r because the constitution guarantees a right to trial by jury it is our position that the parameters of rule fifty six are due limited by the constitution itself the jurisprudence of rule fifty six is and should be inflexible the rules are familiar there must be no genuine issues of material fact evidence must be viewed in the light most favorable to the nonmoving party where as here summary judgment is based upon an affirmative defense it is the movement burden to establish conclusively all elements of that defense and most importantly inferences regarding knowledge intent or state of mind must be resolved in favor of the non movement here the affirmative defense counsel is kind of sort of cut to the chase here the argument is that she didn't know at the time that she had this pending claim is the after she became a michael store manager which is relevant date because she was paid overtime should be two she became a store manager after she became a store manager she filed an amended schedule of current income which was completely accurate that was filed so close after the time she became a store manager that it's not even clear that she was owed any position is that she didn't know until september two thousand and eleven when she engaged counsel to bring a claim against michael that she actually had a client right it is my position that that is the actual fact and it is my position that under rule fifty six it must be presumed i guess that's a reasonable argument so let me go on then if i could because i think that's uncontested that the record that we wait a minute i haven't gotten to the question yet if i could please if she hadn't allowed that claim to be dismissed she would have had to disclose in bankruptcy right i don't think so either way the bankruptcy kept going on and she opposed the trustees motion to dismiss she would have had to don't know what the authority for that is but let me say this intent is an essential element for judicial stoppel how can you presume that she would have known that if the bankruptcy went on and if things were requested of the of the bankruptcy court that she would have had nothing has to be requested of the bankruptcy court we've got as i said and i'm not trying to be flip but this was the easy part if the bankruptcy had continued she's already filed suit right at this point alleging that she's got judicial acceptance by the bankruptcy court if the bankruptcy court never entered and it was that's not that we're not talking about the helen elements here we're talking about a separate duty under the bankruptcy code to ensure that the schedule of your assets and liabilities are true and correct at all material times during the pendency of the bankruptcy petition you're not answering judge kristen's question well i mean the answer is yes she had a duty to disclose you may not want to say that but you and i both know that that's what the answer is i have two things to say that firstly you say all material times no further orders were requested of the bankruptcy court isn't moment of obligation on behalf of the debtor to keep the court and the creditors  she had filed to petition asking in essence for an amendment to her bankruptcy plan because she wasn't able to make the payments yes you want it is certainly material and relevant to the court's consideration as to whether that claim that request is meritorious to find out what are your current assets are you in fact able to make these payments or is this more than you can handle right now those weren't current assets to them this is not the point you should be fighting here you should  saying of course she had a duty to disclose that once you file a lawsuit for crying out loud you should be getting the what the hard question is so that you can least find out what it is a you can try to and i'm willing to give you that that she didn't have notice of this claim i think it's entirely reasonable the layperson wouldn't know she had notice of claim until she consulted a lawyer in september of two thousand and eleven i think that is entirely reasonable and then she filed suit but there is no question counsel you're just going to go with me on as a i'm going to really lose credibility on my scorecard so you just let me finish place then she filed suit against michael's she's on notice ok and she has an obligation under my case law no question if you really could just get to my question it would help me so much then she's got an obligation if the bankruptcy claim had continued the petition had continued she would have had an obligation to disclose that that's my view of the law if you could just accept that so why don't we have a problem with her gaining an advantage by allowing the bankruptcy claim  so that's an absolute right under the bankruptcy code he wasn't requesting a discharge she allowed it to be dismissed she would oppose the dismissal earlier yes you are ok and i appreciate getting to the answer is is she's got to there's there has to be some indication that she gained an unfair advantage and that's what i'm trying to get and acceptance by the court and intent in her testimony was she didn't even know if the bankruptcy case was open because her husband handles that that us are but if it is i've got two competing concerns and i'm in alaska opposing counsel to address that and then i'm going to give up and just listen to what you both have to say but my concern is that on the one hand if that claim is dissin the civil claim meritorious and it does not go forward there's a competing concern here which is that the asset that the potential asset is not realized to to set so they're not available to pay her creditors in bankruptcy or otherwise if you want to speak to that we are again that the bankruptcy code says it any debtor at any time can dismiss without court approval thirteen zero seven b so if someone drops the bankruptcy they have a right to do that at any time in this particular case there is nothing to stop or creditors from pursuing that claim of several liquidated to money except that then don't know about it well they do actually because they all got a service copy of her notice to reopen do we have let's you want to talk about that and that would be helpful for me to understand what those equities are visa v the creditors who are owed money any critter's owed money they know she's out of bankruptcy they can pursue any assets she has any time  that's why it's important to mend the schedules do we have anything in our record to indicate that the folks who are were her creditors and i understand the mortgages for close so that's different but whatever those remaining claims are i don't know who they are i don't know whether they had notice could you received notice that hey i've got a claim against my own former employer yes you are thank you and yes your honor and i go back to your point about dismissal so is used i think i heard you say i want to make sure i got it right that a bank that a debtor is allowed to dismiss a bankruptcy case without court approval instantly it and so it's like a voluntary dismissal of a civil suit basically you don't have to get an order from a court thirteen zero seven subdivision b if yes your honor and if so  and there's no requirement to issue any sort of sort of report or play why should you explain what exactly so if i can there is one quote i have from this court's decision in just cool off describing the holding  up and talk about the fact that at her deposition she was put on notice very expressly because they asked the question did you amend could you give us your response about please if they had done what the rules of civil procedure require when they filed their amended answer after that if they pleaded judicial stoppel i would have been on notice and i would have looked at this i would learn something i never knew i know they didn't a plea there from the defense and the trial court even called it sandbagging yesterday but that we read bankruptcy in the early before the deposition when michael's afternoon raga tories have you ever been bankrupt having been a chapter seven bankruptcy lawyer many years ago myself many years ago i had a clear understanding that post petition wages were not property of the estate two years later briefing this appeal i learned that chapter thirteen which is a very unusual type of bankruptcy has a different rule that's why i wasn't put on notice if because it was dismissed for failure to make plant payments you can't even reopen it is there a time limit on how long it takes for somebody to help with the time limit after a dismissal for reopening i believe there's a one year timeline and then at the time of the deposition had the one year already gone by that's a tough question let me answer ok so immediately after she filed this action it's true her bankruptcy judge or banks your bankruptcy lawyer withdraws the opposition and allows it to be dismissed right why there was this there's this delay been getting the written order out yet so let's just talk about the bankruptcy courts are all decision of the bankruptcy court or a decision for dismissal is the relevant they'd had more than one year gone by before she had her deposition taken in the civil case between in other words between the oral dismissal and the deposition i think the answer to that question is no ok and my what i would take from that is again i was of the understanding that post magician wages are not a state property in the was relevant but aside from that if they don't what they're supposed to do plead it as an affirmative defense then i would have had notice within that one year and i could have looked at it at the time so we were sent back and i t thank you may it please the court jessie cripps on the half of michael stores your honors identified a few issues i'd like to touch upon several of them first in terms of whether or not miss it had knowledge of the claim of this notion that she may not have had knowledge of the claim the standard it's important remember is not whether she knew the law regarding her claim the standard is whether or not she had facts that we knew of facts that would potentially give rise to a container you're  with a summary judgment motion on here on an affirmative defense in which you have the burden of proof and you're in so what's the basis on which a district judge could probably put properly say that no reasonable fact finder which would probably be the judge on this could find that she wasn't on notice you basically had you basically had all she was she was working there what with all the facts that put her on notice before she consulted a lawyer that she had a claim in light of the answer that question i think you need to look to the jury instructions  twenty seven and to actually lay out the elements for an overtime claim well mass cancer that's it that those elements front over time claim are in that question whether overtime is or is not doing something judges go round number and juries go round and round round about it she's on notice right yes yes she is on the ok so then then then she allows the bankruptcy to be dismissed and opposing counsel has said she's entitled to do that and the reason i'm concerned about this if we have these competing concerns and talks about all of our case law talks about this our recognition of it's not something michaels is concerned about because you want to of course defeat this this litigation against your client but what about the creditors if that if the civil claim is allowed to go forward and that turns out to be meritorious then there's an asset available to pay her creditors if we if we dismiss that there won't be i don't know that that's actually true your honor i not because in this case the creditors were actually put on notice of the claim as mr ballard pointed out he asked for judicial notice of his motion to reopen the bankruptcy proceedings which was denied they were put on notice of the specific fact that her claim was dismissed just because she herself doesn't have you didn't play there from her defense i think that's uncontested and then and then michael's you know opposed her attempt to reopen in the bankruptcy court said you want to speak about that sure when it comes to the motion to reopen and that was not anything that was in front of the district court the district court can't be accused of abusing its discretion as the matter that were before it at that point time the fact is that she was that in two thousand and twelve she was the pows in july of two thousand and twelve that was less than a year from the day i think that it was like nine months or something like that that's right and it was less than a year and had she intended to reopen had she wanted to reopen within that one your period time she certainly could have done so she didn't do i mean you're in a pretty tough position though talking about other people not doing what they're supposed to do when they're supposed to do it why didn't why didn't the defendant assert this is an affirmative defense after the deposition well waited until the summary judgment motion which was quite a long time later well your honor we weren't actually  a separate order in which counsel was awarded fees for the entirety of his conduct on behalf of not only the plaintiffs the name plaintiffs but on behalf of the class as well we had asked that a twenty five percent reduction be taken for those fees by virtue of the fact that one of the four plaintiffs in the case had her claims dismissed and he said in that context he said well look no they had knowledge you had knowledge back in july of two thousand and twelve that she was because the question of whether or not this was raised as an affirmative defense or not was never before the district court counsel never never raise that argument it was waived to the extent that they have raised it one of the defenses to that argument in front of the court is that it's harmless error because they did have sufficient notice and we would have developed a record along those lines but i appreciate you talking fast and i would be too if i had to make this argument but you haven't asked certain questions about your the point is you're trying to indicate doctrine it is a doctrine that can be applied by the courts to this party without either party raising that as an affirmative defense well ok fair enough but let me i guess let me tell you why i'm asking about this so the district court talks about this good  standard and how the good face standard differs it's tougher on the plaintiff if the plaintiff hasn't gone back to try to amend the schedule that's right and so then so because she hadn't gone back to try to amend the schedule she had a tougher standard applied to her by the district court if you guys had raised the affirmative defense and planet and filed an amended answer whatever after the deposition and after you had all the facts that you rely on and some summary judgment motion she could have gone back to the bankruptcy court then that would have been within the one year to do that she could have tried to do this then she wouldn't have been you know shut out from doing that and she would have had a more relaxed good face standard applied to her by the district court so that's so tell me why that isn't a significant difference you're in the chapter thirteen proceedings it's whole burden to be open and honest with their groups in court it's high to reopen proceedings to apprise the court to the extent whether we raise that issue or not that would have been t anybody but if i'm up if i'm a litigant i mean and this stuff has come up at the deposition and somebody has asked will the general raises in the bankruptcy court the depositions over the civil case goes on and you don't come in and raise the affirmative defense why doesn't that tell your average litigant in your average lawyer you've decided it's not a real issue and so i don't have to go back and do anything because my bankruptcy case is over it doesn't matter and if you're enough for it that's precisely because the issue of judicial or stop will and the principle surrounding failure to disclose in a bankruptcy proceeding can be raised serious parte by a district court judge you can't simply assume by virtue of the fact that you failed to disclose have it corrected those disclosures hasn't been raised in the affirmative defense that it won't otherwise and stop your claims because it is an issue that is your court you have a much stronger argument of michael's hadn't opposed her attempt to reopen and disclose i'm sorry your honor you would have a much stronger argument if you hadn't tried if michael's hadn't opposed her attempt to reopen by well i actually think the attempt to reopen it is irrelevant in this case again because the question is whether or not the district court abused its discretion in this case the motion to reopen did not happen until after the opening brief in this appeal had actually been filed it happened years after it should have happened and certainly much longer after the district court entered its air into that sort of their district court could not have erred  failing to consider something that was not even before it she had an opportunity to move to reopen but even so what's the unfair advantage that she got after the point in time she realized that she had to wage an hour climb well again your honor i would like to take just just take it as a given at this point i mean this called a hypothetical question of hypothetically she didn't know that she had a claim until she consulted a lawyer in september whatever year it was did she get any it unfair advantage after that point from not disclosing this claim to the bankruptcy court and if so what was it now i think she did get it under manage i think hamilton tells us that you don't actually have to have an unfair advantage because hamilton is a case macalso could you just answer the question what was the unfair advantage of the unfair advantage is that any bankruptcy proceedings as hamilton points out the creditors and the court rely on the schedules to determine what actions they are going to take in the matter at that point in time you have a bankruptcy stay in place you have an order confirming a plan in place that it was modified there was a plan in place he was making payments then to creditors such as a franchise tax board and the i r s now the after she became aware of the lawsuit and without disclosing those claims for the creditor so for example even though it's so is it is it that it had she come for is your position that had she come forward and said hey i've got this suit that i just filed in september of two thousand and eleven that the trustee may have withdrawn its motion to dismiss to see and to take the position instead hey hey let's let's play this out and see if it ever results in some money that's absolute that's one option that could have been pursued but again the creditors in the court as they have court hamilton said the creditors in court rely upon the information we don't know what actions they would have taken but their options are based on the information that they're give all i know we don't know what actions they would have taken but the one i just spun out is the only one i can think of that can possibly be deemed a benefit to her otherwise i don't see it and so i'm missing one please sure sure and i think one other auction that they could have taken for example is that they could have moved to lift the stay so for example doesn't have any money yet she has had a claim what would she have it if that's right she had a claim but they could have moved to lift the stay under those circumstances they could have negotiated a higher payment amount which they have any money she just had a claim again when the problem was they were moving to dismiss because she wasn't making payments so that he gets to be the blood from that turn up problem i can't see that would be the case that just because she filed a claim they would say aha now she's able to pay it well well you know they could have she did have a job at the time so they could have actually sought a lien on the assets  against the potential claim so for example in a bankruptcy proceeding to the extent the assets haven't accrued they are still contingent at the time the state can be lifted such that you can varnish wages against the potential recovery of the future claim and particularly true in combination with a scenario in which they actually said well let's let that claim go forward again ask a question about something mr gallo said before of another time he said that under bankruptcy law i think you stated thirteen zero seven the year something  that a debtor can essentially voluntarily dismiss the bankruptcy at any point in time doesn't require court approval is that right degree that you disagree with i don't i don't think that's right i think they can dismiss a claim at any time but i think it requires an order of the court to eliminate the plan and to remove the state it's in place and so again here so you can just it's not like a rule forty one a dismissal an in a district court case where you can just file a piece of paper and says i hereby dismiss no your honor and in fact i so if you look at the timeline she retains counsel in september of two thousand and eleven and it wasn't until october of two thousand and eleven that the bankruptcy court granted the motion to dismiss as that's on e r five forty seven right and in that period of time remember it's important she continued to have the benefit of this day she continued to have you know what the reason for the delay was between the oral dismissal and the written order it takes like a year or something like that right between october of two thousand and eleven and november of two thousand  twelve i don't know because there's no question that the bankruptcy court orally granted the motion and i told her twenty eleven right that's clear right it was october twenty fifth two thousand and eleven you're right and so do we don't have we don't know why it took a year to get the word thirteen months to get the order and we don't  in that in the few minutes i have remaining i'd like to address the question briefly of the knowledge of the claim your honor if if we look at haley and hamilton and they focus on whether or not there was knowledge of facts giving rise to a potential cause of action i pointed to q c twenty seven zero two there are four elements to it over time positive action that's four elements are you performed work overtime was worked no overtime was paid and the amount of damage not that easy i mean it's misclassification case right sure ok and now the question of whether somebody is classified as properly classified as exempt are not exempt isn't like something you can look at a piece of paper and say here it is it's complicated i mean i was a district my point is that you go to work for somebody they call you a manager they tell you here's your salary you don't get overtime it's not a simple proposition for somebody to be on notice of the facts that would give rise to a wage in our claim under the f s a or the california equivalent to that it just doesn't make sense to it except in this case that she alleges it was undisputed fact in this case before the district court that she had worked physical manual labor throughout the time of her point that in and out itself defeats the exemption and that's knowledge of th awareness of whether that particular fact is a significant thing or not is not something that would be obvious to your average jane but and your honor if i could just answer that question i see amount of time go ahead but the point i was trying to make is that the question in  hamilton and hate and enrico supplants is not knowledge of a legal claim it's knowledge of facts that could potentially give rise to a legal claim and the fact that you are working in physical manual labor for the majority of the time isn't ever tell for a fact that gives a legal claim it's no different for example than the fact that if i know i've won won the lottery i don't need to know the statutes of the case law or the or that specific rights that i can enforce legally to a pain that i know facts that could potentially give rise to a legal claim that's what hey focused on hamilton focused on and really coastal plains focused on and and that that was our so i appreciate the time thank you very much  you have about a minute and a half for me to there's one point of law on which there's disagreement and that's whether one can dismiss summarily my understanding thirteen of sevent one can i have a vote record what she said in answer to an earlier question from judge conelly that it was like a federal rule civil procedure forty one a that's exactly what i just said it well forty one a if an answer has been filed you can't just assume that that was going to be my next question i mean having this don't have the code in front of me but i mean we can check yet we but i guess that i'm if i'm wrong i'll be surprised it's just dismissible at the at the debtors option the question so then the question is will that she somehow benefit between september and october or from the automatic stay my understanding is that she had an unproven disputed claim against michaels my understanding of the law is you can't levy on a lawsuit now but you could choose to just let the kite that that case go seven b dismissal i don't know i think the only communication i ever had with that wire was when i later were tamed her to file a motion to reopen after i had to go find her after the summary judgment proceedings which would have been done two years earlier if they'd both pleaded the affirmative