gaza and to contain a cause of action for intentional infliction of emotional distress under california law and the murder was filed to that cause of action and the other cause of action but focusing on that one because that provides the basis for the claim of arrest you got a demur in the california court was filed on the grounds second order which is the one being appealed from now the court of appeal made its final determination in the california courts and held that the tumour was properly entered as to that cause of action why because as a result of the decision in two thousand and one one the decision that were alleging was obtained by jones or cried as a result of th the defendants owed no duty to the plaintiffs in that case in other words the conduct which the defendants are saying is the same  that we are alleging constitutes extrinsic fraud and has already been determined that firstly to us in the california courts in fact didn't involve any duty well it was the same claim if it involved a claim why is that the reason is real simple the reason is that the second cause of action into gaza into it was what it purported to be it was a cause of action under california law for intentional infliction of emotional distress the it was not the cause of action for extrinsic for the breaks go into detail on why that is what the distinctions are what elements were alleged and why in fact in  essentially was something that was alleged in the into guys into but what's alleged in in this action is not well being used as a witness because under california law you're permitted to use the declaration of a witness even if you don't provide his name to discover if you are trying to be unable to as they did here the fraud was the ability to make him available and the failure to do so intentionally with the purpose of your answer to my prior question is that all the matters in your in your first amended complaint the only thing the facts that are that are new learned since you guys in one two and three is are all contained in offered and what is it that you and what is it that you learned here that is new to this that we didn't know at the time yet that the that the witness well that the defendants could have made him available could have provided us with his address and made them available for a deposition we did not know that and that  and you don't think it's appropriate to bring into the court which the pro it was charles of inappropriate or it would have been appropriate right here in the diversity they had moved the callup to virginia i said in virginia at the time this action  specifically wrote that there was no duty the reason there was no duty according to the court of appeal is because this was the same cause of action that had been asserted in combating what was before there been an extra trial so the what we have is the court of appeal in california determining based upon the argument of the defense that because it actually doesn't until is not in fact a challenge to the decision of who doesn't want it's the same thousand was presented by me to judge kovar and he said judge it just isn't fair to permit the summary judgment to go forward unless we can get the guys deposition doing then that is saying the california court was unfair and because it was unfair it permitted from the defense to well committed an extr no i'm not saying i'm saying that what we knew at the time was that summary judgment was being ran it on the basis of a declaration ok a witness who had not been previously disclosed deposition they didn't give us an address claiming we later learned falsely that make the run able to produce it we didn't know about all we knew was that he hadn't been previously disclosed and  refused to provide his address because they said they did and that's all we know that isn't fraud the court specifically ruled it was a fraud we could not alleged fraud on the basis of evidence that the trial court not only did not consider the fraud is not in submitting a declaration of a witness whose identity had not previously been disclosed and not going on says that for us under a claim they didn't have the problem was not going to us his address or providing him when they in fact were able to we did not know that at the time just over did not know that at the time mr weiss told us at the time that was not the circumstance and we believed him and in many pages in the in the  if the new complaint that is the complaint in this case states the same facts and the former judgment you term of that these facts did not constitute a cause of action well that didn't happen what the court determined was not that they didn't say the cause of different facts which is that is the case here but demur to the first was the stain on the ground equally applicable to the second well clearly that isn't true here because the ground of of nouns of materials that have accrued had accrued over the years on this case i was trying to figure out where to start and then i realized probably the best place to start would be with judge cooper's order so that we hear about today since of course that's the that's the point and that's where i guess is that issue and in reading through her her order which i guess is a page eighty four of the appellant's excerpts of the record i'm struck by you know maybe i should be struck but it is i'm struck by the clarity of her analysis here identifies as one paragraph in his first amended complaint that provides new facts things that were not available in and not are you just prior prior briefs i don't see any difference frankly i mean if there's a particular plaza or sense complete fabrication and that he's of the no member seventy two thousand three just on the dates alone it sounds like there's there might be some new facts there but this was the one paragraph that he was that he was able to identify as a logic something new well february fifteenth two thousand and two to march one two thousand two including discussions with counsel for t m s now that would be me i assume frankly i have no recollection of speaking with m which makes it inappropriate for a decision on for example summary judgment well it may be disputed but i think that the question is whether or not it's material in looking at that stance that talks about those dates is plaintiff's learns facts sufficient to enable them to what i just read that that was not alleged where looks to me as if it would be in the first well it's only got like five discussed with witness tampering the severing the refusal to provide addresses of known witnesses including one whose false step declaration they submitted in support of a motion for summary judgment well we only submitted one declaration other than mine and that would that was real well velo ok subornation of perjury i mean i assume that means l well also because there was no other declaration in support of our motion for open print three  meet in discovers sponsors or provide the witnesses telephone number or address in response to valid discovers sponsors therefore i don't think that there's any other way to interpret these allegations as being virtually identical if not identical and so that gets back to my point about why i think that judge cooper's order is so  that the court in my view need look no further than then judge cooper's order to see the comparison she made in the see that there was no there's really no room for interpretation now i will say this and i know that this is a different group of justices that it isn't that we had when we were up here three years ago and at that point in time we were dealing with the river feldman doctrine  and just to touch briefly on on this and this is i guess to some asian by me which is that in light of just hooper's order here there's no doubt in my mind and i don't think there should be any doubt in anybody's mind if this is just a total rehash it was litigated into  sustaining that demur in the first place and for that matter by the court of appeal in california for up holding that then we get right back to the record feldman doctrine which is that you can't have a federal court in this instance sitting as essentially the next layer up from a from a state court in deciding whether or not that lower court made a wrong decision so in my mind it really comes down to  boils down to this either these allegations are barred by claim preclusion has just as judge cooper indicated or they're an attack on the state courts including using to for sustaining the demur and of holding in the first place in which case it's barred by river feldman thank  you well i'm sorry properly pled broad in this case in terms that is the judge who noted he's essentially put before numerous times in the state court but as i think judge cooper pointed out i think the allegations in this case  digressed from where they were in the state court some years the crunch point in this litigation occurred before iraq the case itself is pretty straightforward case of an accident on a ski run a plane to faced with a case like that had better be able to prove that the plaintiff can avoid the doctrine of assumption of risk by proving that there was something that the plaintiff did apart from just maintaining a ski run which caused the defendant's death there was some direct action by defendant employees something off that caused the death mr powell must have been aware of that fact when he filed this case in ninety eight ninety nine a summary judgment motion is just like a trial the facts remain for the court the l well declaration was before the court the time to defend the case is that if there's a declaration against you that says this accident occurred in a particular fashion it was counsel's job as he acknowledged to go out find out well and if you can refute his declaration and prove now we digressed at the time of the gacy and to pleading there were some pretty horrible allegations in this complaint of acts of fraud that mr l well wasn't a real person that the declaration was false phon and some other state of facts must have applied although we never find out what they are which caused this man's death and created liability in t m s well now we have backpedaled the motion to dismiss we have not only the pleadings we have an extensive declaration for mr powell and in his own brief i think it's rather shocking that he's saying that all the allegations in this complaint about moving bodies false declarations  counsel terrible fraud things that as he pointed out in his brief would constitute felonies such as that can see in the body the moving of a body or based on nothing his own brief there are no eye witnesses that he knows of to any of these allegations and now having previously alleged in the state court that the l well declaration was false either because it contains false information on which the court relied or because l well didn't exist in the first place paragraph think teen has now back pedal now mr l well does exist and i was taught that when crunch time occurs in litigation a summary judgment motion a trial much later eight years terrible allegations what does l well have to say that would have changed the result in the underlying case and that compels this court to take action and overrule to prior cases from the court of appeal and his answer i don't know i haven't deposed mr a law i think that pretty so much sums up the theoretical nature of this appeal and i think this case has been fully decided you alleged obstruction of justice you objected systematic corruption abuse of the process witness tampering false declaration of a nation of perjury why does that cover your complaint because none of them had anything to do with mr almost decoration they had what we don't have a rule eleven but i did not represent i did not represent to the just record anything about the truth of these allegations we have probable cause to believe in the truth of all of the allegations in the california complaint including the fact that the other decoration is false we base that upon the evidence that we accumulated you know as to how the incident occurred and the allegation of it's false is nothing more than in fact a denial of a of an allegation in the complaint if it were not false if we did not contend that we disagreed with the facts set forth in the oval decoration we wouldn't have been harmed obviously that was in the central element of even objecting to  closed to us or that or whether he was in fact a person who had been kept from us we knew at the time we filed this case or we had evidence to support a claim but what say we