the morning they please the court i am philip bosch appearing for full x golf industries inc the appellate we have somewhat of an unusual situation here for for me in the sense that we're quoting the court to itself on a case involving statute limitations that the court has already ruled upon previously and it's based on one document that i'm going to get to in a minute but i'd really like to start with the taking of the facts most favorable to my side and that is that for starters oh ties general manager lied in december of two thousand and five of the nature of the lie is fleshed out in the record but pretending to take the side of full lex and saying that they were no longer going to be buying the product from ellis purposes of determining the timing of several reasons one is that the letter if you look at the date of the letter it's august twenty eighth two thousand and six and the  court below held that the only reasonable inference that you could draw from a letter dated october august twenty two thousand and six was that they had notice of something in the prior year  five that's more than a leap of faith there's not even the most reasonable inference it's not the only in france but it's not the most reasonable inference when people are upset about things it's a reasonable inference to suggest that they they became aware of something much closer in time to the actual date of the complaint not the letter can't possibly be indicate it says nowhere on its face anything about suspicion of the  in two thousand and five and i would say that this whole issue what we're really talking about and i hate to go back with what you've already said but it seems to me that i got a panel of this court has already said you cannot rule on statute limitations in this particular case because there's issues of material fact that are there and so go back and have a trial or go back and take some more evidence or go back and do something because on the evidence that's in the record at that point there's not enough to say the statute of limitations is a good defense now we got one thing that came in since then the letter of august twenty two thousand and six now i don't want to be mean but it it was a surprise to me that the district court concluded that this was new and substantially different so i looked at what did the district court say why was it new and substantially different unless i'm wrong there is no basis for that conclusion you agree i do agree so if i read the letter now i've got to say if i understand it that the letter itself disposes of material issues or of issues of material fact that the earlier powell said there were so i've got to find in the letter something that disposes of it in your mind is there any way to say this letter says that full ixnay knew that o t a had engaged in misconduct no quite to the contrary it was only mentioned three times in the letter and the first time it's mentioned if it's as the otaku said that of course the agency fees should be paid and then again that e r three  zero toss as of course the agency fees must be paid as this is an international business agreement and then the last time otoh was mentioned that actually it's the first time in the yard to ninety seven it's states that in two thousand and five gave up its plans to manufacture outside the relationship when threatened actually two thousand and four when threatened by phone so you look here and you see not only does the letter not even mention any for any fraud or lie but there's absolutely nothing to put disposes the issues of material fact and at that point do i even have to reach the second part you meant no you don't your honor we did we did show several things that  indicate that it was not raised for the first time on appeal because judge real had and this was the supplemental record of four thirty judge will had before him as this court had before it thousands of pages and one of the things that it had before it was the letter dated october twenty eighth two thousand and six which was the summary of this longer letter and so it was attached to the motion for summary judgment that this court reverse so so and then i absolutely wouldn't have to get into the award of attorney's fees yeah absolutely would not know it all runs down to does the august twenty two thousand and six letter do anything about the issue my court has already says has already said there are issues of material fact no what i would say is that is slightly different slightly different is that the first time otoh i was trying to carry water for not only itself but for alice m r i ls m r i is out now so we look at now the letter with respect if you completely disagree where do i find the explanation at the august twenty two thousand and six letter was new and substantially different in the district court's opinion well it's new  want to know why or do i find it in the district court's opinion because it's the district court i'm reviewing not your good argument you want to make now what is the language in that district court opinion  it's new and different epidemics question they found it new and different but no question i don't have the slightest idea why he said that well if you look at your honour's at e r fourteen in the district court's opinion and if you look at paragraph twenty judge real does identify the language suggesting that the december thirty one two thousand and five letter and the district court judge is stating here that in the letter full x itself admits it knew at all times that's not what the well it says falsely and covertly ls summer i was still manufacturing products resulting in a breach of contract in a public fraud right and it doesn't fade filmic that made it anything well it's full x s own letter and what the judge is saying is the letter can only be read to mean that full x never believed that l s m r i and otoh had stopped doing business together it seems a tough job for me to say that the district court had any good knowledge about that that i couldn't have and yet this is a letter it's a letter written one could have had a hearing which everybody thought the good judge would do and as herman what is there about this august twenty letter that goes one way or the other everybody could have had a chance to explain and cross examine and come to some idea about what and why but instead he jumps to conclusions that's the reason i don't think there's a basis he jumps to conclusions and therefore i said to myself why do i follow that why not have a hearing judge why not find out what that letter really says and if it has any significance or not well let me let me put it this way your honor part of it is you're trying to take that august letter in isolation no and i'm trying to take that august letter and see whether it is new or whether it is different but the reason your honor that you have to look at the totality is because the last time when i stood here we argued statute of limitations in two thousand and twelve they conceded and the record is undisputed they were on notice they were aware of the alleged wrongful conduct fraudulent conduct you got april two thousand and five the record is undisputed that full xs officer admits he was aware june june thirtieth oct fourteenth december two they repeatedly threaten  reason at the last hearing for the ninth circuit on this issue that they got a reprieve and they got to go back down was solely because they said well in december of zero five we may have been on notice until we were mr reacted by the general manager we were told that they were spin no longer doing business it was that one issue that is pamela's theater with an issue of fact on disk which w preclude summary judgment on the on timeliness so why are we lie is it any different now because we didn't have the august twentieth letter once don't know that the august twentieth letter first of all i don't know whether it's new and different because as coun suggested i'm not sure you didn't have something in the record other than the august twenty which may have summarized the august when he later let me address a or let me address that your honor may address that have f one issue the second issue is i read the letter i'm not sure in reading it that it answers the question you think it answers and if i to be in judge rio i just said well if have a hearing but he didn't need to have a hearing your honor and the lower court says i understand is to know for summary judgment but for reviewing whether or not the district court's findings as to whether the plaintiff was on notice for statue and purposes is a mix question of law in fact it's actually reviewed under clear error not with the overlay of trying to avoid the law of the case well but let me let me address why the law of the case does not apply it is correct and by the way they didn't put it in the record but it is correct there was this three page summary but the key distinction and why the court of appeal last time couldn't rely on it frankly why we couldn't rely on it is because there was a critical error in the date in the cover letter if you look at the submission that they put in front of your honor's that letter the cover letter and the reason why it never became an issue the first time is because you are f c r four three one it sa the second but the proffered no evidence it was their obligation under the law once we had proffered that they were on notice the law says they have the burden of proof is the plaintiff to come forward and proffer new evidence assessing whether or not he was correct what their standard to reveal if you think it's i think it's clear air and if you look at bell is of a factual determination well it's a mixed question  legal decision whether this is new well but the determination under the visitor underlying facts you have to look at he could tell me all about those facts he could tell me why he determined that and what the situation was and give me basis but my warrant worry was he didn't and therefore i didn't know whether they help him or not but your honor there was there was nothing that the plaintiffs introduced into the record once we surfaced and we asked for permission filing new summary judgment motion based on this new nine page letter which is significantly different it does offer much more x the question if you say if the only different that's what he had to determine and the other side didn't have to put in anything for that determination still to be at issue but your honor once their reliance entirely problem that i have with this with all of this is this where on summary judgment in my book the district court on summary judgment has to give all deference to this party to the nonmoving party on summary judgment whatever you put in the record if  and first of all it has to be determined it's new and it's different in order to give it a minute and he makes that determination without explanation and then he has to give all deference to the other side when i read that letter it does not say what you would suggest it says in fact it's questionable be what it says at that point i'm saying to myself how do i affirm the good judge i want to affirm the good judge i was in his spot many times and wanted to keep not the ninth circuit because they were my director of view but my court of appeals in idaho off my back i wanted to give them what they needed to that i could make that decision and he didn't and i kept saying how do i help you judge but your honor there's nothing in the record that they put in to address this key question like i say you look at the totality of the record and it is clear they admitted they were on notice and aware you never get into discovery rule huling concealment all these other issues unless they proffer affirmative evidence which they did not do in opposing our summary judgment motion as to some change in knowledge between december of zero five when they're still writing is presenting new evidence and this was first of all got to have the ability to give the new evidence and different and you're addressing something my panel which i'm bound by says there is an issue of material fact on this question of summary judgment and now i get this evidence which somebody says is new and it's different and he doesn't tell me why and then he proceeds to tell me what's in the letter which i don't necessarily agree with on summary judgment where he s'posed to be giving every benefit of the doubt to the nonmoving party the nonliving party here your honor didn't ask for an evidentiary hearing they could have done that well if they even if they didn't have an evidentiary hearing on summary judgment i'm going to go against you because i have to give every bit of for the doubt to him well i respect your honor i think on this mix question of law where it's a clear air standard you may have come to a different conclusion but in this case i don't see how one summer heritage month we're on summary judgment you have got to show beyond reasonable it cannot be a question of fact this letter did not take away from what was the ultimate issue it only was there and i could read it totally different and giving him every benefit of the doubt i did read it different and i don't think he should have issued the month summary judgment well we we respectfully disagree i understand that but i'm as trying to say what the standards of review are and why i came down and that's why i want to question you i'm not trying to say your arguments aren't good but on my standard to review what do i do well but what i would suggest your honour's is if you look at the case law if you look and apply the california statute limitation happen no i didn't mean it but i'm saying if you look at the language in jolly if you look at the language in norgaard and then your honor after we were assigned the panel i looked and saw that you for example wrote an opinion in platte electric interpretating jolley in two thousand and eight and those cases are all clear read em under the california court of appeal as is clear that once the plaintiff has an awareness of the conduct then there is you don't apply these additional doctrines the only way they get to remain alive with their claims because they filed too many years too late is if you either apply the discovery rule or fraudulent concealment on this record when you look at the totality of the evidence i don't see how when they've not introduced any new declaration they didn't produce a new declaration in response to this new motion for summary judgment that we've brought to even begin to try to address the august twent well we will we certainly it's our position your honor says i wrap up that we believe the district court ruled correctly believe that the only question that remained after the last hearing before this court was was there in an issue of fact after december of two thousand and five the only evidence we have in the record now is this august twenty eighth two thousand and six letter they didn't put in any new evidence briefly your honor this is what do you think is the standard of review in this case i think it's done over why because you have a summary judgment you have the reason why is i suppose when a summary judgment is made and you know that the findings of fact have been presented by counsel without hearing and executed and this is the third time this has happened on the same situation third summary judgment that has been sent potentially sent back well that by itself explains that a good reason for the no so tell us why if we decide to send this case that it should or should not go back to the same judge your honor is the problem with i actually tried want to case before judge real a long time ago and i have great respect for judge real what has happened in this case is a serial summary judgment picking one issue if they fall summary judgment motions putting six or seven issues out there he picks one sends it up sense and doesn't decide the others and it's sent back again same thing happens multiple grounds he picks one sends it up it's sent back again i think the reason you do it is because you're sending it back for the third time and and the judicial resources here deserve some respect it shouldn't be a fourth and a fifth time and you know at this point i we did request it be reassigned and the one of the pieces of evidence the council ignores is a piece of evidence that this court underscored in its own opinion and that is the introduced evidence that this is from your honour's from the previous panels ruling that otis general manager told two full x officers on back into business now i think when you send it back there ought to be courts deference to the panel not once twice but three times and when evidence is set forth when you send it back and you you specifically in a in a panel opinion outline what evidence you think is important or what this court thinks is important and it's not even considered and it comes back again i think that's when you act and you decide to resign our papers we don't think that the case needs to be reassigned we don't see any kind of manifest injustice here i mean the only reason that the summary judgment on the statue imitation it was addressed again is because we later got this new august twentieth letter we asked judge real for permission and he properly under this circuit's authority allowed us to brief it again so i don't think there's any reason why a case that if you do intend to send it back and i urge you to reconsider that then we think judge real is the correct judge at a minimum your honour's if you're thinking about sending it back then we would ask for an evidentiary hearing first on this one issue and perhaps it could be directed that way if you're talking well in front of judge real would be our our hope and expectation thing real from the district it not talking for in front of us right i want to say this sufficiently correctly did he just say i've i've ruled on this once those guys on the ninth circuit don't know what the heck they're doing and now i got it again and i'm going to do the same thing or did he look carefully at what the ninth circuit had given him well it's our view your honor that he did look carefully because the last time all the ninth circuit said was there was a question as of december two thousand and five prior counsel before mr bosh argued to this panel and conceded that his client was aware of the bad conduct the alleged bad conduct in two thousand and five so the only question and the only reason the case was sent back is because it was unclear what happened post december two thousand and five and our view is once we got ahold of this letter which they still never gave us and presented it to the court it completed the record it completed the circle and we think judge will got that right and i thank you thank you