tell you may proceed when you're ready good morning your honor is a mark rosenberg here for the apologists mr jonathan salaam says here on behalf of the county although i will be the only one arguing today and it's a pleasure to be before you today thank you for the opportunity for making it through this you know this case arises from a section one thousand nine hundred three claim against kitsap county and its medical contractor con mad for medical treatment received by an inmate in jail and a separate negligent design claim only against the county based on a trip and fall and council we've studied the record i guess i'd like to get right to the heart of it are we dealing with a special statute of limitation here or are generals that absolutely in the question of course plane the plaintiff in that case said well you should have told in one thousand nine hundred one claim because i had all these administrative procedures in the title seven claim and the court said these are two distinct causes of action and they they proceed on t cited the stone case seven thirty five f supp at three forty four and to mine you know four forty six us four seventy eight and johnson i actually suggested at one point that one thing a plaintiff could do would hundred three claim and ask for a stay but that's even more than is necessary in my practical experience i have these cases and most attorneys will file it well within the statute of limitations but i have had three or four cases where what the plaintiff does is they file in one thousand nine hundred three claimant include in the complaint something that says we filed a notice of tort claim we intend after the sixty day grace period to seek amendment and that's what they do they get a stipulation  get me for interrupting but i don't think there's any question that could have been done they go on it could have complied but they didn't so now what is the question his argument of course is that the statute the washington statute uses the word toll right right and so that that was a bit of a trap  but i think i come back to really to judge thomas question your time is ticking so could you focus on his question because we have authority in the ninth circuit it's lift i believe that this that the state statute is really a separate separate steps and limitations and that in johnson being very important and it comes up later in the second but the second line of cases of course started with the felder v casey case for eighty seven us one thirty one and it's got application in ninth circuit cases joshua v new your honor other circuits have also held that the state law tort claim is not i mean the the state law tort claim does not told in one nine hundred eighty three claim and of course that's what felder was looking at forget tolling for a minute if  would yes what do you mean that they followed because that's how i read them that they followed us so they've treated it as a separate statute of limitations that's different than telling well each each claim has its own statute of limitations and  and they proceed separately along their own lines and in each step the attorney needs to protect or the party needs to protect their interests by doing what is necessary at that particular time to just come down to the fact that if we conclude that the general well we're just talking about what is the a political time period the a political time period in washington is three years and of course there is no three years two it's a three ok and basically the courts of course look to the states there is no the legislature didn't provide a specific statute of limitations for section one thousand nine hundred three claims and so the cases have held that you the courts look to the general  tort statute in whatever state is the claim is being brought in in washington that's three years that would be consistent i think the eight and the tenth and the second circuit have agreed with our slivka decision which is that that you look at that what i'm calling the vanilla states tort statute of limitations and the other whatever the other presentation requirement is in the state ministry of requirement that you give notice first that is a different limitations period but i don't think that's true of the sixth and seventh circuit right i don't getting up a lot i don't have the cases in front of me at this time but ok my understanding is that if you i mean if you look to the u s supreme court the basic stat the basic  premises from the felder all the way down and it's been before the united states supreme court several times you know when the supreme court has ever said that we look to the general statute of limitation they have not address the specific issue that you're presenting to us under the washington statute well the ninth circuit did specifically in the joshua case where they identified four ninety six zero two and said in very unequivocal terms that for ninety six zero two zero has no application to section one nine hundred eighty three no application and all of the cases i mean i'm sure that mr boston will say well all of these early cases they benefitted the plaintiff but i would say that what the court should focus on is that these courts also said in unequivocal language there is no application and no application should mean no application i'd also and i'm going to reserve two minutes f rebuttal here i've got a few seconds here coming out you would also i assume i think you do in your brief point as to the southward case which is the only washington appellate decision that seems to be on point well there are of course the unpublished washington washing supreme court decision the best we've got is the division one opinion yes and it's important to note that the plaintiff in this case filed two separate lawsuits one in state court one in federal court exactly identical and the state court case stayed and so at some point they're going to have to follow southwick and dismissed the claim and so what does this court really want to enter a decision in which are doing exactly what felder didn't want and changing the court case that the plaintiff has filed which will proceed at some point my question counsel is whether you're arguing that southwick is controlling you know the trick question i'm just trying to make sure i understand your point southwick is not controlling although it did reach the correct decision i'd also they never got the notice and they never had the opportunity if you want to sit down you can save a little over a minute thank you your honor morning i'm anthony otto representing mr boston in this case as i was rereading the cases in preparation for today it struck me how exactly on point harding versus  there there was a decision causing some mischief and confusion in that when it was mangles versus city of orange which threw out the tolling statute of limitations along with under felder saying that it's not applicable in this case it a south work vs southwark southwick versus seattle that they say is throughout because felder applied both the requirement don't we have a different factual situation in that case so that was the case where there was a criminal charge pending against the one nine hundred eighty three plaintiff and nobody could know how long it was going to take to resolve it was criminal in that it was a tolling provision instead of saying a sixty days as in washington state plus five there it was as long as the criminal case was pending right which is an unknowable number that's the problem isn't that the day that we don't have any idea how long it's going to take to resolve what was  one forty eight arrest i think it was that's the telling as opposed to adding on a short little period for the administrative procedure that's the distinguishing feature is that not not truly because there it just told it until the criminal case was done and then the year statute desire to run all appeals to the california supreme court i mean that could take years but tension it could but then the mere statute of limitations would start wasn't that due to the concerns of statutes of limitation of spoiler of evidence and witnesses whose memories diminish with the passage of time you raise a good point because we're almost three years past the time this lawsuit was filed and why you guys argue about whether the sixty days that makes it different i understand the six that is we're not just governments have but i do think it is a an additional sixty days while we may know how long it is in fact it's a tolling provision the statute doesn't run as long as the county has sixty days to respond to the comp claim so as defined in the cases and actually the statute itself calls itself a tolling provision and defined in the cases it explains that the clock's temporarily stops and then starts again that's a classic tolling situation where there's an extension under state law of what the statute of limitations this extension for a short period of time sixty plus the five to necessary to file it so it's under state law there is we've met the statute the there is a couple a notice of claim to that defendant did you because they are one and the same with the county essentially as we've said we had it because there are a contractor for the county does that make them a state a state agency for state action purposes  applies to county employees volunteer even volunteers but why decision of plaintiff why don't you presented administrative claim to them if there are separate offend you serve them separately did you not we see them as an identity while you may you may think they are one in the same but why didn't you present him with an administrative claim if your position is that they're covered by the sixty day statute because we presented it to the county then why did you say serve them separately under your theory service on the county would be sufficient to enter judgment against the contractor i don't think the law would support that conclusion well if that's your conclusion then that's a pretty shoddy conclusion yeah i mean it's a basic you prince due process principle that the defendant has to have notice before you enter judgment and award damages against them and they had noticed when we filed the suit against them well the count you keep saying vague but we've got two separate defend represented by separate counsel here at the table counsel i think judge collins question is directly on point and i would really like to hear you just respond to it because commented is a different entity correct well they  didn't it is a different entity in their initial this response they didn't think so because they conceded that if we met the statute under if we met the statute it applied then we then we say the case and that was a concession by them early and i mean it's a differen dressed it as well as i can in the materials that ok while they have indemnified the county and the county can't delegate away their authority and then with the additional concession as they have in their in their initial responses how do you respond to south way southwick was a mistake it's wrong just as to the authority and how c r but you would agree that assuming that you don't have a viable federal claim and you do have a pending superior court action isn't spear her going to be bound myself it is not and i've explained it in my briefing it is a division one case where in division two but it is the only is not the only washington appellate decision it is but it's not binding into vision two it's only binding to the extent that it's persuasive and it's not persuasive because of all of the following cases in wyant in the federal district court would a superior court in kitsap county be in error if it followed southwick in the absence of a division two opinion adopting actually in pierce county filed it in a neighboring county right but i don't believe that they are bound it is not binding precedent on my question my question is would that be reversible error under washington appellate law no ok because it is only persuasive authority to the protect the federal remedy but that doesn't mean that the state can't extend also the jurisdiction through a statute of limitations tolling provision that they reasoning in holding harding vs galaxian is identical to what should happen here case self with was southwick was wrongly decided and not appealed as far as i can see but it is not binding on division two council here's my problem with your argument it strikes me is that even though this washington statute has that we're told in it it's not a it's a it's a sort of finite period that's tacked on to accommodate the administrative presentation requirement but it's not really a tolling i think that's something that judge thomas was hitting on earlier it's actually advantage lames processing statute it gives a short period of time for the putative defendant to investigate and perhaps the claim without need for litigation that's what i understand the purpose of the stopping the clock and will and something else is going to happen later that makes the clarke clock start again and and it and it may very well be that that's it and i think typically is an indefinite period of time as distinguish from a finite period of time a sixty day period a six month period depending on which state you're talking about requirement to present an administrative claim to governmental agency and allow it an opportunity to settle or not settle but the  basically whether it's a finite or an indefinite period of time that the time still stops and then starts again once the condition is met i don't see any distinction not at all in fact the cases that i've cited you see if i can find it talks about how exactly they told him provision applies and that the clock stops and then starts again after the lapse of the period that's that's polling in terms of holding parting versus galaxy on the difference there are only was that there was the criminal case had to be resolved in a as your honor states it could have been through appeals and all the way to the supreme court but still there's a year that will start it's told and then starts again when the criminal case is resolved in california is that bill was wrong pardon me why is still that's identical to what happened in silva and so isn't wrong it's a separate statute of limitations in washington state it's three years plus the time added on by the claims notice provision in sylva it was once your claim you have either that it was six months or two years depending on something that wasn't clear in the record so it was a standalone separate provision if in under the washington statute i'm down to three seconds no you're actually over but go ahead and finish it all in writing longer yeah under the washington statute if the claim notice provision was filed sixty days before then that statute would be told for the additional sixty days rosenberg we hear about a minute or so thank your honour's and several interesting things i thought the court was very astute first of all in discussing the difference between tolling and what happens in this administrative procedure and i would have to wonder what would happen if there was a complaint which had five or six different causes of action and each one had some kind of different administrative procedure that would really cloud up the issues and that's exactly what felder was trying to prevent when it tried to say we're making everything consistent that's why we're doing the problem is and you want to chance to respond the washington statute unfortunately has the word toll or tolling in it and so i think opposing counsel is one of his stronger arguments to me is that it's going to be a bit of a sand trap unsuspecting because of course one thousand and three doesn't have a separate cause of action or case loss as you look to the state and if you look at the state statute here there is that provision that i don't think is a tolling provision but it uses that word so what about that well i think that that this goes right back and i found it interesting that counsel agreed that silver applies here because if you look at the unequivocal language and still that says that the state law or state law special statute of limitations  says but i'm just wondering since you have two seconds do you want to answer this question about what about the washington statute yes i'm saying that even if it were a special you know a special statute of limitations that toll that it claims tolls the statute of limitations it still has no a pic ability to the one thousand nine hundred three claim under abundant legal authority and and i would also state that i think why it was wrong and in a number of reasons first of all because it wasn't a provision under the general statutes of limitations which i believe are under four sixteen and also because it claimed that what it was doing was pure federal procedure but it was not i mean what they did was they took a state law court case the south southwick said that this is a special statute of limitations and thereby found that it didn't tolls nine hundred eighty three when wyant disregarded that they were disregarding washington case law about a washington statute so the federal court if it's applying washington law for the specific cause of action should have followed southwick unless they could show as they said in their own opinion that the washington supreme court would have