tobacco under the st amendment to the commission agreement defendants paid thirteen million six hundred thousand dollars for escrow releases which have a future value of forty million dollars and were able to collect interest on the escrow releases until they mature financing institution it is undisputed by all the parties that the st amendment does not have a specific date for defendants to sell convey or transfer the asked for releases or a specific date for camerata to be paid defendants have well that was that was a question for declaratory relief your honor was whether there was a sell conveyance or transfer and it appears that there was a conveyance or transfer of the escrow releases on ten right the district court found that on joe i think th two thousand and ten there was a breach which is impossible because you can't have a breach before the contract is signed and he said half of the commission  then he said on the district court said on january st two thousand and twelve there was a conveyance for transfer and that because of that the nd half of the commission was due to the st amendment was some secret dealings between the defendants and a rd party in that there was a transfer room we got that just through discovery and we only got that as a result of the order granting the motion to compel it's not information in my client could have had at any closely as to what the court said is that there was a it did it as to the in the fraud allegation and what it said was that there was a breach prior to it actually it's pa the allegations that that that there would have been a breach at that point under that interpretation is what the court is saying yeah right not that there was one he wasn't making the merits to serve germination he has done understand understand well  not what you said go ahead well that the court has interpreted ing the complaint right and saying that what he's doing interpret that claim which we can do for ourselves but go ahead and saying that there was a fifty percent interest transfer which would be a breach i mean if you event for the remainder of plaintiff's commission occurred on january st two thousand and twelve when kelly capital's interest in the other fifty percent of the nd tranche of escrow releases and it's point six were nine percent interesting kelly esko were transferred h c f l not named in the complaint a c f l l c we didn't know about a c f l l c at the time of the filing complaint this was obtained through discovery we only got this information through after the court granted our motion to compel and once the court granted the motion to compel we got the documents that we could use in this case which showed that they're going to transfer the defendants filed a motion for summary judgment and what's important here is the burden of proof initially and i'd like to get to it but before you get to that yes you file the complaint in february two thousand and seventeen and i think most of these claims of of limitations of three year period and you know that the dates we've been discussing two thousand and ten or two thousand and twelve i mean how do you square that when it was more than three years i can square that the  the defendant's burden of proof on statue limitations to show that there isn't a cruel period which means a breach and that the stash limitations expired but in this record assumed just your version of what happened and use that as a basis so basically in your favor in terms of calculating the statue of limitation no and the court can't do that the court can't look at my opposition papers to the four i mean i think what's your complaint and a the complaint based on the complaint then pick the date but that's not what the courts at the court actually said no where in the face of the complaint can i find a triggering event which means you can't find a breach when the court says under this interpretation i met i've read that to mean under your interpretation under your version of the facts and the court then moved on from that predicate again if you're for the court to look at my opposition papers would be not what you can do you want is to jail why are we supposed to be looking at well they complained now not to complain what are the burden of proof the defendants have to present evidence for special imitations they presented the complaint they presented a declaration of michael kelly and they presented a transcript i filed motions to strike the transcript because it was a transcript of my client in a different case didn't rule i filed motions to strike the evidence except for the complaint essentially and certain paragraphs of the declaration i didn't move the strike so i'm not sure what the court lied on if the court is relying on the complaint alone let me step back i didn't move to strike the declaration of michael kelly which said that the sixty dollars to ninety dollars days allegation didn't become part of the complaint declaration michael kelly says there's been no breach we haven't transferred we haven't conveyed we don't know any money yet the this complaint is premature and the complaint does have the six thousand and ninety days in it it does have some something or other sixty to ninety days i'm saying that's one possibility another possibility is some two thousand and twelve date that comes that that's related to the virginia law so right what is that is that's what the one possible date right i mean you say it isn't a date but that's a possibility no ma'am it's not it's all right and then we're not going to get you on earth six thousand and ninety days is not a possible date ok and the reason why it's not a possible date is because all of the parties have said it's not a possible date the defendants have said in their declaration that's not a possible date of michael kelly the testimony of michael kelly on behalf of kelly capital said the sixty to ninety days is not a possible date and i'm not going to survey at least what the hypothetical possibilities are we're not going to get anywhere so for the breach of contract would have been january st two thousand and twelve that's our understanding and what happened on january st two thousand and twelve january st two thousand and twelve kelley escrow transferred the us c february a year later but the statue in patients is told during that period time the only period of time that we're looking at is eighteen days and why is the tone why why is it told it's told after the new jersey complain two thousand and twelve date then it's not timely filed you have to look at the discovery rule then the discovery rule applies did they should have they should they filed eighteen days earlier under the discovery will the district court never looked at that could district court never look to see whether they should have filed eighteen days earlier that's exactly right your honor and tell me how the discovery rule applies will that discovery rule would it be what you what you think there is a year that not because the discovery rule doesn't told the year it's the filing of the complaint in new jersey that tolls it for a year but that still leaves you deficient eighteen days as a question is why does the discovery why does the discovery rule apply to eighteen days we don't know that but the district court didn't consider it that your argument that's right they didn't consider it and we didn't have a decision that there was a transfer can advance or sale of escrow releases on january st two thousand and twelve until the court referenced it and we did did you become when when did that become the st time we saw the documents after the court granted our motion to compel we have your but you're saying  then that that this judge limitations didn't even start accruing because of the discovery rule until after you filed the complaint because you're saying you didn't believe in where that's right we didn't we didn't know her well that's a that's a little bit of a part of the reason for the declaratory if you didn't have a reason to believe there was a breach then why did file the complaint we follow declaratory relief part of the reason we followed declared her re  action was to say clear to a relief in new jersey no well i think that file that new jersey we also filed in california and we said we don't know what's going on with these escrow releases and the the defendant's position is we haven't and they still say that that january st two thousand and twelve conveyance to h c f they say that's not a transfer sale conveyance they still maintain til today that it there has been no sale no transfer or no conveyance if that's the case you can't reach a statue limitations it's premature you also can't breach of contract you also can't breach of contract and then i would have and if that's the case then i would if they haven't sold conveyed or transferred then we are then we're premature if that's the truth then we're premature and we get to file another day when they do sell transfer convey but that's why we're asking the declaratory relief action let us know that they has what they've done is it a transfer conveyance or sale they're saying it's not we're saying something's happened it's been years and dollars for a handshake introduction that resulted in the sale of the st tranche of ask for releases and when it came time for the nd tranche to be sold kelly capital went back to mr came around and said look under the commission agreement you would be owed this commission the day the nd tranche closes but we're using investor money on this deal we can't pay the commission if we don't agree to modify this we're not going to close the deal mr came out of said fine let's enter into this i'll agree to enter into the  st amendment and the terms are when these things are securitized or resold to a rd party in use or my commission will be do they sign that kelley escrow fund five which was h c f isn't mentioned in the complaint it doesn't come up and the reason is that mr came out of basically waited seven years and he decided well i want some more money out of out of kelly capital so he manufactured three different sets of  said in his opposition was well kelly capital technically was eight point zero zero six percent owner of kelley escrow and the deal with the investor was when they would resell the nd tranch e kelley escrow would become a fifty percent owner so it would get half of the deal and if they didn't he would lose that if you didn't sell it by january one two thousand and twelve it would lose that that reversionary fifty percent interest where it's this so if fifty percent disappear on january st two thousand and twelve because of the range went with the or regional deal is what you're saying so those  basically looking at everything it could to try to salvage some of these claims and it said ok well the opposition says that he lost this point six percent interest so the only thing i see that could possibly be a transfer seems like this is time barred yes that's what the district court held that's what you've advocated well one of the things that was just said was that there was a declaratory judgment action file but this wasn't a declar correct so they were there were the three series and the to be honest the declaratory relief questions are really just restatement of breach of contract claim ok so going back to new jersey is it true that the there was a complaint filed in new jersey addressing some of these same actions there was a complaint filed i do not know if it includes not part of the record i don't know if it included it declaratory judgment relief i think it had five causes of action and do you agree that that would have told the statute actually not i don't think california law supports that where w you have a case for that case that this says that it doesn't not told yeah because it seems intuitive to me that if somebody sues in another jurisdiction it would toll the statute of limitations meaning if you sue and then it turns out that that maybe that's the answer it was a race in the district court it was a raise your appeal your honor and frankly counsel admit it doesn't matter he still eighteen days short even if we told him so but if it were true and if it were considered then i think you would have to consider me maybe there's maybe the discovery rule applies to eighteen days maybe it doesn't but i think the real answer is it's waived it appears to me well very good your honor i have to answer any more questions on those issues but frankly these issues are what well the one mystery flight mystery here is why do we do with the fact that your ultimate claim is that it's never been solved so there really isn't a limitations period problem is just the merits problem you're out of the discourse never had to get to that issue there where looking at the claims as pled with regard to was there a bar and we don't worry about the fact that your ultimate position is that that there is actually premature or not like i mean because that's your ultimate position correct and  sitting here right now i think you would i frankly haven't really thought about that terribly deeply but yeah i think you would but again these are these aren't the issues that he's asked this court to consider he has eight questions that he wanted t as they are played are part and he's got a he's got to live with his pleading so that the questions he did ask this court to consider are st of all a lot of time was spent on this continuation of  discovery close he'd had sixteen months to conduct discovery in this case alone not even counting the new jersey case plus the a five and a half months after the m s j was filed to conduct discovery moreover we're looking at the face of the complaint and what what else i discover in the entire world is ever going to change what's played in the complaint well we're not looking i mean limitations princeton necessarily turn them in well look at the face of the complaint to define what the claims are not to determine the limit of the limitations prius right right i disagree your honor if you can tell from the complaint when the claims are crude just based on the face which we can in this case the complaint could be accurate i mean it could turn out after discovery that something else was the case but but but theoretically your honor but if he states well on july's theoretically i mean that it's pretty clear that yes that's not easy to get you the facts certainly but if you plead in the complaint as he did in this case i was induced to sign this allege to properly lead to when and how we discovered these claims but as judge nelson pointed out he didn't we still don't know how do you how do you figure this stuff out why did it take seven years what did you discover we keep going back to this virginia action this virginia actually virginia you know you we he spoke at length about this for oh yeah sorry sorry sorry which was a dispute between kelly capital and the tobacco company as to who of these taxes didn't have anything to do with mr cameron's claims he didn't learn anything as a burden of proof and again i think we just went through that we look at the complaint the district court did everything it possibly could it even looked at his his opposition and the evidence submitted there into try to stretch the discovery rules far as you could and it could only get to january one two thousand and twelve those claims are still barred rd question was the district court error by refusing to rule on his evident actions and thereafter base its decision on the contested evidence and i think it's just also pointed out that's not what happened he was looking at the complaint he was looking at mr kamerad as evidence in opposition there simply was not any contested evidence considered on the him astray the th issue was did the fact the defendant submitted evidence that there was no breach create a tribal issue of fact  and we kind of got into this on the on the argument the answer again is no simply because we argued that these are really sham claims and that there has been no breach that doesn't mean there's a tribal issue a fact as to when these claims are crude  you know the example is if he'll ledge that my client burglarized his home and stole the mona lisa we don't have to prove that he owns the home that it was burglarized that he owned the mona lisa or assuming for based on the face the complaint that those if you go through the complaint which we did in our opposition in our answering brief it's clear that really these claims of crude july th two thousand and ten under his theory in the complaint ok thank you very much thank you are  date he made that finding so it's not and i raise it in my my brief i explain how if it's not raising the brief but if you only get it for the st time by the order then you can address it as far as jury discovery he said just cover he was closed it was not close i still had time for discovery i had orders from judge shop where the magistrate judge continuing our discovery because they had abused his coverage i still had time remaining on discovery that's we've stipulated to continue the motion for summary judgment because he was still abusing discovery still hiding discovery and he got caught i called him he greed to continue the motion for summary judgment and then it got to that motion got denied i still had time left on my discovery so his statement that i didn't have time it's not true your time