own some land near san diego she had planned to build a housing to help on the land from own a school district wanted it for a school which was fine by her toilets how many school rooms how many houses in a development could be established and it more of course but she did she believe too when they said there weren't any she believes the jury believed them so even if we assume that there was discovery misconduct and that maybe even evidence was suppressed why doesn't collateral  and if you want to talk about collateral stop more than rest you dakota and under collateral stop a minor standing of california law is that california gives preclude of effect to earlier proceedings even when there suppression of evidence or other discovery misconduct and especially where those things could have been discovered in the earlier proceeding and you could have up hand the relief by seeking new trials or other avenues of relief from the earlier trials me that there's got to come a time consideration but i think what judge simon the same even assuming the district court made a mistake by analyzing this on race judicata grounds rather than collateral estoppel like can't we at this point with the record that we h sait issue preclusion at this point well i think that has a lot of fact issues about whether there there was fairness in in in the discovery process is remember well but that gets that gets back to other point which is california law still gives precludes if effect to final judgment because otherwise they'll be endless rounds of litigation even if there is some underlying misconduct we remember we're not trying to set aside the taking of the land refused to recognize a claim for intentional infliction of emotional distress based on little litigation misconduct that occurred in an earlier proceeding and the theory was that otherwise you're going to and under the civil rights as well under rico i think of we've already talked about whether or not those emotional distress damages may or may not become in a civil under one thousand nine hundred three the sapporo civil rights act claim i mean isn't that the same problem of you're seeking emotional distress caused by an alleged misconduct when if you take a look at earlier litigation with this misconduct and that could have been discovered but under collateral stoppel principles we're moving on the has to be finality to litigation now you're saying well it could be a violation of civil rights where you have suffered emotional distress because the the court system has not given you a fair opportunity we're just really little getting those things i mean looking at it  i wanted to emphasize the he can't holdings case that's california law twenty fifteen from the supreme court if it helps you on the she's now precluded from contending otherwise you can't prove that her property was worth more than that amount as a result of her claims necessarily fail because they all necessarily depend on the contention their property was what about her emotional distress claim  because even if she can't prove otherwise on the value because of collateral estoppel she now looks back on and says you know what i lost the trial because they put on or withheld evidence and misled the court misled me that caused me emotional distress therefore i bring in one thousand and three claim what's wrong with their nine hundred three claim is it taking slain in order to prove a takings claim you have to prove that your property was taken without just compensation so if she received her property was worth she necessarily receive just compensation so emotional damages would be consequential damages and they would be consequential to any violation of the constitution says you can recover if there were a takings she could also possibly recover emotional distress damages but if there's no one constitutional taking interest and her business or property interest that's at issue here is her land she could have suffered any injury to that business or property interest if she got exact with that land was worth which is one hundred fifty thousand dollars this quarter is how that subsequent financial cost she was before a jury should presented evidence trust and witnesses which is represented by an attorney a litigant suppose a discovery violation within that proceeding can't deprive her of due process and that's especially true because as your honor noted judgment is final and so if the plaintiff wants to recover in any way they must do so before the judgment is final that it's all the way back to the peak of income case in the eight hundred ninety s because there is of course an interest in preventing  judgment becomes final under california law how much time if any is allowed to seek to reopen the judgment on the grounds of basically intrinsic fraud or basically a  discovery abuse or suppression once the judgment is final i'm not sure your honor but certainly we're long past that point now but there is a there is some procedures in there in california there were after a judgment becomes final you then learn if you were then to learn that there was serious discovery abuse or suppression of evidence you could then ask if it reopened and ask the california trial judge for new trial there is a rule sixty be equivalent that that didn't work here because she had already peeled the judgment and when she again such a bring a new motion for a new trial i believe the proper procedure would have been person is her appeal returned to the district court which would then have jurisdiction again to make that equipment of sixty b that might have occurred and that was before i think was right around the time of the verdict and so she moved for a new trial on the basis of this caution and said look there must be percolation testing it must have been suppressed the trial court considered that motion and said  essentially you didn't want to you could have sought this information but you didn't you made a strategic decision not to because you want to rely on your earlier percolation testing and not some new percolation testing which could have either been favorable to you or not favorable to you  support that that's what this court relied on and concluding that nor pennington doctrine didn't preclude her suit at the summary judgment stage became clear that there was no evidence to support those so in response to the defendant's evidence suggesting that they did not actually didn't say anything about the existence of an actual written report indicating what happened in that testing he said it might if occurred so and of course kearney's attorneys were present at that deposition as well so that the same indication that it might have occurred that fact was never been any complete testing done since one thousand nine hundred and he had some reason to suspect the accuracy that i'm not going to be the jury on that case but it does seem that that least a fact question on his intent to misrepresent at least for the sham exception or pending dunham your honor i think i think there's a distinction between knowing the possibility that some testing results might exist and actually knowing that they do in fact exist and intending to suppress them i think perhaps there's business manager he was working alongside the district and was responsible for building a school on the land that was condemned that was previously owned by his kearney that may be different than the lawyers and in fully on the north pennington issue with respect to dr mccarthy i what i see from the plaintiff and appellant in this case is that they continue to rely on the allegations in this case rather than the actual evidence in this case of what dr mccarthy is allegedly to have done wrong the evidence in the case is that discovery with request was made to the district as part of this condemnation action dr mccarty gathered up all the materials that he was supposed to gather he sent them to the lawyers the perth test if you were never in the possession of the school district never in d architect who was really directing the building of the school had told the engineer that he didn't need to continue his work he was going to draft a report but he ended up not doing it and what concerns me is that the and that is simply not true and there is no evidence that dr mccarthy contacted the engineer at c t v ms kearney had a telephone conversation with the engineer and the engineer said i was told not to write a report but  testified to deposition that he believed that protesting had been done and he was asked what the results were and he said his it was his understanding that the test results show that there would be sufficient so that was and then he didn't appear at court at all during trial so in order for the north pennington doctrine to apply that have to be intentional misrepresentation there's no evidence of intentional misrepresentations made by dr mccarthy that w and the civil rights action claim he's a he's a separate area they're different we're we're not this is what rico requires injury to business or property what's the injury to business or property here the the amount of value what was what was w we think there's no question about that so the state court eminent domain trial got it wrong not only that they withheld the documents such that were never made available to the state court only after