against hip hop i think it's obvious from the record that the district court looking at the exact same set of facts that the l a superior court looked at read a whole series of inference is into the allegations of hip hop's third amended complaint and came to exactly the opposite determination as to what was properly alleged or not alleged in that amended complaint given the fact that we're talking about interpretation of california law with regard to this the late discovery it is just anomalous that the district court could say what the this is very implausible a explanation for the difference in date i don't know what you mean by a leak mistake you need to tell us more about why that was wrong to first allege in the state court case that the discovery was in april ok there your honor you raised here number one the district court decided there was no issue of judicial stoppel with regard to that original bank of america pleading for the april day i didn't have that but what he said was the court is left to speculate as to whether the discovery was in april or in may because there's no explanation in any of the pleadings the allegations as to how it was that the fraud was discovered well i would respectfully disagree with your honor's interpretation or at least the just records interpretation the way your honour's phrased it it's in paragraph fifty one fifty two the thirty minute complaint it's alleged that this rogers jackson fellow became the chief operating officer ms mashal his replacement on april fifteenth two thousand and twelve he didn't even take over operational control  military customer hip hop sold these energy drinks in the private sector as well but this am ham fizz co company was its largest military customer ok and it's important to remember bank records that this camera clark woman was asked to go recover in may not equal in may where ms mashal was bank records with chase and bank of america they were not hip hop bank records hip hop's bank records showed these these partial payments from supposedly and ham ms mashal would funnel the real payments from n hand into her bogus accounts with the different names and then she would have payments made to him so hip hop's only records showed oh ok we're going pay by this enhanced company it wasn't until mr jackson took over on april fifteenth we're only talking about a month's period of time here but it makes a difference because if one is within the three years and want to know i am clearly clear that's important but you asked how the fraud or the misdeeds came to him off the tension mr jackson i mean it's alleged in paragraphs if you want to fifty two of the thirty minute complaint that mr jackson could not access what was left as he puts it you were in effect i gather it was you is that correct that you were in effect sort of testifying and setting before the court factual material that was not reflected in the pleadings is that  was that a fair statement on the district court's part not exactly he that the judge fitzgerald asked a series of questions similar to what has been asked you this morning i filled in these blanks but the blanks are with reference to the pleadings itself the paragraphs of a thirty minute complaint and given that your honor raised that point i mean frankly it's sort of the third issue on the on the agenda here but even the district court acknowledged that there were facts that apparently would suffice to fill in the blanks in these pleadings and yet the district court said that when i can give you leave them in you know what facts would you allege in addition to the statement from the original complaint in state court that reads on april tenth two thousand and twelve when the process of removing items from the show's office hip hop's personnel found bank statements and records in the desk used by ms show during her employment with hip hop the statements and records caused hip hop's personnel to become suspicious that michele had embezzled phones belonging to plaint you what additional facts would well have in the state court proceedings there was frankly there was a declaration from the council who draft that original bank of america complained that this worley fellow and he says that was basically my date that that is not necessarily a factual representation and as it relates to the reads like a fax is not a legal argument the district court said you know how how did you discover this why didn't you offer that well i think we do operate as i said in paragraph fifty one fifty two the third man complaint it's clear that mr jackson but the other side moved in essence to dismiss right and you could have filed a declaration from the guy saying you know that's just wrong i  think that was a very good plan at a time but you didn't do that that's sure so the district court's left with these two inconsistent pleading one using a may day when using a probate and the district court saying i can't determine which of these two it is so therefore you have not plausibly allege that this case falls within the three years statute of limitations under the delayed discovery rule why is the district court wrong and on this record in making that conclude because frankly given the way your honor just phrase it plausibly pleaded a belated discovery well it can't it's got to be one of the other the other do they made it out well no that's not the best best we can say what we the best we can say is what is pleaded in the thirty minute complaint and what i discussed with judge fitzgerald at the hearing a year and a half ago the person who simply didn't happen in april is what you're saying there was no removal of items from the shows off of or found bank statements or records in the desk that she had used by any personal record by pop in april of two thousand and twelve after she quit or got they may well have gotten into her office which is actually the district court was locked up and she had the only keep that when they got in there yes they i'm sure they did remove records they didn't find ms miche aus bogus bank accounts however it wasn't until tomorrow of course and the basis for the final statement these statements and records cause h personnel that become suspicious that she'd embezzled fun how how did they reach that conclusion in april of two thousand and twelve after rifling through office wells mr worley said they may not have become suspicious of the actual embezzlement at that point i mean that's pretty strong language i mean that to me that's inquiry notice as far as the plaintiff is concerned that houston we have a problem so out right here and financial that or you know by the way ms mashallah had her own bank accounts and then mr jackson says you know what go get them but that's what the company alleged in its original complaint and los angeles county superior court the company allege what i read against bank of america still not that i don't know what to do with these allegations it can't be both once inside the statute of limitations one's outside the statute of limitations how does the district court resolve that dilemma well the district court resolved it by saying we're going to disregard april looking at the allegations of the third amended complaint as pleaded i still don't find them plausible and that's why we're here today or what additional fact if we if we sent this back to the district court and said you erred in giving hip hop a chance to further and its complaint what amendment would you make what additional facts would you allege today that you did not allege frankly not many i mean the the fact that the district court's order refers to are things like the records that were discovered in oust bank records not hip hop's records we made me want to make it clear and it was those records that camera clark advised to pop about in mid may that is what had at him that was one of the problems her records from the hip hop office were either returned to her by this beverly sorrels onno woman or she just took them the rose records however were not her bank account records those were company finance over company financials those show do you know of sales to n hamel look we got a little bit here so is it true that when they finally got into mashad office they found additional personal bank records no and i suppose that might be the one extra fact i think it's alleged here well these sort of bank records well that manson records in the desk use by m right but it was not until tomorrow clark was directed by mr jackson go to chase go to bank of america you're apparently on these accounts get the bank records aware of when it is three million dollars that we're talking about roughly you know what the insurance company pays now unfortunately insurance company hasn't paid a dime on this so why didn't they reported to the police  issue about the aiding and abetting whether that is a stand alone cause of action that would be so suffice even if the statue limitations issue were were dispensed with the district court and chase repeatedly refers to this california corporations code section which has absolutely nothing to do with this scenario twenty two zero seven says a corporation cannot be held liable for civil fines and penalties over a million dollars unless the acts were done by managing agents and whatnot that has nothing to do with this case there are no civil fines or penalties in play here ms cotton is alleged in the well it's alleged that she had she was either a branch manager or had power to determine the policies for the branch there in ladera heights and under the ultram our decision in california determining who would be a quote managing agent you know if they say it's a question of fact that that's not something that the district court can sit there and say well we're just going to ignore these allegations thank you very much yes thank  focus of the plaintiff on the knowledge of injury or the degree of suspicion is irrelevant because under no circumstances can did they meet the first element of the discovery rule they acknowledge at the front of their brief that this case is barred as of october two thousand and fourteen absent tolling under the discovery rule the discovery rule and just the general rule not the one under fraudulent concealment and nine b require specific detailed pleading of one the time and manner of discovery and two the inability to have not discovered earlier and here there is simply no explanation despite the efforts even today to explain the manner of discovery instead what this pleading does is just builds up to and enhances the ultimate mystery of the manner of discovery the records were stolen the computer was locked the records were unavailable and then sixty six days into the limitations period and not even considering the contradiction with the repeatedly plaid discovery date of april two thousand and twelve just six days into the limitations period pop they became aware of what the rest of them what was wrong with the analysis by the california superior superior court applying california law on those discovery doctrine was apparently you think that analysis was simply wrong as a correct i do and the reason is because it didn't any reasoning as to why the manner of discovery was properly pled the law in california law requires detailed pleading of the manner of discovery so that the court can reach element two of the discovery rule and assess whether the plaintiffs should have made the sky earlier there was a complete omission in the district court's order and of course as set forth in our greece the district court in the superior court's order and of course a set forth in our brief the district court was entitle to reassess this but the answer is complete omission of any reasoning as to how the plaintiff pled the manner of discovery so as i said there was just a build up to this mystery if the records were stolen and the computer was locked how did the plaintiff become aware and there is no answer over four  value of their home was x and that was the trigger for their knowledge and the court said realize does not explain how in this case realized is synonymous with become aware there is no explanation and no case before you suggests that the bald conclusion of becoming aware can possibly satisfy the detailed pleas requirement look in the paragraph fifty three of the complaint which reads on or about may nineteenth two thousand and twelve planned of became aware of records that indicated additional company accounts were maintained at bank of america and choice i'm a twenty one two thousand and twelve the company instructed temora clark an employee to obtain copies of bank accounts she was named the able to obtain the records and that alerted them to the problem what what what more was needed to satisfy the pleading standard is anything suggesting how they became aware but there's nothing that is the answer and that brings me brings well and that does not even consider the implausibility of the prior contradictory allegation which i don't believe was explained to they and has not been explained implication is that the lawyer made a mistake that he did he was just wrong i don't believe that that satisfies the requirement to plead specific facts explaining the contradiction if you can just say you're wrong it would have disarray the requirement to plead the  the time and manner of discovery and to plead some facts as to why it's plausible that the lawyer representing hip hop closer in time to when the records were discovered said repeatedly in court that the discovery was april twelfth why doesn't this create a genuine issue of material fact as to whether there was in fact delayed discovery because even without the contradiction let's take out the the prior pleading of discovery of april twelfth there is still no detailed pleading or any pleading of facts as to how the plaintiff became aware six days into the limitations period the court doesn't even need to contrast the april twelfth but the april as well yeah legation does say we discovered that there were accounts at bank of america and shays and we instructed an employee to go get the records of those accounts and when we looked at those records we realized that we had been the victim of an embezzlement isn't that  no no your honor because again there is there are no facts stating how they became aware instead there are allegations that would suggest they can't become aware locked computer stolen records and all of a sudden six days into the limitations period they become aware there is no there are no facts in the pleadings as to how they became aware and that is the manner of discovery requirement of course and why why does this detail matter so much what what what policy is served by requiring all of this detail are you arguing that you can't really evaluate the diligence of the company in pursuing the possibilit wrong without understanding more fully how they became aware and if we understand that perhaps they should have been aware earlier is that that's looked at that here yes that's basically it your honor the policy behind the discover rule is to encourage diligence so that plaintiffs prosecute cases before they become stale and the reason why it's so important is because the last pacifically requires detailed pleading of the manner of the discovered and  says that absent pleading the basis of discovery the trial court cannot determine when the plaintiffs had actual or presumptive knowledge of the alleged misrepresented misrepresentations and whether the plaintiff should have made the discovery sooner in other words you need proper facts as to the first element to properly assess the second element and that is lacking here and as to the second element as the district court note the second element is the inability to discover sooner and as the district court correctly noted the third amended complaint did not clearly explain why those records the chase and b of a records that plaintiff became aware of were not available for inspection sooner especially because ultimately they were available they were accessed allegedly shortly after the limitations period we just don't know how and that illustrates the the tying of element number one an element number two you need facts as to the manner of discovery in order to assess the diligence the suspicion of wrongdoing standard here is broad it is not tied to  particular claims it is based on whether the plaintiff should have known something was wrong and in paragraph fifty three fifty three of the third amended complaint the fact that rogers jackson the company at the time tells ms clark to go get the records shows that he was on inquiry notice but again while i believe we went on the inquiry notice element it's not even necessary to to rule because there are no facts as to the m discovery the first element this doesn't even get to fraudulent concealment which applies here because they allege it and that that makes the standard even harder because when fraudulent concealment is pled it's got to be pled with particularity and the elements are basically the same as the discovery rule but the pleading standard is that much higher for the reasons discussed we don't believe it's met and relatedly the concealment by one defendant the show does not toll the claims as to other defendants here chase that did not participate in the concealment now they argue cotton participated in the scheme but that's the underlying fraught two separate tolling or rather to combine tolling the other defendant had to have participated in the concealment of the claim and there are no facts well that cotton participated in that the s defraud those involved the creation of accounts that were close in to the legitimate cow and until you got the records for those all call and dummy accounts or nominee accounts judge tolman but that really goes to the underlying fraud and it can't be that that's how the conspirators concealed from hip hop at the time the fraud was being committed that the company was being a fraud actually they in those names and they further allege that cotton knew at the time she did that that she was facilitating a scheme to defraud for which she received a portion of the proceeds of the fraud i understand but because that relates primarily to the underlying fraud you'd never have a statute of limitations defense if if if that was enough in other words the  in the concealment of fraud as part and parcel of creating and executing the scheme in order to the fraud i understand your honor and i think i've made my point but in any event it doesn't matter because that doesn't relate to the time and manner of discovery or of the second element of the discovery rule the inability to have discovered sooner and briefly on the liability for aiding and abetting merton's referred to the corporation's code we don't even need to talk about that because both sides rely on the punitive damages that suit and cases to discuss whether  representative or alleged agent of a company can impute knowledge to the company and for that and they rely on the same cases the agent has to be a manager or an officer director or managing agent here we're talking about a branch manager at a local branch and there are no facts suggesting that she had the ability to affect corporate policy as the cases holding agents who are managing agents do and  ear which is the theory on which they rely to impute knowledge they're basically advocating an unprecedented deal a derivative liability squared theory which does not exist in the abetting and in fact where a defendant is required to have actual knowledge such as a trade secret misappropriate or like in the drug or case vicariously fikir it there can be no knowledge  of knowledge through vicarious liability theory because there has to be actual knowledge there wasn't there first circuit piece it wasn't bank of new england for circuit case that said you could attribute knowledge to the corporation from the acts of bank i'm just about out of time so i will ask the court to a farm i think that for pleading attempts and the rigorous questioning about what further facts could be played here show that the court certainly