reserve three minutes for a bottle please you may do so just watch the clock oun current crush which was here today with this in the courtroom your honor is the lower court erred by entering summary judgment against my client in at least two separate ways first she first the court relieved the university of its summary judgment  and ordered my client to prove up her declaration even though it created factual disputes to the court ignored evidence that equitable tolling preserved my client's claims for these reasons the summary judgment should be reversed first the university never carr summary judgment burden the university's moving papers did not conclusively negate or foreclose the possibility that crush which filings were timely your honour's this is important because unlike most summary judgment cases where a defendant argues that a plaintiff has insufficient evidence supporting her claim here the university moved under the more stringent standard of addict he's now in nissan this court read that case as requiring a moving party to foreclose the possibility of a claim or that her claims were untimely and that she needed equitable tolling however at the university's motion did not put any of the elements of equitable tolling at issue now so what is the arnold case tell us claim did not toll state statutes of limitation did not told the statute of limitations for state toward claims ok and how does that apply here or not apply i mean if it's been raised right our argument would be that it doesn't apply here because the claims in that case involve different wrongs there that the e e o c charged out with discrimination in the workplace whereas the state tort law claims which were assault false imprisonment flexion of emotional distress and battery all involved bodily or emotional injury so the claims there were truly separate they involve two different primary rights under california primary rights the continue certainly i do go back to your first argument to see if i understand it correctly it seems to me it's an argument about whether the motion for summary judgment in its original form was sufficient and chooses to disregard everything that happened in the district court after that is the district court tried to pin down particular dates is that correct essentially the argument would be that at the time that the court ordered additional briefing it really our position is that the motion actually should have been denied because your client didn't objected and my client is my client represent interest press a that's an answer yes or an answer no i getting to the answer that my understanding from reading the transcript is that she acquiesced in supplying additional documents i don't know that she acquiesced that the university should be relieved of its summary judgment burden but the district court of attained additional information what sense is there in disregarding the additional information if in fact it could pin down a specific date there are at least two reasons one is that if the university didn't meet its summary judgment burden my client didn't have any obligation to turn over evidence but by the time the district court has this in front of it if in fact it's uncontroverted that a given date would bar the claim what sense would there be for the court that is say but because you didn't include that in the first motion i'm going to disregard this fact that i now know and as a result we're all going off to a trial this pointless hyde park our position is that the magistrate judge ordered my client  supplement her declaration basically to corroborate it and which she did and she argued to the best of her abilities what the evidence represented however the district court misread some of that evidence unfortunately and decided factual question whether there were on controverted facts that support the conclusion that i understand and i hope we'll get to but i don't understand why the district court should close its eyes to facts that are developed in subsequent submissions just because the first submission by the university may have been insufficient in some fashion i understand your concern in our the rest of our brief did address the underlying evidence and you are correct that the initial argument is a purely procedural and so i'll let you get to the merits nuff so your honors even if the university shifted its burden which we contended that not in this question it's presented evidence that equitable tolling should preserve her claims and there are at least three significant parts here the first is the cognitive dysfunction should have pulled all the filing all the finding periods the second is that the e e o c charge should have told should have been told by p i and that's protection advocacies bad legal mobility flow to the brain cognitive dysfunction difficulty with memory and communication which impacted her ability to file timely this wasn't near poor health which is what the district court dismissed it as but it impacted her ability to understand her rights it would be inequitable to have a unrepresented litigant with this disability have to navigate all of the filing requirements now the universe and the argument doesn't seem to have much to do with where the difficulty with cognitive dysfunction as with not knowing what the deadlines war what's the connection there your honor they're related because of the cognitive dysfunction limited miss crush which ability to understand material and there's evidence in the records that a fact she was only able to focus or concentrate for forty minutes at a time and again she represented herself so she was navigating the complicated you know statutes that issue the charges the various filing times i did shew and to the best of her ability she'd she did so but her disability also impacted her ability to know what to do and to do it correctly now equity doesn't require that she sit on her rights it requires that she to the best of her ability to understand her claims try to pursue them protection and advocacy failed to tell her after she was dismissed from the university in january thirty one of two thousand and five she was not represented by any attorney for purposes of these discrimination claims she so she turned to protection the way we would couch it is p i was her attorney for the limited purpose of advising her about her discrimination claims but they weren't effectively acting as counsel because they they weren't acting as counsel and the way that she could be charge constructive knowledge of the law because they didn't fully advice or what her rights were or what she should do to perfect them now you are counsel yes can you hear me yes is there any evidence that i'm sorry evidence that that yeah i even knew that she was bringing an employee claim i mean there's no you haven't seen the record as far as i could tell that they were even aware that your honor we think it's a fair inference can be reasonably inferred from the record because what's interesting about graduate students is that a graduate student has a dual status she is both a student of the university and also an employee because she is either researcher or a teacher  that would be the fair inference from the record but other than that unfortunately we will concede there is an much of that is very strong except for her allegation in her complaint that she holds a dual status if that agency actually served her counsel on appeared would attorney failure be sufficient to get around the limitations problem under this court's decision of who it should be and i understand that  context but it applies general equable principles and there this court held that an attorney's error might be sufficient under equity to excuse a plaintiff's inability to file on time so for so long as that party district court relied on santa maria which is distinguishable because that case involved a represented plaintiff and also because the plaintiff and the lawyer there had information pertaining to the claim during the filing period and still fail to issue the first is a chance to review miss question which is the declaration stated that she had been readmitted by the prior chancellor and on summary judgment that should have been deemed true so that when she later petition for the chancellor readmission that was the reason that she reasonably believed based on her own experience that that was a remedy available to her now as to the e e o c investigation and this court has held that california law allows and student claims both address the same wrong which is being free from discrimination from a public university and they are based on similar facts again based on this dual status lucchese said different laws different procedures were different remedies should not prevent to tolling here violates no federal policy the university never identified one and there is none that's violated davidson identified uniformity federalism and deterrence as relevant policies as to uniformity and federalism because federal law is to apply state law there is no requirement of national uniformity so it's ok that things differ among the states as to deterrence it would submit that it supports the federal has admitted that since two thousand and five it is held all of the evidence relating to discretion which is a claim and that's in two thousand and five so when the e e o c charge itself is filed in two thousand and nine it's it's a reminder that that claim is so out there and alive lucchese rejected the argument that independent avenues for relief preclude tolling under california law what matters is whether the same whether the claims address the same or wrong which they do in this case counts you're down to about a minute you indicated you want to serve some reserves some time yes a reserve there so i think you may do so we'll hear from the university hope you can see me behind this tall people the microphone down a little closer to you thank you council thank you may it please the court i'm going to start with the merits and work my way back the first ground that counsel talked about for applying tolling to this was the mental impairment issue the law on this issue is pretty clear to have mental impairment actually lead to told it has to be really severe it can't just be someone that is forgetful or has trouble for a few hours of the day it has to be so severe that you cannot rationally or factually understand the need to file and you cannot physically make that happen what you losing technologies is a very good case on that because it's very similar to this in lucent technologies the the plaintiff made the same argument about mental impairment and the court and looked out the behavior of the pla and and made a determination about whether that behavior evidence the kind of impairment that the law required and in that case the court said it didn't because that per that plaintiff was able to completely participate in advance and protect her interest in this case although counsel has told us that miss cross which was so mentally impaired that she could not file an ego seek claim within  hundred eighty days look what she did all of this is understood in the record she spent a year continuing her chemistry ph d classes while her university appeal was pending and while she was suffering from this disease she managed the entire appeal process through the university of california she filed complaints with the o c our with the department of justice she took all of those through multiple steps of appeals including to washington d c she went to the attorney general she went to senator feinstein she went to senator perata she filed the complaint in this lawsuit she participated in this litigation she filed in opposition to this motion on the face of it the argument that miss crushed which was so mentally impaired that she could not understand that a charge had to be filed within one eighty days is just a lie by the undisputed evidence and she also takes a position she's capable of completing her ph d work in chemistry which also belies the statement that she's too mentally impaired to file the e e o c charge counsel also argue that the o c filing was not that she didn't know that she had to do it but there is no law none that i has been cited to us and that i have found that says that just because a person does not know about the filing deadline for the e e o c charge that they don't have to do it the legislature did not carve out an exception to that statute that you have to file it within one hundred eighty days unless you're on represented by counsel or just don't know that's not the law it would in fact mean any unrepresented claim that would say i didn't know and then the  time limit and the statute would be essentially eviscerated and most people who are a poor filing claims are on represented at that stage anyway the law says it's not that you don't know it's not whether you know about the requirement it's whether you know that you have a claim within the limitations period that's what is the tolling test is obviously miss crush which knew she had a claim she knew it from the beginning she made the argument to the university immediately that she was disabled on terms of the bad advice that the p a i gave to miss pressure it's during her consultation with you know they were concerned with her employee claim that was an organization that was giving her feedback on consultation on the student claims the o c r process but and they had no duty and there's no authority before us that would tell us that they had a duty to advis completely unrelated claim nor did they it's not that they gave her bad advice they didn't tell her this is what you do and she did it it was wrong it was they were just silent on it and she has an obligation to diligently pursue her legal remedies and figure out what she needs to do to protect her claims so that argument and i think if the argument is that dealing with grad students is not a tough inference that the grad student may be a graduate assistant or an employee of the university as well what any sense of what proportion of the grad student population work for the university in some fashion aspect is pretty high you know i don't but i would say that even if we made that assumption that would not be enough of a factual dispute to get in the way of the summary judgment i mean who knows if she was even going to pursue an employment claim under title seven you could be a graduate student and pursue your university claims to reinstate your student status without ever proceeding under title seven or employment action so it's really a red herring as we say i want to talk a little bit about the requirements for equitable tolling because counsel brought up this idea that they had provided notice to the university and so therefore all of the told ng arguments apply there are requirements for applying equitable tolling there are three of them the first one is you have to give  notice to the defendant of the first proceeding so that o c r would have been the first proceeding the lawsuit the next one counsel argues that miss crush was gave the university notice about because she told them way back in two thousand and five or two thousand and six zero that she was going to pursue this that kind of a generic statement or influence for in france or threat is not with this required you need actual  notice of the proceeding it is undisputed in this record that the university never had notice of that o c r proceeding the o c r didn't tell the university which is typical because they didn't accept it miss crush which didn't tell about it we didn't know miss hawthorne's declaration says the first time there was an inkling of that was when the eco see the claim was finally provided to the university in two thousand and nine years after the fact because that that charge has a line in it that says something about the department of education complaints but that's it they didn't even know when the university got that it immediately sent out a request for information under the freedom of information act to try to figure out what was going on so the notice courson of that test was definitely not met now the court on summary judgment gave this to plaintiff to plaintiff benefit the did not rely on the absence of notice and the court went ahead and applied tolling to these claims that was an advantage i think and so it definitely worked the court was looking out for her best interests in that regard probably i would think because she was proceeding in pro per so the e o's are ios e charge itself be used to toll a civil lawsuit that's happening years later they really is not much of a dispute about the un timeliness of this ego see charge we know it was filed on april twenty ninth two thousand and nine almost four years after mr schwartz was dismissed from the university that's a lot longer than one hundred eighty days the face of the charge says that the last act of discrimination happened on march for two thousand and nine march fourth two thousand and she had not been in her for almost four years by that time but on the face of the document that you file with the appeared to be timely because the date on the face of the charge made it look timely but there is no evidence in the record about what the e e o c did with that charge once it was filed there's no evidence of an investigation there's no evidence of any determinations of timeliness there's no evidence of any kind of maneuvering on the merits of it it was sitting in the e e o c sometimes things  c for a long time it's just a practical reality of that a government agency plaintiff try argues on appeal that you have to infer that o c charge was timely because the department of justice issued the right to sue letter instead of the commission itself which means the commission must have assumed that it was a time charge that is an inference it is not reasonably made all we know based upon the undisputed evidence is the charge was filed the right to sue letter was issued and we don't know what happened in between we don't even know if the e e o c realized the missed crush words had been dismissed from the university program in two thousand and five so now we get to whether the trial court correctly applied tolling as i said the trial court to miss pressure does benefit skipped over the notice requirements and applied tolling very generously the trial court applied all of the cal university of california processes up through the time her appeal was denied in december of zero five told the entire what about the petition to the chancellor except that this is a petition to the chancellor so let me talk about that the appeal process at the university of california is well documented and it's it is set forth in writing and it is undisputed and it's in the record that process does not provide for any kind of review or appeal to the chancellor once   and the argument is that the chancellor granted relief before well her declaration says a different chancellor years before had at the declaration says at the behest of the prior chancellor she was in it chancellor had been involved in some way and we don't know how there's no evidence of how some ways sat on the committee or did something that eventually resulted in her readmission under this conditional program that she was and it doesn't mean that when she is dismissed from the program now that it creates a triable issue of fact to say even though the process in the procedures for appeal of my dismissal don't allow it i can go to the chancellor and told my time i mean a person could write to every administrator on the campus and argue that that was told in their time in the the procedures or are very clear discretion which knew about it and it tells you exactly what you have to do if the chancellor were available to review every student's claim that they had had some disciplinary action happened that they dislike the chancellor would never be able to run the university so that's the answer but the practical reality is even if you include the time period of this chancellor review it adds sixty six days it's still time barred we're still a long way from having these times be compliant so it doesn't really matter the other i have two minutes left so i really need to talk about this idea that you can as long as you have an e filing that you can told any other unrelated claim that you have out there that's that's really not the law we've already talked about the filing the on timeliness of the filing itself but even if we get past that there is no  ty that says if it's the same primary right if it's a discrimination claim and you want to be free from discrimination that then ito see filing will toll any other separate and independent claims that you have as long as they arise out of this discrimination united states supreme court in johnson versus roe express specifically dealt with this this is a race discrimination case it's the same primary right to be free from cannot sit on the congress did not intend to apply this administration of hurdles to the one nine hundred eighty one claim there is no federal policy that says you gotta hold up in one nine hundred eighty one claim and wait for your title seven process which the court noted could arnold which your honor asked about beginning confirms johnson and it specifically says federal policy does not mandate agreeable tolling and federal policy does not mandate that title seven court in tennessee law which is quite different than california law on this issue of similarity between claims i mean is there a real difference between this case and johnson i don't think so i mean california  law and is very similar to that in the courts just saying it doesn't have to the johnson court actually said well if state law is something we look at we're not back down by it or married to it and we still have to think about what the federal policy should be and that is the case here but i have to say there's no california authority that would support the position that just because the title ios see charges filed that everything else gets put on hold that california doesn't do that either there's no primary right law in california that applies to equitable tolling  thank you very much thank you counsel mr martinez you reserve some time a few quick points so when mental impairment the mental impairment in this case goes beyond mere forgetfulness it goes to cognitive dysfunction an inability to process information and that was documented in the evidence that this question was put in  the problem is she was able to do other things during that time that's correct your honor we don't dispute that miss crush which tried to the best of her abilities to prosecute her claims and that goes to the second prong of acquittal telling she's required to not sit on her  broadly states that the well advised disability plaintiffs about their claims now as to whether or not the e e o c charge was timely counsel say that there's no evidence that the e e o c took on the claim that's that it is that the agency itself deemed it timely and that it deemed the claim worth the its resources and that she may have had a viable claim does that matter to us it should matter for the part because it's evidence again that her claim that she is able to state a claim that the university had some notice that there was an easy charge out there and that the notice function was fulfilled in this case thank you counsel your time has expired the case just argued it will be submitted for decision and the court