[00:00:04] Speaker 04:
Well, good morning, and welcome to the Ninth Circuit.

[00:00:07] Speaker 04:
I apologize that we brought the weather with us from the mainland, but hopefully it will be short-lived.

[00:00:16] Speaker 04:
We're grateful for everyone who's shown up today.

[00:00:20] Speaker 04:
Judge Bybee and Judge Forrest and I are very happy to be here in Hawaii and hearing these cases.

[00:00:28] Speaker 04:
And we're grateful for the preparation that the attorneys have helped us with on them.

[00:00:33] Speaker 04:
I will go ahead and just jump into the first case set for argument today, which is Miller versus Kaneshiro.

[00:00:41] Speaker 04:
That's case number 25-1994.

[00:00:42] Speaker 04:
And we'll start with Mr. Kiuchi.

[00:00:50] Speaker 03:
Yes.

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

[00:00:53] Speaker 03:
Good morning, Judge Nelson, Judge Bybee, Judge Forrest.

[00:00:57] Speaker 03:
My name is Keith Kiuchi, and I represent appellants Michael Miller, Eugene Simeone, and PJY Enterprises LLC.

[00:01:05] Speaker 03:
I'd like to reserve five minutes for rebuttal, if I could.

[00:01:09] Speaker 03:
So this case really comes down to primarily one issue, which is the statute of limitations.

[00:01:16] Speaker 03:
This is a seizure of 81 gaming machines that occurred in 2012 and 2013.

[00:01:22] Speaker 03:
The machines were kept, retained by the Homeland Police Department.

[00:01:30] Speaker 03:
Some of the parties that operated the arcades from which the machines were seized were subject to a criminal proceeding that was subsequently dismissed.

[00:01:43] Speaker 04:
So counsel, I understand you're right that the statute of limitations is the issue.

[00:01:48] Speaker 04:
And it seems to be when did the claims accrue.

[00:01:51] Speaker 04:
And so what, in your view, is the harm that you are seeking to recover for here?

[00:02:00] Speaker 03:
Well, we're seeking to recover the value of the machines.

[00:02:05] Speaker 03:
Right.

[00:02:06] Speaker 03:
And what's the claim then?

[00:02:10] Speaker 03:
There's a couple of claims.

[00:02:12] Speaker 03:
One was a claim for bailment.

[00:02:14] Speaker 03:
And there's several cases that allow bailment, even with a governmental entity.

[00:02:22] Speaker 03:
And there was a claim simply for

[00:02:25] Speaker 03:
the city and county of Honolulu withholding the machines without authority to do so.

[00:02:31] Speaker 03:
So when did they lack authority?

[00:02:36] Speaker 03:
After the Supreme Court decision December 20, 2021.

[00:02:41] Speaker 03:
You don't think that they lacked authority before that?

[00:02:44] Speaker 03:
Well, I maintained they lacked authority before that, but then what happened is the circuit court

[00:02:52] Speaker 03:
Circuit Court in Honolulu ruled in our favor on the issue of whether they could retain the machines.

[00:02:59] Speaker 03:
And that was on the 77 machines versus these 81 machines.

[00:03:04] Speaker 03:
After that, on that appeal, the Intermediate Court of Appeals decision,

[00:03:09] Speaker 03:
rule, which is June 20th, 2017, ruled in favor of the city and county of Honolulu.

[00:03:16] Speaker 03:
So at that point, the law was based upon the ICA decision.

[00:03:21] Speaker 03:
The ICA decision said that under Chapter 712A of the Hawaii Revised Statutes that the city and county of Honolulu were not subject to any time deadlines.

[00:03:33] Speaker 03:
We

[00:03:34] Speaker 03:
filed an application for cert to the Hawaii Supreme Court.

[00:03:37] Speaker 03:
Hawaii Supreme Court accepted the review and reversed the Intermediate Court of Appeals.

[00:03:43] Speaker 00:
You had a legal ground to think that the withholding of the machines was improper even before that ruling.

[00:03:49] Speaker 00:
You just said a minute ago that you thought that it was improper.

[00:03:52] Speaker 00:
So why didn't that trigger your obligation to, or why didn't that trigger the timing and your obligation to?

[00:03:58] Speaker 03:
Because our position is the ICA decision

[00:04:03] Speaker 03:
made that virtually impossible.

[00:04:05] Speaker 03:
So if we had filed an action in State Circuit Court to recover the machines, that action in State Circuit Court would have been dismissed up until the December 20th, 2021.

[00:04:18] Speaker 00:
Couldn't you have filed it and then asked for a stay if you thought that you needed to have the decision from the Hawaii Supreme Court before you could actually proceed with the action?

[00:04:27] Speaker 03:
I don't think that would have been necessarily appropriate, but I can see where you would think that that would be a possibility.

[00:04:37] Speaker 04:
Arbel, doesn't that answer the question?

[00:04:39] Speaker 04:
If that's a possibility, why doesn't that answer the question?

[00:04:43] Speaker 04:
I mean, the problem with your argument, and the district court seemed to hit this on the head pretty clearly, is that under your theory, you could just wait for a case.

[00:04:54] Speaker 04:
You could file a test case, wait for that case, and then file subsequent claims.

[00:04:59] Speaker 04:
And I'm not aware, I mean, maybe you can direct me to, I'm well aware of a sort of a,

[00:05:08] Speaker 04:
tolling of the statute of limitations during the pendency of a lawsuit, but I'm not particularly aware of a theory that would allow tolling where you haven't filed the lawsuit in the first place.

[00:05:19] Speaker 03:
Well, in this case, I think the equitable tolling would be applicable because the 77 machines were in the same bucket as really the 81 machines.

[00:05:29] Speaker 03:
The city has distinguished between the two, but it would have been fruitless for us to file any lawsuit because the litigation on the 77 machines was still pending.

[00:05:41] Speaker 02:
Counsel, it is not unusual for lawyers to have to preserve objections.

[00:05:50] Speaker 02:
Sometimes you have to preserve objections during the trial, even though you know how the district judge is going to rule.

[00:05:55] Speaker 02:
You know, the district judge has said, yeah, counsel, I've heard that objection.

[00:05:58] Speaker 02:
Sometimes you have to come back and say, I'd like to note the standard objection, Your Honor, objection noted, without having to give the detail.

[00:06:05] Speaker 02:
So it's just not unusual that you have to preserve an issue for somebody else.

[00:06:10] Speaker 02:
The 81 machines are not the 77 machines.

[00:06:14] Speaker 03:
I agree that they're not the 77 machines, but the issue is virtually the same issue.

[00:06:20] Speaker 03:
And the issue is really under 712A.

[00:06:22] Speaker 03:
It's not under HRPP 41E, which is the point that the district court kind of made.

[00:06:30] Speaker 03:
is the district court kind of made the point that 41E applied because they started the statute of limitations began to accrue when the criminal charges were dismissed.

[00:06:42] Speaker 03:
And we argued that that was error because the criminal charges really had nothing to do with seeking relief for a violation of 712A.

[00:06:52] Speaker 03:
41E is a distinctly different

[00:06:57] Speaker 03:
procedure.

[00:06:58] Speaker 03:
It's Hawaii Rules of Penal Procedure, and it specifically allows for the return of property, but a person aggrieved by an unlawful search and seizure over the deprivation of property.

[00:07:10] Speaker 03:
In this case, 41E was not applicable.

[00:07:14] Speaker 03:
If you look at the two cases I cited, Oia v. State and Lum v. Donahue, both of those cases deal with

[00:07:21] Speaker 03:
situations where there was no criminal proceedings.

[00:07:25] Speaker 03:
That was just a seizure, and 41E applied because the aggrieved party filed a motion under Rule 41E to get it back.

[00:07:35] Speaker 03:
So that's where we think the district court erred, because the district court really started to accrue from October 27, 2016, which is when the order was filed dismissing the criminal case.

[00:07:50] Speaker 03:
And our assertion is that was error, that they should not have accrued it from that date.

[00:07:55] Speaker 03:
They should have accrued it from the date.

[00:07:57] Speaker 00:
In your view, what is the moment that the retention of the machines by the state was improper?

[00:08:04] Speaker 03:
December 20th, 2021, which is a Supreme Court decision.

[00:08:08] Speaker 00:
No, but a few minutes ago, you said that even before that, the state holding those machines was improper.

[00:08:14] Speaker 00:
Yes.

[00:08:15] Speaker 00:
And you believed that.

[00:08:15] Speaker 00:
So that's what I'm asking.

[00:08:17] Speaker 00:
What is the factual event that occurred?

[00:08:20] Speaker 00:
that made you think that the state's retention of the machines was improper?

[00:08:23] Speaker 03:
There was no change in the factual event.

[00:08:26] Speaker 03:
I mean, they never applied under 712A for for- I don't think you're tracking my question.

[00:08:32] Speaker 00:
So I'm trying to get at, like, you either think it's the moment that they took them, or you think that it's some other moment later after that where something materially changed where the state holding those machines was no longer lawful.

[00:08:45] Speaker 00:
What is the moment where you think that it became unlawful?

[00:08:48] Speaker 03:
I still think I've got to go back to the Supreme Court decision because the Supreme Court decision... I just don't understand that answer because you've previously said that you thought it was unlawful even before then.

[00:08:58] Speaker 03:
Because we think it's unlawful, it doesn't mean that we would get the result we wanted when we filed indiscriminately.

[00:09:05] Speaker 03:
Again, counsel, sometimes you have to preserve your argument.

[00:09:07] Speaker 03:
I understand that, but in this case, specific case,

[00:09:12] Speaker 03:
And it was kind of unusual, because the gap from the ICA decision to the Supreme Court decision was four years, which is an unusual period of time.

[00:09:22] Speaker 03:
But it's really not that unusual.

[00:09:24] Speaker 04:
I mean, this happens all the time, where you have multiple tiers of claims.

[00:09:32] Speaker 04:
They're all related to each other.

[00:09:34] Speaker 04:
And the way to do that is to ask the court to protect your rights, and then ask the court

[00:09:40] Speaker 04:
to figure.

[00:09:40] Speaker 04:
I mean, you may well have been within your right to say, hey, hold these cases to see how the Supreme Court rules.

[00:09:47] Speaker 04:
But you took a big risk by not even going into court at all.

[00:09:54] Speaker 03:
Well, one of the things we pointed out is we did attempt

[00:09:59] Speaker 03:
to get the machines back from the city after the criminal case was dismissed.

[00:10:04] Speaker 03:
And we were told... In a way that hurts you, I think.

[00:10:07] Speaker 04:
Because that suggests you knew that you had a right to get them back.

[00:10:12] Speaker 04:
And they told you no.

[00:10:13] Speaker 03:
Well, that also shows that we took every avenue possible.

[00:10:17] Speaker 03:
I still don't think.

[00:10:18] Speaker 03:
Not every avenue possible.

[00:10:20] Speaker 03:
Well, I still don't think 41E was the applicable governing statute because 41E is a different situation than 712A.

[00:10:29] Speaker 03:
I think 712A here would be the governing statute and the governing rule.

[00:10:38] Speaker 03:
So I think that's what triggered it.

[00:10:41] Speaker 03:
But I think we have a right to

[00:10:43] Speaker 03:
assert the equitable tolling in essence because of the Supreme Court decision.

[00:10:48] Speaker 03:
Okay, do you want to reserve?

[00:10:50] Speaker 03:
Yes, please.

[00:10:51] Speaker 03:
Thank you.

[00:11:01] Speaker 01:
Good morning and may it please the court, Daniel Gluck, Deputy Corporation Counsel for Defendants Appellees.

[00:11:06] Speaker 01:
The plaintiffs argue that their claims either did not accrue or were told until 2021 when the Hawaii Supreme Court ruled in a different case involving 77 different gambling machines.

[00:11:18] Speaker 01:
That case simply does not apply here.

[00:11:20] Speaker 01:
That case dealt with the timeframe in which the government could bring a forfeiture action.

[00:11:25] Speaker 01:
It didn't prevent the plaintiffs in this case.

[00:11:28] Speaker 04:
Does it even matter whether it applies here?

[00:11:30] Speaker 04:
I mean, because even if it did apply and it was on all four, you'd still be arguing, I think, that they had to preserve.

[00:11:38] Speaker 01:
That's exactly right, Your Honor.

[00:11:40] Speaker 04:
So here's the question that I have for you, because they seem to have brought a... I mean, that's why I was asking him what his claims were.

[00:11:48] Speaker 04:
His claims seem to be forfeiture in the sense that you had no right to take them in the first place.

[00:11:53] Speaker 04:
But there is this idea that more... I mean, there's a difference between, hey, we want you to return our property

[00:11:59] Speaker 04:
And hey, you've destroyed our property.

[00:12:03] Speaker 04:
Maybe you can help me out.

[00:12:06] Speaker 04:
Number one, did they raise a separate claim for just destruction of property separate from false retention or unlawful retention, I guess?

[00:12:20] Speaker 04:
Did they raise that claim?

[00:12:21] Speaker 04:
And then would those two claims have accrued on separate dates?

[00:12:25] Speaker 01:
I'm not sure whether they're making that argument on appeal, Your Honor.

[00:12:29] Speaker 01:
Did they make it below?

[00:12:31] Speaker 01:
I believe they brought a claim for negligence, so I think it's fair to say that that's encompassed there.

[00:12:37] Speaker 01:
To answer Your Honor's other question,

[00:12:42] Speaker 01:
they'd have to accrue at the same time.

[00:12:44] Speaker 01:
The statutes and limitations for damage to property and the taking of the property would have to start accruing at the same time.

[00:12:50] Speaker 01:
Otherwise, let's say that there's a situation in which someone takes my car.

[00:12:56] Speaker 01:
I would have a claim for conversion or some other common law claims.

[00:13:00] Speaker 01:
If I don't do anything about that, I can't wait until 20 years later when I notice that they've just parked my car in their yard and it's... Well, see, that's not entirely intuitive to me.

[00:13:10] Speaker 04:
Because they could say, hey, we're holding it for you.

[00:13:14] Speaker 04:
We've got it in a locked garage.

[00:13:17] Speaker 04:
And you're like, OK, I'm OK with that.

[00:13:19] Speaker 04:
I mean, I don't think you have the right, but I'm OK to let you have it because I know you're keeping it in safekeeping.

[00:13:26] Speaker 04:
10 years later, they move it out of the locked garage and it's susceptible to be stolen and to get stolen.

[00:13:35] Speaker 04:
This seems to be a different claim to me.

[00:13:38] Speaker 04:
And so I guess I'm wondering what your argument is for why that wouldn't or couldn't accrue separately.

[00:13:45] Speaker 01:
Well, I think one reason, Your Honor, is that it puts the statute of limitations completely within the plaintiff's control in a case.

[00:13:51] Speaker 01:
And it's supposed to, you know, statutes of limitations are supposed to be statutes of repose to give the defendant some security that after a sufficient time that a claim won't be brought.

[00:14:01] Speaker 04:
I don't agree with that because, I mean, you're right as to the conversion.

[00:14:06] Speaker 04:
That may be true.

[00:14:07] Speaker 04:
But then if a defendant takes a separate action 10 years later,

[00:14:14] Speaker 04:
Why isn't that a new action that could be subject to a new statute of limitations?

[00:14:20] Speaker 01:
Well, both Hawaii law and federal law are clear that you look at when an action, either when a plaintiff knew or reasonably should have known that some damage was done to their property, that some action was committed against their property.

[00:14:33] Speaker 01:
In effect, the Hawaii Supreme Court is clear.

[00:14:35] Speaker 01:
There's case law saying, look, you really are looking at the property itself and whether some wrong was done to your property.

[00:14:43] Speaker 01:
If there is an agreement that someone else hold my property, then there's no wrong being done because there's an agreement, there's a contract to hold the property.

[00:14:51] Speaker 01:
But in this case, you've got to claim that the government is not lawfully holding the property.

[00:14:56] Speaker 01:
And in fact, the plaintiff very clearly wanted the property back.

[00:14:59] Speaker 01:
And so that tort has been committed at that time.

[00:15:02] Speaker 01:
And so if you're also going to bring in a claim for damage to the property,

[00:15:05] Speaker 01:
It has to run at the same time.

[00:15:07] Speaker 00:
I mean, to follow up on that.

[00:15:09] Speaker 00:
So we're talking about the statute of limitations, as you rightly point out, for a tort claim.

[00:15:13] Speaker 00:
But under the scenario where somebody doesn't act timely, they think that their property is being held unlawfully, but they don't do anything about it.

[00:15:22] Speaker 00:
And say we're past the statute of limitations period, that wouldn't bar them from filing an action for return of the property, separate from a tort claim that's seeking other sort of damages, loss of use or whatever.

[00:15:35] Speaker 00:
but just return it.

[00:15:36] Speaker 00:
I think you're holding it and you don't have the ability to hold it.

[00:15:39] Speaker 00:
Now I want it back.

[00:15:40] Speaker 00:
That's the full scope of relief.

[00:15:42] Speaker 00:
You don't think that that would be barred by the statute of limitations, do you?

[00:15:45] Speaker 00:
So you're envisioning just a Rule 41 claim for return of property.

[00:15:48] Speaker 00:
I think that's probably right, Your Honor.

[00:15:51] Speaker 00:
So then if that's right, then Judge Nelson, I think, raises a good point of

[00:15:55] Speaker 00:
the tort injury has changed in character from you're holding it unlawfully to it's now gone, right?

[00:16:03] Speaker 00:
Like the injury that I have suffered is different because in the first scenario, I can remedy that injury by getting the thing back.

[00:16:09] Speaker 00:
In the second scenario, I'm never getting it back because it's destroyed.

[00:16:13] Speaker 00:
So why hasn't my injury changed in character enough so that my tort injury, my ability to seek tort recovery has changed such that the,

[00:16:24] Speaker 00:
that we start over again with the limitations period.

[00:16:29] Speaker 01:
When courts sometimes talk about continuing torts or something like that,

[00:16:33] Speaker 01:
It's because you can't measure what the damages are, right?

[00:16:37] Speaker 01:
You don't know if there's some ongoing harm.

[00:16:39] Speaker 01:
You can't put a cap on the damages.

[00:16:41] Speaker 01:
But when it comes to a piece of property, you can.

[00:16:43] Speaker 01:
It's the value of the property.

[00:16:45] Speaker 01:
And you know that from the moment that it's taken.

[00:16:47] Speaker 01:
And so if, going back to my car example, you know the value of the car, the total value of the car, it's going to decrease over time just because of time, right?

[00:16:56] Speaker 01:
These things lose value.

[00:16:57] Speaker 01:
And so saying that the statute of limitations would accrue, it doesn't fit the continuing tort theory that they may be true.

[00:17:06] Speaker 04:
On the one hand, I agree with you.

[00:17:07] Speaker 04:
That's why I was kind of struggling with this question because your argument, your best argument seems to be, look, this is just a question of damages.

[00:17:16] Speaker 04:
These damages all accrue from the same action.

[00:17:18] Speaker 01:
Yes.

[00:17:20] Speaker 04:
But that's where I'm not sure that's totally true, because you could look at this another way and say these are two separate actions.

[00:17:28] Speaker 04:
There's the taking of the property, and then there's the destruction of the property.

[00:17:32] Speaker 04:
And those are two different actions.

[00:17:35] Speaker 04:
And why wouldn't we look at those as two different actions?

[00:17:38] Speaker 01:
If that's true, then governments are going to have a very, very difficult time disposing of property ever.

[00:17:46] Speaker 01:
Because as you know, governments take property all the time in conjunction with arrests and things.

[00:17:50] Speaker 01:
After some period of time, after the statutes and limitations have passed, after whatever period that the police departments have in their policies, the police want to get rid of the property.

[00:17:59] Speaker 01:
They don't want to hold on to it forever.

[00:18:01] Speaker 01:
But under the theory that you're suggesting, Judge Nelson, they could never get rid of the property.

[00:18:05] Speaker 04:
Well, they could.

[00:18:06] Speaker 04:
It would just reinstitute.

[00:18:08] Speaker 04:
a new statute of limitations?

[00:18:11] Speaker 01:
Well, not only that, but if they kept it, every day that went by that would presumably lead to some tiny additional damage to the property just by the passage of time would again restart the statute of limitations.

[00:18:22] Speaker 02:
So does HPD have a policy on retention of, let's say, cars or bicycles?

[00:18:27] Speaker 01:
I believe they do, Your Honor.

[00:18:28] Speaker 01:
I don't think it's in the record on it.

[00:18:29] Speaker 02:
They sell them at auction?

[00:18:31] Speaker 01:
I believe there is some property that sold at auction.

[00:18:33] Speaker 01:
Again, I'm not super familiar with it and it's not in the record on it.

[00:18:36] Speaker 04:
We don't know what happened to the, we just know they don't exist anymore.

[00:18:40] Speaker 04:
The machine in the government's possession.

[00:18:42] Speaker 01:
I again, not in the record on appeal, but I can represent that machines are still in the government's possession, but I do not know the condition of them.

[00:18:50] Speaker 04:
Oh,

[00:18:51] Speaker 04:
They still are in the position of the government.

[00:18:53] Speaker 01:
That's my understanding.

[00:18:54] Speaker 04:
Can you turn them over?

[00:18:55] Speaker 04:
Or I'm confused.

[00:18:57] Speaker 04:
Wouldn't you be under an obligation to turn them over now?

[00:19:00] Speaker 01:
Again, I think that the government is willing to turn them over.

[00:19:03] Speaker 01:
I don't know.

[00:19:04] Speaker 01:
I don't have the specifics of what happened between the previous case.

[00:19:06] Speaker 04:
So the claim here is just we want the value of it because they're

[00:19:12] Speaker 01:
That's correct, Your Honor.

[00:19:13] Speaker 02:
But presumably, whatever administrative regulation, or if there's a statute, you could sell them at auction, for example.

[00:19:21] Speaker 02:
They'd be deemed abandoned property at some point, and the police could simply, if they wished, could either destroy them, so they didn't have to park them in their warehouse, or they could sell them back to the public at auction.

[00:19:33] Speaker 00:
Yes, Your Honor.

[00:19:36] Speaker 00:
I'm not familiar with this type of procedure.

[00:19:39] Speaker 00:
Is it true under Hawaii law that there is a period of abandonment that if we haven't reached that point then the property owner could at any point in time go through the mechanism of trying to get return of the property and we'll see how that sorts out but then there is sort of a time period where if you haven't made such a claim

[00:20:00] Speaker 00:
we deem you abandoned, and then your rights are terminated, we can do, as the state, we can do whatever we want to dispose of this.

[00:20:06] Speaker 00:
That's a great question, Judge Forrest.

[00:20:07] Speaker 01:
I'm sorry, I don't know the answer.

[00:20:08] Speaker 01:
I assume that that's correct, but I don't know.

[00:20:12] Speaker 01:
But they haven't done that, is your point.

[00:20:15] Speaker 01:
I think that there had been some communications in the past, but I'm not, I don't know what the current state of those discussions is.

[00:20:22] Speaker 04:
But that's not part of this litigation.

[00:20:24] Speaker 01:
Correct.

[00:20:24] Speaker 01:
Your honor.

[00:20:24] Speaker 01:
Yeah.

[00:20:25] Speaker 01:
This again, this is just entirely a damages case for the value of the machines for which the statute of limitations has run.

[00:20:32] Speaker 00:
So, um, I mean, the reason that the plaintiffs think that there is something the matter with the machines that the state was holding is that I think the city, I keep saying the states, the city, um, the city issued them notice saying that they had been destroyed.

[00:20:49] Speaker 01:
So I don't know that there was any notice.

[00:20:52] Speaker 01:
There's certainly nothing in the record about notice.

[00:20:54] Speaker 01:
And in fact, the appellants had mentioned July 22 being informed.

[00:21:00] Speaker 01:
There's nothing in the record.

[00:21:01] Speaker 01:
There's no declaration or exhibit of any kind in the record to satisfy that date.

[00:21:05] Speaker 01:
There is evidence in the record of an inspection in 2024 that happened.

[00:21:10] Speaker 01:
But I don't know that there was a notice, a piece of paper that was issued.

[00:21:19] Speaker 04:
I think this comes from their brief.

[00:21:21] Speaker 04:
They said on July 15, 2022, the city informed them that, I see, I misread that.

[00:21:27] Speaker 04:
I thought they were gone, but it says that the 81 machines were inoperable.

[00:21:32] Speaker 01:
Correct.

[00:21:32] Speaker 01:
And that citation in the brief is to the complaint.

[00:21:35] Speaker 01:
And as the court is aware, that's not evidence.

[00:21:38] Speaker 01:
It's just an allegation in the complaint.

[00:21:39] Speaker 01:
All right.

[00:21:44] Speaker 01:
If the court has no further questions.

[00:21:46] Speaker 01:
All right.

[00:21:46] Speaker 01:
Thank you very much.

[00:21:47] Speaker 01:
I guess just to wrap up that we asked that district court order be upheld.

[00:21:52] Speaker 03:
Thank you.

[00:22:00] Speaker 03:
I'm going to respectfully disagree with opposing council.

[00:22:04] Speaker 03:
There was specifically a representation made by the City Court Council offices reference in page 5 of my opening brief.

[00:22:13] Speaker 03:
that the 81 machines were destroyed.

[00:22:18] Speaker 03:
Is that just in your complaint?

[00:22:22] Speaker 03:
No, it's not.

[00:22:24] Speaker 03:
It's also referenced in my declaration.

[00:22:26] Speaker 03:
It's also referenced in Mr. Yoshimura's declaration.

[00:22:32] Speaker 03:
There's a specific reference in Mr. Yoshimura's declaration that an inspection of the machines occurred on September 27, 2024, and only 56 of the 81 machines were ready for inspection, and all but one of the machines didn't work.

[00:22:50] Speaker 03:
But there was a representation made

[00:22:54] Speaker 03:
at the time of a July 2022 inspection that the 81 machines were destroyed.

[00:23:01] Speaker 03:
That's in the complaint.

[00:23:02] Speaker 03:
That's in my declaration.

[00:23:04] Speaker 03:
Well, and maybe it doesn't matter.

[00:23:07] Speaker 04:
I mean, inoperable versus destroyed.

[00:23:10] Speaker 04:
What was it?

[00:23:12] Speaker 03:
Were they inoperable or were they destroyed?

[00:23:14] Speaker 03:
No, the representation in July 2022 is they were destroyed.

[00:23:19] Speaker 03:
Then all of a sudden, the city found the machines and inspection was conducted on September 27, 2024.

[00:23:28] Speaker 03:
But they only produced 56 of the 81 machines.

[00:23:32] Speaker 03:
Of the 56 machines they produced, all but one did not work.

[00:23:36] Speaker 04:
Can you point me to the record where it talks this?

[00:23:39] Speaker 04:
Because I'm looking at your brief and your brief just says,

[00:23:43] Speaker 04:
July 15th, on page eight of your brief, it says July 15th, 2022, when they were informed by the city that the 81 PDS machines had been destroyed, but there's no citation to the record.

[00:23:58] Speaker 02:
Paragraph 13 of the Yoshimura Declaration says that you and Mr. Yoshimura went there on the date you referred to, which was September 27, 2024.

[00:24:07] Speaker 02:
Fifty-six of the 81 machines were ready for inspection.

[00:24:10] Speaker 02:
All but one of the machines didn't work.

[00:24:11] Speaker 02:
The machines didn't work for one of four reasons.

[00:24:13] Speaker 02:
Wouldn't turn on, turned on, then shut down, screen damage or termite damage to cabinet.

[00:24:18] Speaker 03:
Right, that's correct.

[00:24:21] Speaker 03:
That's what happened.

[00:24:22] Speaker 03:
So I don't even know at this point whether the balance of the 81 machines even, you know, were destroyed or existed.

[00:24:30] Speaker 03:
So here, I mean, I'd posited, you heard my questions.

[00:24:35] Speaker 04:
Here's the problem in your case.

[00:24:39] Speaker 04:
Those damages, I mean, it almost seems like those are just direct damages from them unlawfully holding them at some point.

[00:24:48] Speaker 04:
So, I mean, it's not like they were keeping these inside.

[00:24:52] Speaker 04:
They didn't tell you, hey, we're keeping this in a sealed tight, you know, position.

[00:24:56] Speaker 04:
I mean, they were just being, you didn't know, presumably.

[00:25:00] Speaker 04:
And I mean, it's not unforeseeable that over eight years, you know, there's going to be damage to machines that are just being held in their custody.

[00:25:12] Speaker 04:
So that's why this one does seem to be more like a damages claim that relates to

[00:25:19] Speaker 04:
the unlawful retention as opposed to some other claim where they took some extra action that would have retriggered.

[00:25:27] Speaker 04:
And I guess you're not really even arguing that, are you?

[00:25:29] Speaker 03:
No, we're not arguing that because, I mean, we don't know where the machines were held during that period of time, but there was an inordinate period of time when the machines were being held by HPD.

[00:25:43] Speaker 03:
I mean, the record doesn't show this, but they were held actually in two different warehouses.

[00:25:47] Speaker 03:
There was an inspection conducted like I said in 2022.

[00:25:51] Speaker 03:
That inspection was conducted after the Supreme Court case.

[00:25:55] Speaker 04:
But the damages here, I think that's the problem for you.

[00:25:57] Speaker 04:
The damages all seem to stem ultimately from the unlawful retention.

[00:26:01] Speaker 04:
And so then we get back to the series of questions of when did the unlawful retention occur.

[00:26:07] Speaker 04:
as Judge Forrest has pointed out, has suggested that that actually did begin sometime before the Supreme Court issued the Alms decision, but you've not been specific about when.

[00:26:18] Speaker 03:
Well, this sees the machines on December 13, 2012 and February 14, 2014.

[00:26:25] Speaker 03:
Right, but you don't believe that, well, do you believe that that's when your claims started accruing?

[00:26:30] Speaker 04:
No.

[00:26:30] Speaker 04:
Yeah.

[00:26:31] Speaker 04:
No.

[00:26:31] Speaker 04:
Do you believe that they started accruing in 2016 once they dropped the criminal charges?

[00:26:37] Speaker 03:
No, the reason I don't believe that is because 41E is a different remedy than 712A.

[00:26:44] Speaker 03:
They never had the authority to hold it under 712A.

[00:26:49] Speaker 03:
Our position is under 712A.

[00:26:52] Speaker 03:
There was no case law under 712A until the Intermediate Court of Appeals decided that the Supreme Court reversed that.

[00:26:59] Speaker 03:
So that's basically our position.

[00:27:01] Speaker 02:
So Mr. Kucchi, let's see if I've got my dates right.

[00:27:05] Speaker 02:
The district court says that the clock starts ticking on October 27, 2016.

[00:27:08] Speaker 02:
Right.

[00:27:09] Speaker 02:
If you had a six-year statute of limitations, then you had to file it before October 27 to October 26, 2016.

[00:27:20] Speaker 02:
22, correct.

[00:27:21] Speaker 02:
You file in November of 2022?

[00:27:23] Speaker 02:
Correct.

[00:27:24] Speaker 02:
Okay.

[00:27:24] Speaker 02:
And the Yoshimura Declaration says that you inspected those machines in September of 2024.

[00:27:33] Speaker 03:
But there was also initial inspection.

[00:27:35] Speaker 03:
2024, got it.

[00:27:37] Speaker 03:
2022 is when we inspected the 77 machines.

[00:27:41] Speaker 03:
We were told, hey, the 81 machines are destroyed.

[00:27:44] Speaker 03:
There's a subsequent inspection in 2024 of the 81 machines.

[00:27:49] Speaker 02:
Okay.

[00:27:49] Speaker 02:
All right.

[00:27:50] Speaker 02:
OK.

[00:27:50] Speaker 02:
OK.

[00:27:51] Speaker 02:
I got it.

[00:27:51] Speaker 02:
I thought there was a gap there where you could have still filed.

[00:27:55] Speaker 02:
But I see now that would not have been timely.

[00:27:57] Speaker 02:
OK.

[00:27:58] Speaker 04:
All right.

[00:27:58] Speaker 04:
Thank you very much for your attention.

[00:27:59] Speaker 04:
Thank you.

[00:28:00] Speaker 04:
Thank you to both counsel for your arguments in the case.

[00:28:02] Speaker 04:
The case is now submitted.