circuit the courts recognize an exception and that exception is waiver the general rule precluding plain splitting does not apply the parties have agreed in terms or in a fact that the plaintiff me split his claim but the defendant has the federal case and state case both proceeded to paste the state case ended in the trial court but it wasn't completely over until the state supreme court denied i review if i got that right that is correct and at that time g t e your varieties and or whatever it is asserted court then refused to work declined to consider outwardly the ninth circuit's ruling with regard to harassment or discrimination the opinion is conspicuously silent and so it seems as though as near as we can tell no heat was paid to it and which is actually curious because obviously the title seven are related statues and see how it is modeled on title seven and so therefore the state courts have found that the federal rulings are compelling although not necessarily finding and yet there is no  unfortunately that there was unavailable i was in washington d c actually before the u s supreme court and so trial counsel was standing in my stead but what happened then this decision issued about at establish that they were not acquiescing in the parallel tracks for example seeking a state in the federal court until the resolution of the state court matter they could have asserted an affirmative defense of rescue to cut it granted it would have been premature but at least it would have been signaling to counsel that i don't understand that i don't understand what you just said it seems to me if i remember state law correctly they could not have obtained the stay of the see that are you are you saying they could have done two things both of which would have been few tile but i would never have realized i was they had done one of these futile things that they might have wanted one judgment to be the end of it well your honor i take issue whether state case and tried you're on federal case to a jury in the federal court could you not know we could not your honor because a to point a judgment had already been rendered on summary judgment and this is a state court eyes and if we had dismissed that action then it would have gone final and so from troubling to me that theory behind that you want to stay out of federal court but then you are there stand and i don't understand was concerned because the federal statute of limitations because of the time the ear evos see complete charge was filed you'll get a different length of structure the limitations in terms of reaching back for misconduct there was  the d m v h charge was filed approximately two years later the notion was to keep these matters separate running on separate tracks because they conceivably reached a different conduct or misconduct and additionally it was felt that the procedures that were available in the state court are more favorable to my client mr guinness and so what i just did want to point out is that in the they might not like spending all the money to defend two different courts instead of one court but there nothing they can do about it and then once they went in one place they try to take advantage of the when the other just isn't as  waiver would come about if there been something they should have been could have done and they didn't like putting in an answer and a race judicata half and defense but they couldn't because of the lack of finality i don't see what's the matter with well your honor i take issue that there was nothing that they could do i do believe that they could have made a motion to stay the federal litigation the state litigation was filed first and there i thought we had all these cases about duty to sit duty to proceed that you can't just whether those efforts would have been successful or not they allowed them to both proceed this court and here is to california state law in terms of resolution of applications of the doctrine of rescue the current california has adopted the restatement of law which is section twenty six of the restatement and that restatement adopts the notion that acquiescence constitutes a waiver and that's precisely what happened here thank you counsel thank you about why we were in two tracks and i was asked to give up g t e is right to have the title seven action proceed in federal court mr sherwin just said that they thought the state court forum was more favorable to th strong and his client decided they didn't want to waive their right to bring their spink court claims in state court but i think i am at a loss to comprehend anyone can say that we waived our right and in fact if you listen carefully to what he said we beyond my comprehension and also just pretty much christina snyder especially in footnote five of our opinion set forth exactly the chronology i remember mr sterling wasn't here i remember that i was and we had a very heated exchange out my view of the law and you had a contrary view of the law which i respect you felt that there were material issues of fact it was almost five weeks to the day where i went in front of a california state powell after your decision came down and to be very very honest with you at that point in time i thought that was a futile appearance i expected them to come to the same conclusion you get they did and it's also i think unfair and not accurate to say that that panel ignored what this court did in fact they did exactly the right thing they followed what you found with respect to retaliation because they felt it wouldn't be if it's not consistent with the integrity of the justice system federal law and one rises under state law but they remain discrimination harassment claims and mr starr was correct as harmony between the two statutes there was harmony but they're not identical i don't disagree with that you are but i do think that the federal court should tread hypothetical under certain circumstances i understand that but i at that point in time wasn't question enough to know which was going to end first and i said just i want to ask you different question we've talked about race you've got it we have exactly what she did and she said she made a finding to the effect that they were the identical issues factually and legally well factually need be identical that there are different standards i understand that but i do believe if you look at them closely and study  both forms are dealing with whether there was a genuine tribal issue a fact summary judgment and we saw it differently they thought differently they were bound by what we thought and i would suspect that many times we're not bound by what they say about federal that they asked both parties to brief the effect of this court's prior opinion on what they were about to do and i think both parties agreed at that point in time that with respect to retaliation there had been a specific finding that there was none and therefore the state court was bound by that played this for its part said that you made a finding to the effect that there were disputed issues of material fact we said that's you didn't do that but you but they weren't and they found that over the period of twenty five some years the incidents in question were sporadic and didn't rise to the level necessary to show either discrimination harassment and it seems to me tha it would be a travesty to the justice system to now be in a situation where a federal jury is going to be asked to ignore the findings that that court made which were formed by the california supreme court on the identical  issues i will agree with you that there are different legal standards with respect to adjudicating those identical factual issues but i your honor has conceded usually it's the state that is more employee friendly so we're in a situation where that that body of law which is more employee friendly has been analyzed by both the appellate court and the california supreme court both of which was exactly what i was getting is no prejudice and can be no prejudice because if i had given away the right of g t e to have title seven claims heard in federal court this case would never have been published because california supreme court would have affirmed what the appellate court didn't like on the grandest summary judgment we would never be here i think that they're asking you to reward what is gamesmanship at its best they file in state court they file in federal court that if you put the complaints side by side they're virtually identical so they claim that there is a different time period covered i remember that when they first told me that i have been doing this for thirty some years i hate to admit that i'm not old i don't claim to be the pope i'm not infallible i couldn't see it then and i don't see it now because of the don't the doctrine of continuing violation of the many questions that i can thank you can thank you thank you we used up your time but if you want to take thirty seconds go ahead the only issue i wanted to quickly address was the collateral estoppel issue that was not raised by t in its motion for summary judgment and nor did the district court rely on it in its ruling and so i don't believe it would be appropriate for this court to winter a decision on that basis but to the extent that this court is considering the application of the doctrine i is one of law and you determination is warranted to avoid an equitable administration of the law here we definitely have an inequitable administration of the law where we have a nice circuit decision which rules in one way constrain the evidence and we have a state court