[00:00:00] Speaker 02:
Please go ahead whenever you're ready.

[00:00:06] Speaker 03:
Good morning, Your Honors, and may it please the Court.

[00:00:14] Speaker 03:
I'm Jennifer Bagase for the plaintiff appellant, Maya Hendricks.

[00:00:19] Speaker 03:
I would like to reserve three minutes for rebuttal.

[00:00:22] Speaker 03:
The fundamental question before this Court is whether the court below erred in dismissing Ms.

[00:00:27] Speaker 03:
Hendricks' claims

[00:00:28] Speaker 03:
by drawing all inferences from the complaint in the city's favor rather than Ms.

[00:00:32] Speaker 03:
Hendricks' favor, as it should have.

[00:00:35] Speaker 03:
Specifically, the central question is whether the court ignored substantial portions of the 911 calls in which the dispatcher defendants acted to convince appellant's mother, Misty Hendricks, that a report that her daughter was kidnapped for ransom was a scam, that it fit the hallmarks of the common scam.

[00:00:54] Speaker 03:
They told her not to pay the ransom.

[00:00:56] Speaker 03:
They told her that this was a ploy for drug money.

[00:00:58] Speaker 03:
They told her that she could not trust her daughter and did not know her daughter.

[00:01:02] Speaker 02:
So you're addressing the dispatchers in the plural as a group and referring to them as they, but shouldn't the district court and shouldn't we consider the actions of each dispatcher separately?

[00:01:16] Speaker 03:
That is correct, Your Honor.

[00:01:17] Speaker 03:
So in this case, we're referring to the initial dispatcher, Marvin.

[00:01:22] Speaker 03:
Her liability gives rise to the duty that arises from the special relationship that was created when dispatcher Marvin convinced Ms.

[00:01:35] Speaker 03:
Hendricks that, Misty Hendricks, that her daughter's kidnapping was a scam, convinced her not to pay the ransom, and then the later dispatchers merely confirmed

[00:01:46] Speaker 03:
the policy of the city and of the city defendants to treat purported kidnappings as scams.

[00:01:54] Speaker 03:
if the locations were uncertain, if the person didn't have their phone, wasn't able to call on a whim.

[00:02:01] Speaker 03:
So those two dispatchers, and that is Dispatcher Davis and Orozco, are evidence of the city's policies of treating kidnapping reports as scams.

[00:02:15] Speaker 01:
So let's focus on number two, who I think it's Davis.

[00:02:18] Speaker 01:
Yes.

[00:02:20] Speaker 01:
Even if we accept your argument as to the first dispatcher, what about the second dispatcher?

[00:02:26] Speaker 01:
What about what she said indicates anything about a policy regarding kidnapping allegations or any sort of advice or direction about that?

[00:02:36] Speaker 03:
So Ms.

[00:02:37] Speaker 03:
Davis, who is the second dispatcher, stated that this wasn't an emergency that she would have to call, that Misty would have to call the non-emergency line.

[00:02:46] Speaker 03:
But then, dispatcher Orozco on the non-emergency line

[00:02:50] Speaker 03:
when discussing why Ms.

[00:02:52] Speaker 03:
Davis, why Dispatcher Davis had hung up, Dispatcher Orozco said, well, it's because these are common scams.

[00:03:01] Speaker 01:
Picking up Judge Beatty's point about looking at each individual dispatcher and whether each individual would have liability or the possibility of liability, can we, in considering Davis, think about Orozco's statements?

[00:03:18] Speaker 01:
Why would that inform

[00:03:20] Speaker 01:
Davis's liability, what Orozco is saying in terms of interpreting what Davis may or may not have said.

[00:03:25] Speaker 01:
Or I guess did say, we have the transcript, so we don't have to worry about what was actually said.

[00:03:29] Speaker 01:
So Orozco seems to sort of explain what Davis was saying or why she did what she did.

[00:03:38] Speaker 01:
But why does that inform Davis's liability?

[00:03:41] Speaker 03:
Because there appears to be no other plausible reason from that record as to why Dispatcher Davis

[00:03:49] Speaker 03:
would have said that this wasn't an emergency.

[00:03:54] Speaker 03:
Misty Hendricks was saying, how is this not an emergency?

[00:03:58] Speaker 03:
My daughter is kidnapped.

[00:03:59] Speaker 03:
She's going to be killed.

[00:04:00] Speaker 03:
She's being held for ransom.

[00:04:01] Speaker 03:
Why is this not a subject for 911?

[00:04:04] Speaker 03:
And Davis did respond, well, it's not an emergency.

[00:04:07] Speaker 01:
But your ultimate theory, right, isn't your ultimate theory that the dispatchers convinced mom not to pay the ransom, which puts daughter

[00:04:17] Speaker 01:
in worse danger than she already was in.

[00:04:21] Speaker 01:
That is correct.

[00:04:21] Speaker 01:
There's nothing that I can see that Davis says that says anything about paying the ransom, not paying the ransom, getting involved, not getting involved.

[00:04:30] Speaker 01:
She's just talking about how the city is viewing this situation.

[00:04:35] Speaker 03:
That is correct, Your Honor.

[00:04:37] Speaker 03:
And that is why our principal allegations center around the words of dispatcher Marvin.

[00:04:47] Speaker 03:
The physical abuse, the torture, the deprivation of rights accelerated, became worse, put Maya Hendrix in worse danger after Misty Hendrix did not pay the ransom after speaking multiple times to dispatcher Marvin.

[00:05:05] Speaker 03:
At that point, after that point, the kidnappers and Maya Hendrix called Misty and

[00:05:13] Speaker 03:
Misty could hear Maya being tortured in the background, and the kidnappers were angry, said, you are not taking this seriously.

[00:05:22] Speaker 03:
You have not paid the ransom.

[00:05:23] Speaker 03:
You're not taking this seriously.

[00:05:25] Speaker 03:
That is the tipping point.

[00:05:26] Speaker 03:
That is the point at which this went from she is kidnapped to now the danger has accelerated.

[00:05:33] Speaker 03:
Because Misty Hendrix was convinced enough to hold off paying the ransom, not to pay the ransom, the kidnappers accelerated their mistreatment of Maya Hendrix and went from simply holding her to physically assaulting her.

[00:05:49] Speaker 03:
So if nothing else, that escalation to physical assault was the result of that affirmative act by dispatcher Marvin to convince Misty Hendricks that the kidnapping was a scam to sow enough doubt in her mind to cause her to hold off paying the ransom.

[00:06:14] Speaker 03:
Your Honor, since you are familiar with the record,

[00:06:17] Speaker 03:
I won't belabor the elements of the record and the points in which Dispatcher Marvin called the kidnapping a scam, but I will point out that it was the first three minutes and 22 seconds of that call, Dispatcher Marvin was talking about how this was a common scam and gathering information about the kidnappers and about the call that seemed designed not to help, but designed

[00:06:46] Speaker 03:
to decide or judge, in her later words, whether this is true or not.

[00:06:51] Speaker 03:
It wasn't until four minutes in that she even asked for Maya Hendrix's name.

[00:06:55] Speaker 00:
If Marvin had not made those statements about, look, there's likelihood that this is a scam, if he hadn't, she hadn't said those things, but simply said, we can't help you, goodbye, would the outcome be different in your view?

[00:07:09] Speaker 03:
Sorry.

[00:07:10] Speaker 00:
So it wasn't the denial of relief, it was the persuasion that you think made matters worse.

[00:07:17] Speaker 03:
That is absolutely correct.

[00:07:18] Speaker 00:
If they had just denied, if they had said, we don't know that we can do anything, would that, is there any evidence of how that might have changed the outcome?

[00:07:28] Speaker 03:
Yes, Your Honor, as we've alleged in the complaint, even though Misty Hendricks did not have the money directly on her, her mother had a savings account for her cancer that could have been used to pay the ransom.

[00:07:44] Speaker 03:
She also was aware that as an adult with a job, she could have gone down the street to get a payday loan.

[00:07:49] Speaker 03:
No, she didn't have it on her.

[00:07:51] Speaker 03:
No, her mother didn't have it immediately.

[00:07:54] Speaker 03:
She kept saying to Maya and the kidnappers, oh, I'm trying to get it.

[00:08:00] Speaker 03:
But then she never actually did anything to get it.

[00:08:02] Speaker 03:
And I believe that we have alleged sufficient facts to show that without the interference of Dispatcher Marvin to convince Misty Hendrix that this wasn't real, or at least it was highly likely,

[00:08:14] Speaker 03:
that this wasn't real, that she would have taken those steps, she would have gone out, she would have got the money and got it to the kidnappers, and then they would not have become angered, said, you're not taking this seriously, and begun torturing Maya Hendricks.

[00:08:29] Speaker 00:
Does the dispatcher act at his or her peril when there's a request for an emergency help?

[00:08:36] Speaker 00:
If the dispatcher tries to tell the person calling that, look, there may be another

[00:08:43] Speaker 00:
more innocent explanation, don't have a heart attack about this yet.

[00:08:48] Speaker 00:
Let's think about it and see what else we can do.

[00:08:51] Speaker 00:
Anything like that is absolutely going to be, in your opinion, creating liability for the state.

[00:08:58] Speaker 03:
that would, if the dispatcher goes out of their way.

[00:09:03] Speaker 00:
Nothing about out of, we don't know whether they're out of their way or not.

[00:09:06] Speaker 00:
It seems to me like it's a response to a very anxious mother and you're saying any effort to calm the mother down or to say well maybe it's not as bad as you think it is, all of that's going to give rise to liability.

[00:09:24] Speaker 03:
Not any time, Your Honor.

[00:09:25] Speaker 03:
That's not what we're asserting here.

[00:09:27] Speaker 03:
I recognize that both the Special Relationship Doctrine and the State-Created Danger Doctrine are limited.

[00:09:33] Speaker 03:
And Your Honor, I would submit that these facts are quite unique, because the dispatcher, Dispatcher Marvin, was not merely trying to calm down Misty Hendricks, not trying to tell her that there might be an alternate explanation

[00:09:50] Speaker 03:
but in fact spent several minutes going through the facts, not only for the purposes of helping, but for the purpose of determining, as she said, I'm trying to judge, judge whether this is real or not.

[00:10:02] Speaker 03:
And then once Maya's history of drug use came into the conversation, then Marvin's, dispatcher Marvin's biases

[00:10:12] Speaker 03:
came into the conversation in which she said, once a person's on meth, you can't trust a thing she says.

[00:10:17] Speaker 00:
If Marvin had made one additional statement and said, look, there might be alternatives.

[00:10:22] Speaker 00:
I am not trying to persuade you to do one thing or another.

[00:10:24] Speaker 00:
That's your business, not mine.

[00:10:26] Speaker 00:
But just for your consideration, I'm going to try to explain some other possibilities.

[00:10:31] Speaker 00:
I want you to think about them.

[00:10:33] Speaker 00:
Would the outcome be different?

[00:10:35] Speaker 03:
Potentially, Your Honor.

[00:10:38] Speaker 00:
I'm just concerned about how dispatchers are going to read whatever we write here and how much it's going to restrict their ability to have meaningful dialogue with people in extremist situations.

[00:10:54] Speaker 03:
I understand, Your Honor, and that is a concern.

[00:10:56] Speaker 03:
Obviously, we want our dispatchers to be able to do as they see fit within reason and outside a situation involving gross negligence.

[00:11:04] Speaker 03:
Here we have a dispatcher who is using her bias against people who use drugs and people who struggle with addiction, and she is actively instructing Misty Hendricks, do not pay the ransom.

[00:11:18] Speaker 03:
You will enable her.

[00:11:19] Speaker 03:
If there had been some mitigating language like you suggest, I believe that would have been different.

[00:11:25] Speaker 00:
Speak briefly to whether the city has a policy of not intervening in missing people that are alleged to be held for hostage.

[00:11:43] Speaker 00:
I may have overstated that policy.

[00:11:45] Speaker 00:
What was the city policy?

[00:11:47] Speaker 03:
The city policy was a policy of treating kidnapping reports, hostage reports, as scams until and unless the victim's location could be ascertained.

[00:12:02] Speaker 03:
And that was pursuant.

[00:12:03] Speaker 00:
Or unless what?

[00:12:05] Speaker 03:
Unless the victim's location could be ascertained.

[00:12:10] Speaker 00:
That's almost an impossibility many times, isn't it?

[00:12:13] Speaker 00:
Well, exactly.

[00:12:14] Speaker 00:
If I were a kidnapper, the last thing I'd want to reveal would be the location.

[00:12:17] Speaker 03:
Which was my point exactly, Your Honor.

[00:12:20] Speaker 03:
I believe we alleged it in the Second Amendment complaint, but Ms.

[00:12:26] Speaker 03:
Cahill, who was acting on behalf of the city, was the chief of dispatch at the time, acknowledged that if there was no location, that this was not something that would be taken seriously and would be in conjunction with the statements of the dispatchers.

[00:12:44] Speaker 03:
This is going to be treated as a scam because they don't have a location.

[00:12:48] Speaker 00:
Thank you.

[00:12:49] Speaker 03:
Thank you, Your Honor.

[00:12:50] Speaker 03:
Quickly, I will reserve two minutes of my time for rebuttal, but I did want to address one brief point, which is the dismissal under Rule 41B for disobedience of a court order.

[00:13:00] Speaker 03:
In this case, that decision should be reversed for abuse of discretion.

[00:13:06] Speaker 03:
First of all, it was without prejudice, so it should not affect our ability to relitigate the issue if the court finds we have a colorable claim under federal law.

[00:13:14] Speaker 03:
Second, the cases that have held that a Rule 41B dismissal is appropriate where an amendment to a complaint was not made and a statement of intent not to amend was not filed.

[00:13:25] Speaker 03:
Those cases all involved mandatory orders where a person was required to file an amended complaint.

[00:13:32] Speaker 03:
In this case, it was plaintiff will have 30 days to file an amended complaint, not must file an amended complaint, as was the case in

[00:13:41] Speaker 03:
where the plaintiff even asked the court for more time to file the amended complaint and then didn't.

[00:13:47] Speaker 03:
That is all I have for now, Your Honors.

[00:13:49] Speaker 02:
Thank you.

[00:13:52] Speaker 02:
Ms.

[00:13:53] Speaker 02:
Plotkin-Wolfe.

[00:14:03] Speaker 04:
Good morning, Your Honors, and may it please the court.

[00:14:05] Speaker 04:
Stacy Plotkin-Wolfe on behalf of the appellees.

[00:14:08] Speaker 04:
the three 911 dispatchers, the dispatch administrator, the former San Diego chief of police, and the city of San Diego.

[00:14:17] Speaker 04:
We ask that the court affirm the district court's orders dismissing this case under Rule 12 and Rule 41B.

[00:14:25] Speaker 04:
The appellant failed to fulfill her burden to prove or plead, I should say, a plausible claim under Rule 12 for both the state-created danger doctrine and the state law

[00:14:38] Speaker 04:
a special relationship claim.

[00:14:43] Speaker 04:
Furthermore, she did not show that it was not within the court's discretion to dismiss the federal causes of action under Rule 41B.

[00:14:54] Speaker 04:
The crux of what Dispatcher Marvin told Mr. Hendricks can be found at ER 74, line 7 through 19 as follows.

[00:15:04] Speaker 04:
And you know, it may,

[00:15:07] Speaker 04:
will be that your daughter is in some sort of a difficult position, but you cannot help her.

[00:15:14] Speaker 04:
And I would almost guarantee if you manage to send her $2,500, they're going to call and ask for more.

[00:15:20] Speaker 04:
This is the way it always goes with these kind of things.

[00:15:24] Speaker 04:
So the best thing she can do is if she needs help to call 911.

[00:15:29] Speaker 04:
you know find out you know whatever she can do if we can get kind of a the neighborhood of where she's at or she can describe something but there's just there's no way to find her without some sort of an address

[00:15:42] Speaker 04:
and her phone can't be traced, so we don't even have a starting point.

[00:15:47] Speaker 04:
That was what the crux of the conversation Dispatcher Marvin had with Ms.

[00:15:52] Speaker 04:
Hendricks.

[00:15:53] Speaker 04:
Throughout the conversation, she was consistently asking her to provide some information to help the police start a search for her daughter.

[00:16:04] Speaker 04:
Misty Hendricks did not know her daughter's current home address.

[00:16:09] Speaker 04:
She did not know any of her friends or associates, phone numbers or locations.

[00:16:15] Speaker 04:
There was nowhere for the police to start.

[00:16:18] Speaker 04:
Now, while plaintiff makes a point, plaintiff appellant makes a point of saying that Ms.

[00:16:25] Speaker 04:
Marvin's quickly went into the scam issues and took too long to ask for any information with regard to

[00:16:34] Speaker 04:
Ms.

[00:16:35] Speaker 04:
Hendrix's information, she neglects to tell the court that during that time period she stayed on hold while Misty Hendrix spoke with her daughter and immediately asked if she was able to give her any more information about where her daughter was.

[00:16:49] Speaker 04:
She also doesn't tell the court that she put the information out on the radio to the officers.

[00:16:57] Speaker 04:
So it wasn't like they weren't looking for her, but they didn't have anywhere to start.

[00:17:02] Speaker 01:
I don't understand the plaintiff's argument or theory in this case to be that the, that, um, dispatcher Marvin or any of the others just failed to do their job at all.

[00:17:12] Speaker 01:
I think the argument is that things were said that convinced mom not to take action that may or may not have helped the daughter get out of a really terrible situation.

[00:17:24] Speaker 01:
And so on that, you know, focusing on that theory.

[00:17:29] Speaker 01:
In the transcript with our first dispatcher, we have, I mean, the things that you have described, they're there, of course.

[00:17:35] Speaker 01:
She's trying to figure out the location.

[00:17:36] Speaker 01:
She is trying to assist mom in figuring out the situation and get officers out there and they're running into roadblocks because we don't know where this girl is.

[00:17:45] Speaker 01:
But then she also says things like, don't enable her.

[00:17:48] Speaker 01:
And sending her money is just going to enable things.

[00:17:52] Speaker 01:
And that's a different step than a dispatcher, than I would expect a dispatcher to take.

[00:17:58] Speaker 01:
That seems to be sort of inserting herself and her opinions into this situation and giving advice about what moms should do or not do in this situation.

[00:18:07] Speaker 01:
And why isn't that a fair reading of that?

[00:18:10] Speaker 01:
And why isn't that at least on a motion to dismiss enough to get past the pleading stage on this theory that the dispatcher has inserted herself and is directing mom to do this or that?

[00:18:23] Speaker 04:
It's an unreasonable inference based on the totality of the dispatch recordings.

[00:18:29] Speaker 04:
If you look at it in context with what was said before and right after those comments, there was a whole dialogue about how they knew that Misty Hendrix did not have the money.

[00:18:41] Speaker 04:
If you look at the entire transcript you will see that Ms.

[00:18:45] Speaker 04:
Hendrix told Ms.

[00:18:46] Speaker 04:
Marvin at least seven times that she did not have the money.

[00:18:50] Speaker 04:
It didn't matter whether or not Ms.

[00:18:52] Speaker 04:
Marvin was telling her that it was a scam or could be a scam is actually what the transcript said, that they have lots of these calls and that many of them are scams and this is consistent with those calls.

[00:19:04] Speaker 04:
It didn't matter that she said that because Misty Hendrix told her that at one point that maybe she could send a couple hundred dollars and another time that said that she had only ten dollars to her name, that her parents couldn't send the money because her mother was undergoing cancer treatment, that she did not have any way to get the money.

[00:19:25] Speaker 04:
She told her daughter she was trying to get the money, but she knew she didn't have that money.

[00:19:32] Speaker 01:
I think there's also facts in the record that mom was aware she could have gotten a payday loan and that she would have.

[00:19:38] Speaker 04:
which is inconsistent with the record.

[00:19:40] Speaker 01:
And the case law is... Do you disagree that those facts are in this record?

[00:19:45] Speaker 04:
Yes.

[00:19:46] Speaker 04:
It is in the record.

[00:19:48] Speaker 04:
It is inconsistent with the recordings that were made on the day of this incident.

[00:19:54] Speaker 04:
And the case law is... But we're at the pleading stage.

[00:19:57] Speaker 01:
So maybe that's true.

[00:19:58] Speaker 01:
Maybe you at the evidence stage get to discredit that.

[00:20:01] Speaker 01:
But at the pleading stage, we take the allegations

[00:20:04] Speaker 01:
in favor of the plaintiff.

[00:20:06] Speaker 01:
And if she alleges, it would have been difficult, but I could have gotten the money if I really needed to.

[00:20:12] Speaker 01:
And I didn't because this dispatcher convinced me that it wasn't actually a kidnapping and I really shouldn't send money because this was just a scam to get drug money.

[00:20:22] Speaker 04:
Under Spreewell versus Golden State Warriors, when the items that are incorporated into the

[00:20:30] Speaker 04:
The record by reference, such as the audio recordings here, are inconsistent or directly contradict what is in the complaint.

[00:20:40] Speaker 04:
We don't consider what is in the complaint at all.

[00:20:46] Speaker 01:
So tell me, like, can you point me to a specific point in the transcript where the mom definitively says there's no way I'm getting this money?

[00:20:55] Speaker 01:
It's not possible.

[00:20:57] Speaker 04:
I can, actually, Your Honor.

[00:21:00] Speaker 04:
She says at ER 6110.

[00:21:03] Speaker 04:
Let me get to that page for you.

[00:21:12] Speaker 01:
Line 10?

[00:21:12] Speaker 01:
Line 10.

[00:21:19] Speaker 04:
You know, I told her she knows I don't have money like that.

[00:21:23] Speaker 04:
And then at ER 65, line 23, she says, I can't see Maya lying about this knowing I don't have money to give her.

[00:21:31] Speaker 04:
You know, I mean, she knows my mom is sick and we don't have money.

[00:21:35] Speaker 04:
Excuse me.

[00:21:37] Speaker 04:
We don't have it.

[00:21:38] Speaker 04:
And then again, at page 67, line 22, she says,

[00:21:45] Speaker 04:
You know what I mean?

[00:21:47] Speaker 04:
If it was a couple hundred dollars, I could see like her, you know, lying, because I could send her a couple hundred dollars.

[00:21:54] Speaker 04:
But 2,500, there's no way.

[00:21:57] Speaker 04:
And then again, on page 70, ER 70 at line 25, it says, you know, I don't have that kind of money.

[00:22:08] Speaker 04:
My mom and dad don't have that kind of money.

[00:22:10] Speaker 04:
You know, I'm trying to get it.

[00:22:12] Speaker 04:
And then at 72, on five to eight,

[00:22:17] Speaker 04:
She says, but my mom and dad don't have that kind of money right now either.

[00:22:22] Speaker 04:
My mom has cancer, and you know Maya should know that.

[00:22:24] Speaker 04:
She knows she has cancer, but she knows they don't have money.

[00:22:30] Speaker 04:
And then at seventy-four,

[00:22:31] Speaker 04:
At age 76, line 2, she says, I have $10 to my name.

[00:22:36] Speaker 04:
So that directly contradicts what the complaint says about Misty Hendricks being able to get the money, specifically about her being able to get the money from her parents, because she says throughout

[00:22:52] Speaker 04:
her conversations that her parents don't have the money.

[00:22:55] Speaker 04:
And in fact, Maya Hendrix, according to the recordings, called her grandmother twice, five hours before they called 911, for the first time, before calling her mother.

[00:23:10] Speaker 04:
That's what the record is here.

[00:23:12] Speaker 04:
So it is directly inconsistent with what is now in the complaint, which, by the way, is the third or fourth complaint in this case.

[00:23:21] Speaker 04:
There was one, two complaints in state court before it was removed to federal court.

[00:23:26] Speaker 04:
And I can't remember if the second complaint in state court was the original complaint in federal court.

[00:23:33] Speaker 04:
Now we're on the second amended complaint here.

[00:23:36] Speaker 04:
So the judge told

[00:23:42] Speaker 04:
appellant when he granted the motion to dismiss the first time what she needed to do to fix her complaint and she did not do it.

[00:23:51] Speaker 04:
That is in the record as well.

[00:23:54] Speaker 04:
Nothing the dispatchers did or didn't do caused appellant to be kidnapped or exposed her to a danger she did not already face.

[00:24:03] Speaker 04:
That her kidnappers would actually follow through with the threats that they were making.

[00:24:07] Speaker 04:
The dispatchers did not take her from a place of safety and place her in the hands of the kidnappers.

[00:24:13] Speaker 04:
She had already been kidnapped by people who were threatening to kill her.

[00:24:18] Speaker 04:
She was not placed in a worse situation by the actions or alleged inactions by these dispatchers.

[00:24:25] Speaker 02:
Could this case be compared to Arista, the case where the police told the woman not to search for her husband, that they would conduct a search and then they decided

[00:24:37] Speaker 02:
that he wasn't really missing, he was just having an affair, so they didn't search for him and then he died out in the woods.

[00:24:42] Speaker 02:
So it seemed that the point of that case was that what the government agents did was make the situation more dangerous because they dissuaded the wife from initiating a search for her husband.

[00:24:56] Speaker 02:
And here I think the theory is they dissuaded for the mother from making any attempts to obtain money and to pay the ransom.

[00:25:03] Speaker 02:
So, Dispatcher Marvin's statements could be interpreted as making the danger worse.

[00:25:12] Speaker 04:
Well, first, as the record shows from the recordings, Misty Hendricks told Miss Marvin over and over again that she couldn't get the money.

[00:25:21] Speaker 04:
So, there was no reason for the dispatcher to think that she was persuading her not to get the money.

[00:25:28] Speaker 04:
But secondly, directly answering your question about Arista, those facts were significantly different.

[00:25:33] Speaker 04:
In that situation, the law enforcement agency said that they were taking care of the search, so don't worry about it.

[00:25:41] Speaker 04:
And then they delayed several hours while the commander came to the scene, or to the home, and she overheard him talking about, oh, he must be having an affair, so we're not going to actually start the search until the morning.

[00:25:55] Speaker 04:
And then he told her, please don't do a search.

[00:25:58] Speaker 04:
We're going to do the search.

[00:26:00] Speaker 04:
And after she realized they weren't going to do the search, and she was concerned about hypothermia, and she told him about the reason that hypothermia was a concern, he still didn't want to start the search to the morning.

[00:26:14] Speaker 04:
And eventually, she did start the search.

[00:26:16] Speaker 04:
And unfortunately, he had succumbed to hypothermia at that point.

[00:26:21] Speaker 04:
But the difference in Arista versus here is that law enforcement had already taken control of the situation and said that they were going to do the search.

[00:26:31] Speaker 04:
Here, dispatch had clearly told them that there was nothing they could do until they had somewhere to start.

[00:26:37] Speaker 04:
They took the steps of trying to

[00:26:39] Speaker 04:
tracked the phone, they took the steps of trying to get any and all information to try to figure out where Maya Hendrix was, including asking Misty Hendrix to call the lady from Narcotics Anonymous again.

[00:26:56] Speaker 02:
So the district court made a statement that the dispatchers were not trying to convince Misty of anything, let alone that the kidnapping was a scam.

[00:27:10] Speaker 02:
If that's an incorrect information from this record and that in fact they were trying to convince her that the kidnapping was a scam, does that make any difference?

[00:27:18] Speaker 04:
No, it doesn't, Your Honor, because regardless of whether they convinced her it was a scam or not, Misty Hendrix did not have the ability to get the money according to the transcript of these audio recordings.

[00:27:31] Speaker 04:
But regardless, it is not an incorrect interpretation of what the transcript said.

[00:27:35] Speaker 04:
The transcript clearly says that it could be a scam.

[00:27:39] Speaker 04:
This is why it could be a scam.

[00:27:41] Speaker 04:
And there are also comments from Marvin about how this could not be a scam.

[00:27:47] Speaker 04:
And this could very well be a serious situation.

[00:27:51] Speaker 04:
She needs to have her daughter call 911 the next time she talks to her because only the police can help her.

[00:27:57] Speaker 04:
They don't know where she is.

[00:28:00] Speaker 04:
That's what the full transcript is, and that is what plaintiff is ignoring.

[00:28:06] Speaker 00:
I'm troubled by if we were to make this case turn on whether or not Misty had the power to get money.

[00:28:15] Speaker 00:
Misty, there's all kinds of ways you might be able to get money with friends or loans or other things.

[00:28:22] Speaker 00:
And it seems to me that if we go down that road and say, if you don't have any means to get money, you're going to have to put up with more advice not to do anything than if you do.

[00:28:35] Speaker 00:
That line troubles me.

[00:28:38] Speaker 00:
I'd much rather focus on what, in fact, they told anybody and how anybody would interpret it.

[00:28:45] Speaker 04:
And that does go to Your Honor's comments earlier about what dispatchers should be

[00:28:52] Speaker 04:
free to be able to tell people when they're on the phone with them and how to do their jobs.

[00:28:57] Speaker 04:
That's probably not as well said as your honor said it.

[00:29:01] Speaker 04:
But in this case, what Ms.

[00:29:03] Speaker 04:
Marvin was saying was, and I'm out of time, but may I finish answering the question?

[00:29:12] Speaker 04:
I'm satisfied.

[00:29:13] Speaker 04:
Okay.

[00:29:14] Speaker 04:
What she was trying to tell her was this could be a scam.

[00:29:18] Speaker 00:
No, if you're out of time, you're going to have to talk to the presiding judge.

[00:29:21] Speaker 00:
I don't have any authority over that.

[00:29:23] Speaker 02:
I'm willing to let you finish answering your question.

[00:29:25] Speaker 02:
Judge Ebel said he's satisfied.

[00:29:27] Speaker 00:
I'm satisfied right now.

[00:29:27] Speaker 02:
He's satisfied, so I guess he doesn't need an additional answer.

[00:29:30] Speaker 02:
So thank you.

[00:29:31] Speaker 02:
Okay.

[00:29:32] Speaker 04:
With that being said, Your Honors, since this is a de novo review, you can affirm on any grounds that we're

[00:29:39] Speaker 04:
included in the moving papers that are in the record as well, and we submit.

[00:29:44] Speaker 04:
Thank you.

[00:29:45] Speaker 02:
Thank you.

[00:29:47] Speaker 02:
All right, I'm going to try to get her right.

[00:29:50] Speaker 03:
Bagassee.

[00:29:50] Speaker 03:
Bagassee, Your Honor.

[00:29:51] Speaker 03:
Thank you.

[00:29:53] Speaker 03:
So briefly, to respond on the issue of the conflicting extrinsic evidence here,

[00:29:58] Speaker 03:
There was not a direct conflict between the extrinsic evidence of the calls and what Ms.

[00:30:02] Speaker 03:
Hendricks said, what was pled in the complaint about Misty Hendricks's actual situation and ability to get money.

[00:30:09] Speaker 03:
The other cases referenced in the briefs that dealt with conflicting extrinsic evidence such as Spruill involved binary questions.

[00:30:18] Speaker 03:
So for example, what was the basis for the plaintiff's punishment by the NBA?

[00:30:23] Speaker 03:
Was it discrimination?

[00:30:24] Speaker 03:
No, the actual arbitration record attached showed that it was in fact misconduct.

[00:30:30] Speaker 03:
In Scott, the question was, was the driver speeding or not?

[00:30:35] Speaker 03:
Very easy, very easy to determine what conflicts.

[00:30:39] Speaker 03:
In when did the bank have title or did it not have title?

[00:30:42] Speaker 03:
These are binary questions that are capable of being answered by extrinsic evidence here.

[00:30:46] Speaker 03:
It is at most ambiguous and at most an issue of credibility that could be sussed out during a deposition, during trial, but not a basis for dismissal and not a basis to ignore the rule that one interprets ambiguities in the extrinsic evidence in the favor of the non-moving party.

[00:31:06] Speaker 03:
Thank you.

[00:31:06] Speaker 02:
Thank you.

[00:31:07] Speaker 02:
Thank you both for your arguments this morning.

[00:31:09] Speaker 02:
This case is submitted and we'll take questions.

[00:31:12] Speaker 02:
Ten minute break.

[00:31:13] Speaker 02:
So it's I have 1015 right now.

[00:31:15] Speaker 02:
So we'll be back at 1025 for the fourth and final argument this morning.

[00:31:21] Speaker 01:
All rise.

[00:31:23] Speaker 02:
This court stands a recess for 10 minutes.