reserve two minutes for a bottle the reason we're here today is because the appellee the debtor is vasquez failed to disclose an alleged four year period of employment violations when she filed her bankruptcy petition nov seventeenth two thousand and ten this was discovered about two and a half years later when she filed a lawsuit against her employer and her manager the bankruptcy was reopened in two thousand and fourteen the trustee settled later in two thousand and fourteen the bankruptcy court approved the settlement in that approval the bankruptcy court said that as to the ten causes of action that were alleged in the underlying employment lawsuit that all of those causes of action with the exception of two causes of action seven and eight were properly property of the bankruptcy estate and therefore those claims were settled and dismissed in extinguished through the bankruptcy court that was appealed to the u s district court and the u s district court reversed the bankruptcy court in part and said that as to six of those causes of action the first the second the fourth the fifth the six and the tenth that those causes of action were not the property of the bankruptcy estate and therefore those should be preserved on behalf of the appellee the debtor the district court was wrong in doing that for several reasons first in reversing the bankruptcy court as to those six causes of action the district court was focused on the wrong question the district court was applying the wrong legal test and here's specifically what the district court did wrong as we know from the u s supreme court's got is that the terminations and the retaliation are you prepared to take that off the table the terminations has already been taken off the table your honor through the expressed terms of the settlement with the trustee so that's cause of action number eight and the trustees specifically said that that is outside the context of the bankruptcy estate and settlement and therefore that is preserved so yes about the retaliation so as to the retaliation claim no your honor and it's all explained in a moment there are allegations in the complaint including allegations that go within one year of the filing of the bankruptcy estate that show that at least to some extent that retaliation claim is based on precondition conduct and therefore that claim is properly the property of the bankruptcy estate it should not have been carved down by the district court it should have then adjudicated the way the bankruptcy court did which was to include it and dismiss claims arising from conduct that straddles the bankruptcy filing date it goes pre and post right so let me let me dig into action i'm kind of a practical sort of person so i have to understand from the standpoint ok since she got fired after all right and she's going to do so she goes forward with that she's going to be able to she's going to have to say that she got fired for wrong reasons and there's all of that but but some of the reasons why for example it's some of the some of the contact that happened before is also going to be conduct that happened after and so how are we going to know is conduct occurring on or after february twenty third two thousand and eleven so the appellee has already told your honor that in terms of prior conduct that doesn't count so the  not seeking to say we want to preserve claims based on conduct that occurred prior to the very twenty third two thousand all of it so in terms of your straddle question the practical result is the appellee has already said anything that straddles prior to february twenty third two thousand and eleven we don't care we recognize that is property the bankruptcy estate should be flushed the only thing we're trying to hold on to is february twenty third two thousand and eleven onward in terms of the other practicality here's why i'm here today the reason i'm here today is because if you read the the debtors complaint in the underlying employment law lawsuit and you read through that entire thing obviously there are many many many allegations about preposition conduct the reason i'm here today is i simply want this court to affirm the bankruptcy court's ruling so that the bankruptcy estate the underlying employers the appellee all know that anything prepared to sion is property of the bankruptcy estate and is out the problem with the district court's order is rather than going carefully through the complaint and identifying which causes of action might also be based on pre partition conduct the district court's order simply takes the causes of action as one unified thing and says regardless of whether they straddle anything counts one two four five six and ten are in for all purposes that's the problem i simply want this court to say that no cause of action one two four five six and ten are out to the extent they rely at all on preposition conduct now if the appellee wants to argue that as she says in her brief as a february twenty third two thousand eleven additional things happened that give rise to one or more of these causes of action great i'm not arguing that one about the economic i mean the unfair california's  unfair competition i'm glad you're on a race that now because i'm struggling with that because she personally alleges economic theory and one of the it which is one of the elements of staging a there might be something there exactly so let me amplify on that so in the district court opinion where the district court said as to that cause of action number ten i'm grabbing it back it is not part of the bankruptcy estate debtor gets to keep it appears with the district court set since the only injury that can properly be traced to the montes unlawful business practices is lost income resulting from her termination unfair business practice claimed would not have accrued until february twenty three two thousand and eleven and was therefore not part of the bankruptcy estate there's a fundamental flaw in that statement and you just recognized it and that is in paragraph thousand of the debtors complaint in the underlying employment law case she specifically alleges pre partition economic injury that being the loss of a raise and in fact at her deposition i believe it's e r to thirty she says not only did she lose that but she didn't get a raise for a single year from that point forward so clearly the debtor had claimed she had suffered economic injury separate and apart from what happened with her terminations on february twenty three two thousand and eleven she alleged pre partition economic injury spanning four years from two thousand and six until two thousand and ten now according to the supreme court in the sequel case the test here is whether there is a potential claim and the bankruptcy law looks broadly and generously to define whether a potential claim exists clearly on the basis of those allegations which apparently the district court ignored there was a potential hypothetical claim or economic injury that would support a seven thousand two hundred claim pre partition and so that you know your honor your review has to know so you have a chance to get it right we've identified me why we try to we try to make it we're going to chance but so but so if you're saying from the bankruptcy court i have a problem with what the bankruptcy court did on that so tell me well then stated differently what i would say is your honor what i'm asking you to do is reverse the district court as to cause of action number ten and hold that that cause of action was property of the estate because of what we've just discussed all of which is in the record for this court so let me give you another example of where the district court went wrong and this is this is an e r sixteen and seventeen pages twelve to thirteen of the district court's opinion the district court said since the complaint does not allege that vasquez brought sells pattern of routine caressing remarks to don't want his attention prior to the filing of her d f e h complaint the court cannot infer that the hostile work environment arose to the point of effecting an adverse employment action thus any of cells discriminatory remarks or harassment quote jim carrey in dumb and dumber what the district court is saying there is so what you're saying is i might have a chance the court said not likely that means there is a potential client in the district courts analysis the district court may have weighed the merits of that claim which is not what the district court's job was and determine that it was not likely that don't want you would be liable but by saying not likely the court is recognizing necessarily that there is a potential claim the odds may be low but it's there and again the u s supreme court and civil case said if there is that as your honor put strad all where do we draw the line but to the extent there is a standard i believe when there is an actor that's an independent discrete act that gives a lot rise to liability on its own that accrues completely post to basically clarify that the extent the claims are based on preposition conduct that belongs to the state do you have any quarrel with that i don't get all clarification that he's asking for because some of these claims that the petition conduct belongs the state i do not disagree with it in principle but the only thing i would say that is that would that did not have to be an appeal to this court that could have been a motion in limine the filed in the state court that would likely have been on oppose the purpose of the appeal at least when i read the brief not when i heard oral argument is that when we presented the case for a trial the way the district court constituted is the only cause of action we would present to the trier of fact special general verdict would be or wrongful termination and retaliation we wanted to present a discrimination of failure to accommodate a failure to engage in a failure to prevent claim in addition to a wrongful termination retaliation the reason that that's important is those are separate and distinct claims with their own elements and also they have different measures of damages different standards for cost punit damages and like so they are there so they are different and we if the sounds to me like the parties aren't really disagreeing but you are saying oh we if we were to proceed to trial on  i understand you correctly that is the take away i got from there oral argument which surprised me because of the problem with that is the district court's ruling right wouldn't they be better if they didn't appeal it wouldn't they be bound by what the district court sa d i don't believe so your honor because the district court quite clearly found just on that it's an excerpt of the records fifteen that the adverse employment action that gives rise to the discrimination claim let me just give you a straight for example here and so maybe the parties are in agreement in terms of how we should handle this case and clarify the record on the u c l claim for example the unfair business practices claim the district court said that  only alleged economic injury was from her terminations and so therefore essentially her her claim accrued on february twenty three twenty levon and so so as the u c l claim it's postposition conduct only and therefore doesn't belong to the state right that's how i understand the courts the district court ruling the problem is that your theory of the u c l claim also relies on petition to state that i do know you today is i don't disagree with that even though we played it that way don't disagree with i don't disagree that the case were to proceed to trial on the u c l claim the economic injury would stand soley from the we the just to clarify the difference between the bankruptcy court and the district court and i might as we'll the bankruptcy court did not allow a claim to be presented for statutory cause of action the district court said those claims could be presented and this is an appeal is not a motion in limine a there would be a difference between using simply some background support but saying that doesn't give rise to liability saying the claim is for or close that all so that's the distinction that i think it's very see the fight if the court were simply to say there's no preposition conduct we agree we would probably argue with the trial court in state court whether to the extent the evidence is admissible merely to show motive or something like thing along those lines but the difference and if these concessions may be low i think the district court might have maybe been a little clearer but what i hear you saying is that if we were to issue a ruling that basically said multiple of these claims and there are several here be correct what do you anticipate you know you might argue certain things you know that let's just say that it's already said that she doesn't she she can't claim that she didn't get a raise right like and what all the events that preceded her being terminated while how would we know with the jury if you didn't use special verdicts what they could have factored in in terms of because i could see you arguing something to the effect of you know they treated her so badly and they never gave her raise and then they fired her and then the jury goes back and so she's entitled to you know the lost wages and the back and then they decide that well she should have gotten a raise so we're gonna we're going to calculate her economic losses as if she had gotten x y and z raises the amount of money that she was out so how  would usually the way that is handled when there's a trials in this matter is there is a california jury instruction for adverse employment action and that is generally modified based on the facts of the case so to the extent that the is which occurred quite a while before determination was admissible the show a motive there would be a modified jury instruction that could say there's not room for a liability but th is is that i believe we would put it in for these people the employer did not like people who were sick and disabled and she was treated badly but that would be a jury that would again that would seem to be a jury instruction issue that's everything bad about the other side and and it's hard to try a case to completely sanitize what happened you know and i don't think that makes sense sanitize what happened prior to the of them that someone is claiming the complaint is when is vazquez turned in a doctor's note with restrictions which are very mild no lifting ten pounds and she had administrative jobs she did not have to lift and some other like appropriate breaks and it was the response was well you're fired that is fairly does that on its own could simply isn't enough to give her a liability and of course there is background information that may indicate an unlawful awful motive but the story in the that's why the district court found that the claim was not part of the bankruptcy estate the terminations and the as a discrete act that give for eyes to actually of several causes of action disability discrimination failure to accommodate failure to engage and failure to prevent and we can tell that story using the dates of that skews me the conduct of the terminations with the background information soley for that for background and and from or the district court or in their brief but it seems their concession means that they are saying we can present these discrete these statutory claims that i just mentioned and that the only thing i would want to point your order so we're  harassment and discrimination so it can be presented to the jury and to accommodate failure to engage in united the process an unfair business practice can be presented to the jury we simply want an order from this court that that court affirm the district court on that issue or theory man was necessary to reconsider it and in the light every man and the district court also never reached the issue of whether the underlying settlement was fair  reasonable based on the concessions at oral argument i can't see how the court or the district court would have to reconsider that but if there is there are a but if there is a rematch we would respectfully ask that they remain include that the court could reconsider that issue i just like to make two or three quick points first going to what counsel just said about the last page of the district court's order and referring to judge callahan your point about lawyers being sneaky essentially tr get away with things the district court's order in its conclusion says that the following causes of action are still yours it doesn't say the following causes of action only as to conduct that occurred post february twenty three two thousand and eleven so the district court in its four bullet points saying disability a national word origin discrimination etc etc etc is saying that those are in as pled in the this is a page one of the brief appellee says quote causes of action could not have been based upon appellants time barred pre bankruptcy petition conduct as a matter of law that's essentially what we're asking is that the district court's order be reversed to the extent it would allow the appellee to pursue causes of action based upon time barred pre bankruptcy petition petition conduct pre bankruptcy conduct but you've already settled that part of it how will that work that means those claims have been settled they have been extinguished they have been dismissed they are the property of the bankruptcy estate they are not the property of the debtor and therefore the debtor has no standing to pursue those causes of action the bankruptcy trustee has already dealt with those determined what the appropriate course of action is and settled and dismissed them