short in that initial complaint allegations where the department wasn't given proper notices that wasn't allowing representation during interviews and it wasn't providing documents prior to second interviews as that case seated we sought immediate injunctive relief we were denied that really the ministry of appeal went forward and he was able to clear himself before the personnel board all charges and allegations were overturned recently the port district court of appeals for the state of california determined that the city's practices regarding providing documents before second interviews was also in violation of the law and that's in semantically softer cessation versus taken against him we believe those are retaliatory for him bringing the first lawsuit important poking his due process violations but prior to getting to the summary judgment motion the court knocked up the damage portions of the case on these present requirements i went through and looked at each of those and there was some element of damages middle east fairly small in some cases in each of them or they were filed after the lawsuit was filed and i i would ask you in what way did your cited in our paper says if the primary purpose of the lawsuit is them which is when we filed the primary purpose was not however when we then go in all the  and four counts four and five so these are new so i think you have an argument here that it's ridiculous to have said you should have that for you filed the lawsuit since those are about retaliation for thing that happened later you have something there but it seemed to me that when i looked at how you alleged how you had complied with the presentment requirement you said something about finally a tort claim but my understanding is you also have to say that the state didn't or the city denied it i didn't say anything about that so had the city denied it before you filed your amended complaint that added these tally claims i don't know if i recall correctly i met not sure it's in the record i don't know if we ever received a rejection letter from the city though isn't that a problem because i thought you had to present your claim and have it rejected before you file in court if the city doesn't respond within i believe forty five days in the code it's rejected as a matter of law so you didn't say in your complaint that you the forty five days had passed and it had been silent right i don't believe we did and that's where i believe we should have can i believe that the claim is filed sufficient time has lapsed because we had to go through a motion practice in order to do the mending and the city complained that part of the motion for leave should have been denied because the that we had knowledge months ago so that takes that's the port claim i believe we should have been granted leave on that we then go into the stand in answer to my colleague you're saying with respect to each of these resentment claims or maybe you should tell me which ones that you can and indicate in an amended pleading that there was no need to wait for an answer because forty five days had passed and to check that but that's only as to claims four and five accounts four and five that are about retaliation right so you also had been dismissed on count one which is the post our claim which was in the original complaint so that one really does have the timing problem i believe  had been obtained illegally but if we disagree with you on that say you would need to rely on this issue of when the timing was up when you filed the when you presented to the city it would only have get you out of four and five for a correct so if if we were supposed to file a tort claim before the original action then our damage claims under the original causes of action we won't be able to do damages we would still be able to pursue than jump to mandamus relief which has been filed in the state court after the  what do you want to count one of this point in regards to the khobar claims one of the issues in the court's decision was statements to the effect that the officer was an intel to representation during certain interviews we believe worry about that no the state court is put a stay on the state court action pending resolution because the district court included comments in his opinion regarding the triggering factor under probe are let me follow up on this so with respect to claim one you're saying even if we were to agree with you we don't need to remember to give you leave to amend on that because that's in the state court that's ok what about claims four and five is that the dismissed for lack of presentment i thought i may have my causes of action that's what the numbers in one was i believe a whistleblower which may be far i don't know four and five were both kind of retaliation like  understood it there's two types of retaliation are actually there's three there's retaliation for whistleblower under the labor code there's retaliation under khobar under government code section thirty three of four and then there's first amendment retaliation when i show is th the first fourth and fifth causes of action that had the presentment issues is that correct that sounds correct ok and with respect to count one you're saying that's in state court with respect to four and five you're saying those would be federal in any event but the the presentment issue of course is still there from your perspective the prison issue only addresses state law claims there is no prison issue on the federal class i understand that that's the nature of the claim but i'm just asking from our role in terms of what we do are you saying that if you were if you were to convince us that we should remain and as to four and five and and at the district court give you an opportunity to amend and that were we  that your basis for having a successful re pleading is that you didn't have to present any more than you did because you're only seeking say twenty five thousand dollars damage to it wasn't a primary purpose is that you're saying that what you're saying as far as the first the initial complaint that is correct we didn't have to do it because they were ancillary damages as far as two that many complaints we were seeking damages and we did compl in five then we're just posed to consider those straight up right that we're not talking about any state and continuing state action on that at all we're just going to look at the law and see whether we believe you complied with the present and even ok i'm running a little bit short time but on the fourth amendment we believe the department as they didn't tell you ordered that also to go into his residence retrieve evidence and that there is no basis for warrantless search in that case in regards to the computer not a workstation not a work computer so then he's ordered to go in the department claiming that's their property the video go and retrieve those videos and bring him back the next day or face terminations maybe i misunderstood i thought they wanted the camera that he had been carrying it are you saying that camera didn't have hit the videos on it anymore correct he had to download because this wasn't immediately after he downloaded like he that night and he said ok download it into ours they don't have a system for that services personal camera he downloaded him into his own computer at home that's why they gave him a full day to go back to his residence retrieve the videos and bring him back to the department or face it only bell if i recall correctly it only dealt with that portion of the total video that dealt with the specific instance that he was involved in and they wanted that evidence because it was part of the official documentation that sloop that's what the city is that's incorrect the location of the property was his residence but that's just because he put it there i mean it's a video taken at work during work time where is the expectation of privacy in that video taken at work regardless of where he then goes and puts it well let's use a different example let's say he had taken a weapon from work it's the city's property and it's used for work and he puts it at his residence the department can't just walk into his house and retrieve that weapon they would still need a search warrant to do so fine here from the response situation in this case is not unlike tom sawyer tasked with painting the white fans they look for someone else to do the work for them in four separate attempts to create a viable pleading the appellants have yet to do so on this issue of either the government tort claim or the claims under the one nine hundred eighty three allegations i addressing first the the government tort claims i mean it has been argued that that the have satisfied the government tort claim relative to the fourth and fifth cause of action and just to clarify for the court the cause of action at issue there are in fact the first cause of action for violation of hobart the fourth cause of action alleging retaliation in violation of hope are and the fifth cause of action which was acquittal blow or claim this third amended complaint was filed on december fifteen twenty fifteen the record will reflect that that was the same day that the amended tort claim which is in fact not in the record before the court was filed by the well he said he filed something in february and the district court said february was after the filing of the original complaint but to the extent that the amended complaint filed in december two thousand and fifteen was alleging things that happened in the meantime there's no way you could have found them at the city earlier so it seems like your brief and the district court have this timing illogic that makes no sense he can't possibly a filed them before they happened well there was there was a tort claim your honor i on feb twenty seventh two thousand and fifteen which in fact came after their first complaint which was another right after the first complaint but the first complaint didn't have the retaliation claims the retaliation claims are filed the december february's before december so he says he filed them before december now maybe he didn't and maybe you can prove that and have ruhleben sanctions for trying to say he did but why can't he meant to try to show that he complied with the present requirements so several problems here first they failed to plead in their third cause of action compliance with the government tort claim and what they say they filed something with the city i agree with you they don't say that they denied it but why isn't that something you can fix through amendment because because in fact even if even if they attempted to and now they cannot they cannot effectively amend to plead satisfaction of the government tort claim they filed that  at the same time that they filed their third amended complaint we don't know that from our record rate this is how you're going to argue in the district court if they ever do amend that they're false and get should get real eleven sanctions i think i mean how are we supposed to know whether you're telling us the truth about that and and the and this this points up exactly the problem of this string of deficient pleading for honor that that now for pleadings into this process  have been unable to to create a viable pleading they failed to plead in compliance with the government tort claim and they're here asking you for yet another opportunity it is a requirement it is an element of a proper cause of action not an affirmative defense to demonstrate that they have satisfied the government tort claim and so he's saying to us he's saying to us if i get a chance to amend i'll be able to amend it in an adequate way i guess you're pretty you're asserting that he can't how are we supposed to resolve that and and your honor the the fact that the that the whistleblower causes of action and the the violation of thirty three zero four that they have previously alleged could have and should have included those cause of action and and didn't is indicative of the ongoing defect well maybe i misunderstood so i thought he was saying four and five these whistleblower and retaliation claims had to do with retaliation for the filing of the original complaint in this case is that not your understanding of those claims that it is correct your honor that is that is not what what we understood from the the third amended how do you understand what those complaints are about what do you think there are about well and that is that is precisely the problem by filing  amended complaint without adequately addressing a tort claim they never afforded the city the opportunity to assess the validity of those claims and make an election whether they want i think you messed up because you didn't file these fourth and fifth presentment things before you filed the original complaint that makes no sense if they are arising out of the original complaint will you go with me that far do you disagree with that somehow now it's that was an invalid basis for the district court to have rejected for it to have dismissed without leave to amend cause of action four and five and less we have some other reason to then i left him and said you have another reason to that meant that the the that causes of action i now being attempted were never given the benefit of a of a proper government claim but he said but in february i mean if the complaint finally is is in the record and by me to because i didn't find it and i don't count that it matters a lot i think because we need to know if it's related to claims four and five or not so it would be good if we could pla analysis points out that there were no adverse employment actions suffered i and that i in fact the requirements under any versus coolly in each case had in fact been been and satisfied in the district courts analysis none of those none of those  ten alleged adverse employment actions games rise to relieve under the first amendment arguments that were being attempted by apollo's in short and ang the third trial of anger requires that that be shown you're saying that the district court properly found in analyzing the each of these ten bullet claims if you will that no adverse results were had been planted right correct so if we disagree with that and we need to send it back right well there's nothing in the record that indicates that he that any of those were like deter an employee from engaging in a protected activity if there's if there's one of those or honor that or several of them that are of particular concern i would be glad to address those  in each instance the balancing test on the considerations of whether that there was that the actions crit were motivated by retaliation show that that the alleged actions did not give rise to adverse employment actions did not still speech in a in a manner that  and the previous amendments had had been allowed and this was that the third cause of action and and their their final effort when when the guy defendant brought this motion for summary judgment as against these causes of action are you saying that the plaintiffs had an opportunity or occasions to respond to what all the only became the motion for summary judgment words that sending it back really wouldn't do any good because you've got all of the record all of the claims that could be made have been made in effect as to reason and to respond to th point yes your honor the while while the ten points were ultimately brought forward and in their their last gasp to keep the third amended complaint alive the fact is this pleading he failed to do that adequately to protect that claim it would be our position and yes your honor as to each of those ten and certainly as to this issue of the the government claim which is a an essential prerequisite which was not satisfied in this case so i tried to look at page twenty team and that is not something that was filed with the city in february so if you have a different thing it looks like your colleague is behind you with something else to point us to if i might  was received by the city on march third i thought it was february oh you're saying you didn't receive it to march correct its stamp received on march third and this goes back to our one four and five claims are we talking about complaint correct your honor that that it was filed in conjunction actually following the original complaint which was was filed in concurrently received with the attempted amendment of the  in the fourth cause of action is because of the original lawsuit so you cannot file the court claim before the review you agree with him that this is exhibit a two one three three is what you filed in february so if we read it and we think it's not a good presentment you're done my colleagues at smith was asking of opposing counsel so you have this retaliation claim in two different forms in counts four and five that you think were improperly dismissed for a present meant issues but you proceeded on retaliation claims under federal law at the summary judgment and lost if we agree that your federal retaliating claims were properly ruled against you then is there any reason to revive the state so they can be revived it will be the same evidence but i need to point out to the court that we received this motion for summary judgment they didn't meet the initial burden of prison admissible evidence it's a declaration council saying these are business records we were then given seven days to address all the sigma facts and provide our own and we did that as soon as we can we provided evidence to support our statement of facts in the statement of facts has citations to the evidence would appears the district court of peers is that he wanted that in the brief versus any other moving papers and six appears and i've looked at different districts very different circuits as to what is reviewed as far as the evidence the separate statement of facts was created so that you want to have that in have a five hundred page motion for summary judgment opposition you have your separate sigman facts and you reference it in your other papers but it's all part of the opposition papers so we did cite the evidence and i do believe the i think your honored referred to as the ten bore points we cited the evidence and present of the documents showing that these events occurred and i know i'm out of t but i'd like to find a point of if you look at the pelleas brief they agreed that these attacks occurred they just disagree on what they mean therefore that's a material question of fact as to for jury decide what do these facts mean and do they constitute retaliation or can they i think you're out of time any other question by my colleagues i think not thank you for your argument both of counsel th case just argued is submitted