morning your honor  amount that the service could charge under their retainer these were pretty aware or pretty aware of those of what your goals were you're going to have you could ask the st question it doesn't seem to me as to the rescue to caught a question it doesn't seem to me that you even challenge that there's a fiat that the there was a final judgment on the merits of the mas mazar i and that's the way i don't challenge that there was a final judgment on the merits with regards well i didn't see anything in there about brevity between the parties oh no i'm not saying i i didn't finish and i apologize there are we're also expenses which were at issue here let me ask you this question let's go get back are we going to get substantially the same evidence the president the bizarre action i know you're on our w because we're talking about completely different claims then we're at issue in the zine they're well they took us out don't they to some extent involved be infringement of the same right not not not so it's both soon seek to recover damages based on attorney's fees improperly charge the borrowers under the same or similar and all documents right your honor this is  not a simple breach of contract action there or when you have other cause of action but with regard to the facts or on i would point out again that mr mazie there is no evidence that he was charged for any of the fees that are at issue here so based on that fact we're talking about fundamentally different claims here there is no evidence that mr mazie was true arge fees after his loan had in fact been paid off which weren't disclosed to him the only thing that was tried in the mazy class action with regard to attorney's fees was the question of whether attorneys fees were improperly shared with a non attorney outsource or that was the only question that was certified with regard to paternity and the only question that was litigated there is multiple mind circuit case the nd well but it seems to me that he and both of these cases the only difference is you're going for access fees and they didn't do it before not at all your honor well tried to tell me why your honor the fees and expenses were talking about here are fundamentally different there is no evidence that mr mazie was trying i just told you fees which were charged and not disclosed after pay off there was no evidence that mr mazie was charged for attorney's fees which were in excess of the contract that the defendants had with their own law firms it's simply a fundamentally different claim there is no evidence that mr mazie was charged for fees or expenses that were specifically prohibited by california law it's apples and oranges your honor there is just no similarity between the claims that we're talking about which are issue here so that's the st issue for why rest judicata simply cannot apply here because mr mazie the class representative could not have brought this number to appellants here you're not george the attorneys fees expand and expenses that issue until years five and has uniformly found that even if absent class members could bring their individual claims in a prior action and they could not hear rescued the kata does not apply to claims that were not and the reason is simple as the supreme court th circuit has said in addition to many other if unnamed parties to a class action required to raise every claim they had prior certified class action in class actions would ground to a hole in the rendered obsolete and that's precisely what the supreme court's and hoover with precisely what this court said in  the record demonstrates i don't know i guess i'd try to get us in the same boat because i i looked at what we had that have for rescue to caught up there were three elements one was identity of claims one final judgment on the merits of one pr and i didn't think you said anything about final judge it was a pretty so i was going then for identity of claims and it seems to me you're addressing that to some extent but in the messiah action the nucleus of the facts were that all similarly situated borrowers are not reading right now because i just want to make sure during the class period who sought to recover damages based on attorney's fees for a properly charged to borrow or were in excess of the fees which are allowed to be charged under the relevant contracts between the defendants and fidelity are between fed they all of the and another service provider so i'm trying to figure out why it is he's claimed seem to rise or fall with the resolution of the common questions of law or fact and those would could or war waged in mazar i your honor if number one even if you look at the nd aspect of what you just said that was not raised in madison i your honor let me let me well but it isn't a matter of whether it was it's a matter of whether it could have been you know your your honor i respectfully disagree number one number one i could not have been because mr maas the class representative could not have rocked these claims number two even looking at traditional rest judicata analysis the claims were which are issue here are fundamentally different than the claims were issues which were at issue in mazy and number three binding supreme court and th circuit precedent sense for the reasons that those courts have indicated and that i expressed that in the context of a class action  a unnamed class member does not and indeed cannot raise claims other than those which were actually certified because then there would be no sectioning as a class action the courts  expressly indicated that quote class actions are an exception to the rule against claims living so there are four independent bases based on controlling not and could not have been raised in the prior class action certified question i see that my time is up here i didn't want to get to get reserved time i well i guess we wait for want to hear me yes yes so i was what at what point did you go off i'm over my time because i didn't reserve five minutes or ok that's fine i think i heard you not ok so i attorney steves and then the specific cases that made it to trial was on the east like issue here are that class very similarly defined as the proposed class was in this case and we were also point in terms of an overlap of the last one hairs the description of the relationship between the deli and home out of that that is in the district court's certification or be clear not on the basis of taking that for its truth your arse but but take judicial notice of the scope of them as i action and the facts that will before them as i court if you compare that with the  preserved and must as it relates to the attorney the related claims your honor yes it will i will address that in a moment let me just say this your honor the ropes last front of the jury so so in effect so in effect you're suggesting that the rd amended complaint those filed in two thousand and ten and a certification in two thousand and thirteen inconsistent with this outcome those cases are distinguishing between class claims and clearly a class is bound to ours judgment trial and individual claims that have different so it really just brings us back to the question start with just a little bit about these new claims and legal theory this record from you would be prejudiced to the extent that you had notice of these late the claims of the opportunity to gather evidence i'm reading with respect to those claims you argue that these new claims you didn't have the chance to gather this evidence to defend against them what claims are theories asserted in this suit did you the unjust enrichment theory that they're leading with in this case gets away from the pretty problem the ones i had but it opens up a different area of discovery altogether which is claims of individual in fact in fear of the two million one thousand case will wide upon by the or the court stated it firing of the class action tolls the running of the individual claims of all putative class members and no claflin and is not hatfield which this court decided in two thousand and nine so it's the same so there can mean no question that equitable tolling applies because necessitated or not necessitated the subsequent action so what about more what are you going to do if more as a relates to that issue what is another more case class class certification the reason again is simple because if a an individual has to bring a case while a class has been if that's the case regard to a non certified last action here we have a case where the class actually received judgement so certainly with regard to the individual litigants equitable tolling applies with regard to the claim there is no indication in the complaint and there's nothing from which the court could have even determined as to when the unnamed class members claims even a rose much less when they were exhausted the court gave no one dallas just whatsoever not with regard to why the claims of unnamed class members and how weak the idea that the