But aside from that, if an inmate is suffering from noticeable complaints of medical distress, it's upon the medical staff and the jailers to bring that to the medical staff's attention.

[00:09:38] Speaker 04:
to care for that and to attend to those conditions.

[00:09:42] Speaker 03:
So on the failure to train, are there any allegations about the county's policies with respect to medical care, with respect to the individual jailer's responsibilities, the health services?

[00:09:57] Speaker 04:
Right.

[00:09:57] Speaker 04:
So one thing we knew that

[00:09:59] Speaker 04:
based on the response to the man down after he had died, he was administered Narcan, which is completely unrelated to his condition, and Narcan is given for drug overdose.

[00:10:08] Speaker 04:
So one allegation was that if the county was trained well enough, they would have known that someone who was suffering shortness of breath is not given automatically Narcan, which is unrelated to his condition.

[00:10:19] Speaker 04:
And hence, if the staff were better trained, they would have

[00:10:22] Speaker 04:
address that in a different fashion.

[00:10:24] Speaker 03:
Are there any other instances in your allegations that this was a general practice for purposes of either the training or the policy claims?

[00:10:35] Speaker 04:
There wasn't, but certainly that's one.

[00:10:39] Speaker 04:
That's not an implausible practice.

[00:10:41] Speaker 04:
It is general.

[00:10:43] Speaker 04:
If they're treating everyone generally irrespective of the conditions, then they're not really trained to address the conditions to begin with.

[00:10:52] Speaker 04:
We believe that Mr., and Your Honor, I want to reserve some time for the dismissal of the doze, but I'll address that really quickly.

[00:11:01] Speaker 04:
Mr. Williams suffered from a comorbid condition of his mental illness that

[00:11:08] Speaker 04:
resulted in him having delusions, and him being unable to communicate his symptoms fully and adequately, and that was known to the county.

[00:11:16] Speaker 04:
And so by that fact, in the fact that they failed to attend to his symptoms, that's one of the basis for our failure to train an allegation under the Monal, which ultimately hinges on the 14th Amendment substantive due process, substantive claim, which I'd like to briefly address if it's okay.

[00:11:36] Speaker 04:
The district court ultimately dismissed the entire case, the mono-allegations, which all hinge on the 14th Amendment and the parental 14th Amendment due process clause, because those were not named.

[00:11:48] Speaker 04:
And plaintiffs' counsel have taken all the measures, all the efforts to be able to ascertain those individuals beforehand.

[00:11:54] Speaker 03:
What were those efforts?

[00:11:55] Speaker 03:
I didn't see any in the response to the auditorship clause.

[00:11:59] Speaker 04:
We had issued spoliation notices and public records requests to the county, both of which were rejected by the county.

[00:12:06] Speaker 04:
And that those documents would at least ascertain who these individual jailers were.

[00:12:11] Speaker 04:
The county's response was this was an investigation.

[00:12:15] Speaker 03:
So that didn't work.

[00:12:15] Speaker 03:
What what did you have planned that you might have told the court you were intending to do?

[00:12:21] Speaker 04:
We were planning on engaging in discovery and at least a written set of discovery early interrogatories that would ascertain who the guards were.

[00:12:30] Speaker 02:
I want to ask the following question about how that would work, because you've invoked case law where we have suggested that Doe's can be left in if discovery might reveal their identity.

[00:12:47] Speaker 02:
But suppose, and I'm just speaking hypothetically, we were to reverse as to the dismissal of the Doe's, but to affirm the dismissal of the claims against the county.

[00:13:00] Speaker 02:
How would discovery work on remand?

[00:13:03] Speaker 02:
Because the county would, in that hypothetical, not be a party.

[00:13:07] Speaker 02:
Would you be able to effectively serve discovery in a way that's going to identify the defendants?

[00:13:13] Speaker 02:
And how would that work?

[00:13:15] Speaker 04:
I believe so, Your Honor.

[00:13:16] Speaker 04:
The discovery would be limited to those core issues of ascertaining the dose.

[00:13:19] Speaker 04:
But the county has an obligation to defend.

[00:13:23] Speaker 04:
And under that obligation, presumably, they would present documentations

[00:13:29] Speaker 04:
in response to interrogatory on behalf of the named individuals.

[00:13:33] Speaker 02:
But interrogatories can only be given to parties and the county wouldn't be a party under the hypothetical I'm giving you.

[00:13:41] Speaker 04:
Correct.

[00:13:42] Speaker 04:
It's my understanding that the county would corroborate, collaborate with their employees in providing the responses to those interrogatories if I understand the court.

[00:13:52] Speaker 00:
Why would they have any obligation to respond as non-parties to the suit?

[00:13:58] Speaker 04:
Well, I think based on my experience having litigated with the county, there's a contractual obligations between employees in the county where the county would defend, would have a duty to defend and in that regard.

[00:14:12] Speaker 02:
The other problem is I'm not sure you could even serve interrogatories against the Doe's because

[00:14:19] Speaker 02:
No one becomes a party to litigation until the court acquires personal jurisdiction and personal jurisdiction is acquired by the service of process.

[00:14:30] Speaker 02:
And so it becomes sort of a chicken and egg problem.

[00:14:35] Speaker 02:
It's easy to see if the county is still in the case and the doughs are hanging there.

[00:14:41] Speaker 02:
Then you just serve discovery on the county.

[00:14:42] Speaker 02:
The county's a party.

[00:14:43] Speaker 02:
The county has to cough up the names.

[00:14:46] Speaker 02:
It can't hide behind investigation and defeat the CPRA request.

[00:14:54] Speaker 02:
But that wouldn't work under the hypothetical I'm giving you.

[00:14:57] Speaker 02:
So that's why I wanted to understand

[00:14:59] Speaker 02:
exactly how you're saying this would work.

[00:15:02] Speaker 04:
You know, I guess the easier way to go about that is just to keep the county in for the limited purposes of engaging the discovery.

[00:15:08] Speaker 02:
Now, do you have case authority that says that we can do that?

[00:15:12] Speaker 04:
Not often, unfortunately.

[00:15:14] Speaker 04:
But I think, you know, in terms of, and I'm sorry, I'm running out of time.

[00:15:19] Speaker 02:
If we're asking you questions, you can continue to answer.

[00:15:22] Speaker 04:
In terms of, in essence, allowing the discovery to be conducted under DOES,

[00:15:27] Speaker 04:
There would have to be some type of equitable remedy that would have to be, you know, determined perhaps.

[00:15:33] Speaker 04:
And I'd be happy to brief the court on that issue, supplementary briefing, but nothing off the top of my head that I can think of.

[00:15:40] Speaker 04:
Certainly there's enough, I believe, to allow the county to remain at least under the failure to train allegation, subclaim of the Monell based on the facts pled, at least based on the first amended complaint.

[00:15:54] Speaker 04:
The level of specificity may not need to be as high, but adequate enough to withstand a demur or survival for the First Amendment complaint to keep the county in.

[00:16:07] Speaker 04:
And so that's what I would suggest.

[00:16:09] Speaker 04:
Okay.

[00:16:10] Speaker 02:
All right.

[00:16:10] Speaker 02:
We've taken you over your time.

[00:16:12] Speaker 02:
I'll give you two minutes for rebuttal.

[00:16:14] Speaker 04:
Thank you.

[00:16:15] Speaker 02:
So we'll hear now from Mr. Bearer.

[00:16:18] Speaker 02:
Did I pronounce that correctly?

[00:16:20] Speaker 05:
Perfectly, Your Honor.

[00:16:21] Speaker 05:
May it please the court, Daniel Berrer for the County of Los Angeles, first addressing the dismissal under Rule 4M and 41B.

[00:16:32] Speaker 05:
The argument about the California Public Records Act case request being rejected, and that's why my colleague couldn't identify the doze before filing the suit, I have to point out that was pled

[00:16:49] Speaker 05:
in the original complaint and the First Amendment complaint, but it was not, as far as I can tell, in the plaintiff's response to the court's order to show cause on failure to serve the dose, and it's not even raised in the appellant's opening brief.

[00:17:08] Speaker 03:
Of course, that didn't appear to do the plaintiffs much good.

[00:17:13] Speaker 03:
What would you recommend they should have done prior to the order of show cause or said in the order of show cause to get discovery into who had the responsibility for checking on

[00:17:27] Speaker 05:
I think a California Public Records Act request is a good idea.

[00:17:32] Speaker 05:
We don't know what documents were asked for.

[00:17:34] Speaker 05:
The complaint and the first submitted complaint say they were documents related to the death.

[00:17:39] Speaker 05:
We don't know what the documents are.

[00:17:41] Speaker 05:
But if they had asked for all the records, the medical records, the correctional records, and then if the count he said, we're not going to produce them because they're the subject of an investigation and the police records or personnel records or whatever, the plaintiff has recourse.

[00:17:58] Speaker 05:
They could have petitioned the court under the California Public Records Act for a writ ordering the county to produce those records.

[00:18:06] Speaker 05:
Two, if the county said this is the subject of an ongoing investigation, they could have served another one and another one.

[00:18:14] Speaker 05:
They served their CPRA request in March of 2022, according to the First Amendment complaint.

[00:18:19] Speaker 05:
They filed suit in August of 2022.

[00:18:22] Speaker 05:
They got the order to show cause in January of 2023.

[00:18:28] Speaker 05:
There's no showing to the district court, which is the one that exercises its discretion to determine whether there is good cause shown for relieving them from not serving the dose within 90 days, or this court in the opening brief or in the record, as to all the measures that they took

[00:18:49] Speaker 05:
to find out who the doze were or some information on them.

[00:18:54] Speaker 03:
Do you know why the county, your client, didn't provide that information one way or the other?

[00:19:00] Speaker 05:
I am not privy to their decision except for what's alleged in the first amended complaint.

[00:19:04] Speaker 05:
They cited portions of the California Public Records Act case or Public Records Act concerning investigatory files and that it was the subject of an ongoing investigation.

[00:19:20] Speaker 02:
In the Central District of California, I think unlike the Northern District, when there's a motion to dismiss, the 26F is deferred and a discovery stay remains in place pending that motion, is that correct?

[00:19:35] Speaker 05:
I don't know that, Your Honor.

[00:19:36] Speaker 02:
I mean, he couldn't have served discovery, in other words, while this motion was pending.

[00:19:41] Speaker 02:
I know in the Northern District, they don't have a local rule that says the opposite.

[00:19:45] Speaker 02:
But in the Central District, he didn't have the opportunity to serve discovery while this motion was pending.

[00:19:52] Speaker 02:
Because if he did, then that would be an obvious factor that would weigh heavily in your favor.

[00:19:58] Speaker 02:
But my understanding of how things work there is that the discovery stay remains in place, the automatic one.

[00:20:07] Speaker 02:
until the 26th F Conference occurs.

[00:20:10] Speaker 05:
I believe that's true and that's the first thing I looked at when I got the case on appeal.

[00:20:14] Speaker 05:
But yes, I think your honor is correct.

[00:20:19] Speaker 02:
Our case law says you're not supposed to submit, to dismiss, those

[00:20:24] Speaker 02:
when we've pleaded allegations about unnamed person, you know the person exists, you know what they did, you've said what they did, but I don't know who they are, and we've said you shouldn't dismiss in those circumstances, but then what do we do with that?

[00:20:44] Speaker 02:
We send it back and then what?

[00:20:48] Speaker 05:
Well, the case where this court said you shouldn't dismiss in those circumstances, I believe it's the Wakefield versus Thompson case.

[00:20:56] Speaker 05:
And that's a case where the ground for dismissal was not Rule 4M, which was not or 41B.

[00:21:04] Speaker 05:
It was the fact that this pro se inmate had named only a dough.

[00:21:10] Speaker 05:
And the district court said, well, they read a previous Ninth Circuit case, Gillespie is saying doughs are disfavored in federal court.

[00:21:17] Speaker 05:
The Ninth Circuit said,

[00:21:19] Speaker 05:
Yeah, but you should allow the defendant to explore discovery before dismissing them unless another law applies.

[00:21:30] Speaker 05:
Here, other laws applied, 4M and 41B.

[00:21:38] Speaker 05:
And there really hasn't been a showing that the district court abused its discretion in concluding both of those grounds lay for dismissing the dose.

[00:21:49] Speaker 05:
I'm turning to the question of whether.

[00:21:52] Speaker 02:
I mean, if the rationale of Wakefield is that ordinarily, in response to the particular ground that was raised in Wakefield, but what we said was that if discovery would reveal their identities, they generally should not be dismissed, that rationale, even though it's in a different context, seems equally applicable to this context.

[00:22:18] Speaker 05:
It is a little bit different, Your Honor, in that although this was phrased broadly in Wakefield, the circumstances there was that it was a pro se inmate who was bringing this, well, I guess he was a former inmate because he had been released, and that was one of the grounds for the Wakefield case.

[00:22:38] Speaker 05:
Here, the plaintiffs were represented as early as February of 2022, a few months after the death, because they presented a timely claim or a timely relation to the death.

[00:22:53] Speaker 05:
um... to the county around that time according to the complaint and so council represented them all this time council fails to show that they have exhausted every means of investigation

[00:23:09] Speaker 05:
Uh, besides serving the spoliation notice and the cpra request, which apparently they didn't why isn't that enough?

[00:23:16] Speaker 03:
I mean, so they're they're they're they're counseled about what what good does that do them if the county is not Right, and I think it is in there The county does not provide the records that were requested upon request.

[00:23:26] Speaker 03:
We're not sure exactly how that played out

[00:23:29] Speaker 03:
Um, and because of the rules, um, we know that the plaintiffs can't get discovery after the county files a motion to dismiss.

[00:23:39] Speaker 03:
I mean, so what are we supposed to do in those cases?

[00:23:44] Speaker 05:
If they had made a showing to the district court that they had exhausted every other means, such as serving repeat CPRA requests, or pursuing the state court remedies for a response that the records are exempt, or interviewing witnesses.

[00:24:03] Speaker 03:
The county has conceded limited discovery for purposes of discovering the doze in this case.

[00:24:10] Speaker 03:
It strikes me.

[00:24:12] Speaker 03:
not a technical exhaustion requirement, they just have to give some reasons about the means they're pursuing.

[00:24:18] Speaker 03:
Would the county have been open to limited discovery to determine the dose?

[00:24:24] Speaker 05:
I don't know if they would have been open to that.

[00:24:26] Speaker 05:
As I mentioned, there are avenues outside of discovery by which they could have

[00:24:33] Speaker 05:
found out their information, and certainly there are Section 1983 lawsuits filed all the time arising out of inmates' deaths where there are individual defendants identified along with the county.

[00:24:49] Speaker 03:
But the plaintiff here is deceased, so how is the family supposed to know the names of any of the officers, particularly when the county refuses to provide any information about that?

[00:25:04] Speaker 05:
They refused to provide it at that time, which was, I believe the response to the first medical complaint was around May of 2022.

[00:25:11] Speaker 05:
They could have made additional CPRA requests.

[00:25:17] Speaker 05:
They could have done additional investigation.

[00:25:21] Speaker 05:
The resources of plaintiffs' firms in finding out who to sue are crucial to their doing business.

[00:25:30] Speaker 05:
discovery is an important means of obtaining information to put together a case, but to put together a complaint, usually by necessity, the investigation is done before it's filed.

[00:25:44] Speaker 05:
And there wasn't a showing here, certainly not to the district court and not even to this court, that there was the

[00:25:52] Speaker 05:
excusable neglect, which is the sine qua non of obtaining relief for an extension of time to serve defendants under Rule 4M, or that all of the Henderson elements of 41B favored keeping them in instead of dismissing them for failure to prosecute.

[00:26:16] Speaker 02:
What's the prejudice that justifies a 41B dismissal here?

[00:26:22] Speaker 05:
There was a finding of prejudice, and the court, I believe, said that it was a minimal showing of prejudice, just the prejudice of a case going on, and the longer into the case a dough is brought in.

[00:26:33] Speaker 02:
Correct.

[00:26:35] Speaker 02:
So it's fairly minimal.

[00:26:38] Speaker 02:
And here, there seems fairly good cause, and certainly excusable neglect.

[00:26:48] Speaker 02:
in failing to be able to identify these folks, the county knows the names.

[00:26:55] Speaker 02:
It's the only way it can be gotten.

[00:26:58] Speaker 02:
And he didn't have any ability to do anything because discovery is barred.

[00:27:06] Speaker 02:
And then the CPRA was rejected and it's straight in the complaint.

[00:27:12] Speaker 02:
How is that not good cause?

[00:27:15] Speaker 02:
Or, and how is it not a sufficient explanation that outweighs in the five-factor balancing the minimal prejudice?

[00:27:23] Speaker 05:
I would disagree, Your Honor, that there was excusable neglect here.

[00:27:26] Speaker 05:
The sine qua non of excusable neglect is diligence.

[00:27:30] Speaker 05:
And the diligence is not shown here, because all we have is one spoliation request.

[00:27:35] Speaker 02:
And one... We have the spoliation and the CPRA request.

[00:27:39] Speaker 02:
Yes.

[00:27:39] Speaker 02:
Now, maybe the excusable neglect comes in from the fact that

[00:27:42] Speaker 02:
It should have been in the response to the OSC.

[00:27:47] Speaker 02:
It's in the complaint and why it wasn't brought up as a justifying factor of the district, I don't know.

[00:27:55] Speaker 02:
So maybe that is where you have to look at excusable neglect, but I just don't understand how there isn't

[00:28:02] Speaker 02:
The idea of either good cause or excusable neglect is, is there justification?

[00:28:07] Speaker 02:
There certainly seems to be justification for having failed to do what is impossible in the current circumstances with Discovery Bar.

[00:28:17] Speaker 05:
Well, I would disagree, Your Honor, that it is impossible, because there are avenues that were not explored.

[00:28:23] Speaker 05:
And as long as those avenues remain out there.

[00:28:26] Speaker 02:
What are the avenues that were not explored?

[00:28:28] Speaker 05:
The avenues that were not explored were pursuing a repetition under the California Public Records Act to challenge the county's denial of these records or and or making another CPRA request later, perhaps after the investigation was over.

[00:28:45] Speaker 05:
sometime between the spring of 2022, when the CPRA request was rejected, and August 2022, when the complaint was filed, or even before January 2023, when the court issued its OSC.

[00:29:02] Speaker 05:
And also telling the court, we're pursuing all these avenues to try to find those does, so don't dismiss us yet, instead of merely saying we should have a chance to pursue discovery.

[00:29:15] Speaker 05:
which is what they said in the response to the OSC.

[00:29:21] Speaker 05:
I don't know if the court wants me to address the Menell issues.

[00:29:24] Speaker 05:
I agree with the questions and the points that the court has made that they just really haven't

[00:29:30] Speaker 05:
alleged the ingredients of a failure to train.

[00:29:34] Speaker 03:
Well, what else were they supposed to allege beyond the mass congregation at a time where there was COVID was rife through the system of detainees with mental health issues all in all in one place with no precautions other than it sounds like the offer of a vaccine.

[00:29:55] Speaker 05:
Well, they could have shown that there was in regard to a failure train that there was a pattern there was a

[00:30:00] Speaker 05:
pattern of inmates who suffered specifically because they didn't train on this particular thing that they said they should have trained on.

[00:30:09] Speaker 03:
The failure to train is challenging given that there's only this one incident.

[00:30:15] Speaker 03:
But in terms of a policy generally, that the county is aware that COVID is a significant problem among detainees.

[00:30:23] Speaker 05:
They could have alleged facts specifically that they

[00:30:28] Speaker 05:
had alternatives and that they chose as a policy or a custom or as a practice to put all of their inmates who had mental illness into this situation despite objectively the risk being

[00:30:49] Speaker 05:
to great.

[00:30:49] Speaker 03:
Well, your friend notes that they did, I mean, somewhat tragically in this case, they did screen him out for eventual move to another program.

[00:31:01] Speaker 03:
Yes.

[00:31:02] Speaker 03:
But that didn't appear to occur with at least sufficient urgency in this case.

[00:31:06] Speaker 05:
It didn't occur before.

[00:31:07] Speaker 05:
I believe that it was, the Boehmer was talking about what would happen upon his release, and these events happened before he was released.

[00:31:16] Speaker 05:
But in the meantime, they had to

[00:31:19] Speaker 05:
care for his mental illness, which they did by issuing him medications, examining him, putting him in a mental health examination cell, which is the opposite of deliberate indifference, which is knowing the risk and either doing nothing or pursuing a course of treatment, which is obviously not working.

[00:31:40] Speaker 05:
Unless there's any further questions, I'll submit.

[00:31:43] Speaker 02:
All right.

[00:31:43] Speaker 02:
Thank you, counsel.

[00:31:45] Speaker 02:
So we'll hear a rebuttal now from Mr. Sahand.

[00:31:49] Speaker 04:
Thank you, Your Honor.

[00:31:50] Speaker 04:
Just briefly, on the point that counsel suggested that every avenue of recourse should have been exhausted pre-litigation, I don't believe there's any authority that dictates that plaintiff's counsel should have submitted, you know, three, four, five, seven, six, whatever number of follow-ups on the CPRA.

[00:32:11] Speaker 04:
As we know from experience, these are oftentimes rejected.

[00:32:16] Speaker 04:
or requested to be extended at the detriment of a plaintiff's case.

[00:32:22] Speaker 03:
Did you make an attempt after, did you know that the investigation had a completion date certain and did you make an attempt?

[00:32:29] Speaker 03:
I did not.

[00:32:30] Speaker 03:
Did you check back and make an attempt after your first attempt?

[00:32:32] Speaker 04:
I did not have a completion date, but I did not attempt, I was intending on initiating suit so we can engage in discovery, so the evidence will not be stale in that regard.

[00:32:46] Speaker 04:
But I certainly did not do so because my intention was to obtain that information through discovery.

[00:32:53] Speaker 03:
How did you intend to get around the perhaps foreseeable Rule 26 problem that if there are a motion to dismiss, their discovery would be stayed?

[00:33:03] Speaker 04:
Well, oftentimes a protective order is entered into in federal cases that will allow the agency from disclosing that type of information.

[00:33:13] Speaker 02:
uh... did you ask the district court you can ask the district court to lift the discovery stay for particular purpose so why didn't you ask for the state to be lifted so that you could just for the limited purpose of serving interrogatories on the county while they're still here give me those names you could have done that i could have your honor i didn't know that was an option uh... i just

[00:33:41] Speaker 04:
From practice, I know that discovery doesn't initiate until the Rule 26 conference, like you indicated.

[00:33:47] Speaker 02:
But sometimes you have a need upfront, and you certainly did.

[00:33:50] Speaker 02:
And, you know, now the scenario is a lot more complicated if the county gets out of the case.

[00:33:59] Speaker 04:
Yes, I realize that.

[00:34:01] Speaker 04:
I just didn't know that those rules could be accepted because of my circumstance.

[00:34:06] Speaker 04:
And that's the reason I did not request the court to lift the discovery state.

[00:34:12] Speaker 04:
And besides that, if there are any other questions, Your Honor.

[00:34:16] Speaker ?:
OK.

[00:34:16] Speaker 02:
All right.

[00:34:17] Speaker 02:
Thank you, Counselor.

[00:34:18] Speaker 02:
Thank you, Your Honor.

[00:34:19] Speaker 02:
The case just argued will be submitted.

[00:34:21] Speaker 02:
And that concludes our calendar for this morning.

[00:34:40] Speaker 01:
Hear ye, hear ye.

[00:34:42] Speaker 01:
All persons having had business with the Honorable the United States Court of Appeals for the Ninth Circuit shall now depart for this court for this session.

[00:34:50] Speaker 01:
Stand adjourned.