i think that in this circumstance we did plead the statute of the statute of limitations had been told by the discovery rule if you didn't plead anything having to do with the timing or the manner or doesn't that mean that they are always perfectly within its rights to simply say what the statute of limitations has run period in that then puts the burden on you to come forward and say when in fact it look here's when the injury occurred and the statute they wasn't file within a year of it but that that discovery wasn't directed to the the statute of limitations issues that had nothing to do with the in one year later doesn't have anything to do with the statute of limitation i'm sorry i didn't hear it but i just loses me if it's there like here's when the stroke occurred and one year after that was whenever it was which is anywhere from several to fifteen years prior to filing the lawsuit into storage that's the end of the statute of limitations story that's not the end of the discovery exception to the statute of limitations and i think what's important to remember here is the separate birds of the time of trial know what various burn at the time of trial would be is to show exactly what just the statue of limitations issue which is all that they went to in their moving papers  part of the notice argument right so the plaintiffs had a complaint that was basically that that set up the issue it was impossible for those claims to have said well we didn't discover it until a year before our injury u ntil a year before we filed a complaint because the e p a they filed the complaint before that that even occurred before the e p a published their their findings so the plaintiff was sitting there with with an inconsistent pleading and so that pleading itself plus all of the evidence that the defendants put in their motion for summary judgment that was evidence that shifted the burden to the plaintiffs i guess one thing that's sort of difficult to understand that it's simply not evidence number one and number two that order doesn't apply to all the plaintiffs so if the defense really just puts nothing forward no evidence whatsoever on the discovery statute then the plaintiffs have no evidence or version of their own and the first time that that evidence came up as we all know is it is in reply i'm sure you're familiar with the briefs the first time they came up was in reply and what's telling is that the trial court first in its first  is it a form of will or not and it seems to me the heart of the problem is that you did not your complaint does not trigger the burden shift that you on and then it's just very straightforward and simple when the injury occurred when the complaint was filed that's that absent any contrary evidence but i think the complaint raises the some time for everybody thank god discovery room if the discovery room is not part of the statute of limitations for personal injury product liability cases like this one the plaintiff cited some cases where where discovery is included in the statue of limitations and begins the period running under this type of case in california law the discovery rule does not come into play unless the pla the plaintiff's response to our summary judgment motion yet just by our argument without any evidence yes if we assume that then it's been invoked and we respond with evidence and we did that if the plaintiff were going to try to offer evidence that it should have done so in a motion for some reply before she wrote instead of in a motion for reconsideration afterward here argue that the discovery rule the exception to the statue of limitations is just like an element of their flying and that fire had the burden balance in a go at the summary judgment stage normally the move moving already has to do enough to put the issue there and then the nonmoving party has to put in enough evidence to create a tribal issues so where does how does notice they understood the claims they understood plaintiff's allegations that the discovery statute had been told so essentially what you have at that point is an allegation in the complaint that is going on  challenged by the defense and i think that the case that best sets for this statement is is the current case which is the california taste on summary judgment and there  when challenged by the by the defense since the fence i did not challenge the notice pleading or the notice alligator scuse me the statute of limitations tolling by their summary judgment is that they