against the university that's the remaining claim is the claim against the university based on deliberate indifference once they were made aware of sexual harassment that had taken place miss family was forced as a result of this to leave the university three different times when she left the university she cannot have had any more hostile work environment right she came back that she was instantly left i mean why she left in the environment is no longer hostile as to her right when she left for good well she still wanted to be there i think and that's not the point when she left she was no longer in the environment that she said was hostile that's correct didn't her time start running well perhaps as to the harassment claim against the person who was actually committing the harassment the claim here is deliber route started to run number one and how long statute is number two and terms of the when the statute started to run at the time she left for good in the spring of two thousand she hadn't even yet formally submitted a complaint to the university they didn't respond when she finally did make a formal complaint until january of two thousand and one in that response the university said yes we find a violation of the policy appropriate action will be taken period that's it so she naturally assumed they meant what they said and then she still wanted to go back to january of two thousand and one after she'd already been gone for almost a year now but the professor s there if you went back tomorrow she'd be right back in that hostile environment so you're telling me that so long as the professor is there twenty years from now if she wants to go back she still has a cause of action that she can file on the spot well our clock never starts running arguably the question is well that that when does it stop running i guess is the question you know when does it start running right and and by your argument it never starts in till the school does something until they cease to be deliberately indifferent yes and so they have to do something something before that so if they do not do something for twenty years then it has to follow that the clock  let's move on you say there's two possible statutes of limitation here one is a one year and one is a two year wait and the so first person case is the one that deals with those personal injury is one year it was one year at the time of the red brief points out th now i think the generally speaking the personal interest i mean the courts apply the personal injury statute of the state all sorts of things is one year which at the time was one year and why isn't why isn't fact this positive of your case here because this is a claim a for personal injury that is the statute that normally plies so she gets one year unless it's against a plant where you have to submit under a government code section one forty five point six the unless where does that come from it's still personal injur personal injuries personal injury well the in government claims cases in california the government code applies and that's where nine forty five point six is yes there is a point but that assumes that the claim has to be presented eventually brought if if they had all these things have been filed there are in fact the eleventh amendment claim which we'll talk about if we have time but i don't think we'll get there the eleventh amendment dealt with the state law causes of action if we had just done this without filing a claim the first thing state was going to say is well they didn't comply with the claim statue and what the claim statute says is that in any claim any claim and that's presented yes the state can either response of the claim or not if the state does respond in writing then the statute of limitations to six months not a year but if they don't then it's two years and that's what happened in this case the state did not respond if the state wanted to cut off its liability if they want to even shorten the statute of limitations below the year all they have to do is say we reject your claim there's no question that as an april two thousand and one so within a year of that she needed to have pursued with a geisha in court in order to be within this period of limitations didn't she know why because she had two years because she she didn't and she did and the state did not respond so under that code section nine forty five point six any claim the statute is too near and in what authority is there that a federal claim has to be there that a federal claim under title nine has to be presented to some state agency before it can be pursued in federal court if the federal claim if it had been brought by itself could have been brought without complying with the claim seems to me he's correctly citing them for the position well i think the ellison case for example said that the continued presence of the harasser can constitute the live constitute deliberate indifference but even putting that aside  that's not the continuing violation theory isn't necessary if you accept that the latest april two thousand and one and a two year stature would play twenty third two thousand and two is thirteen months johnson to decide yes i want to make sure i understand your position on this continuing impact you said earlier there's a continuing impact or even twenty years she may go back and file her lawsuit and i'm asking you these ninth circuit cases seem to be kind of victory t position and we of course have to rule based upon the ninth circuit what's your position as regards to these cases that have been cited don't they i'm sure fractured position of the twenty year period of continuing impact yes they do i think at that point it becomes a factual question of whether or not you know the people that are that might know of these facts are still there whether the environment as a whole remains remains hostile just because that one person is still there twenty years difference you have the same board doing the same thing you're just looking at it two different ways that they have continued to not do something or they will continue to do something if she comes back i'm having difficulty in my mind figuring out how to deal with that issue and it seems to me the case to say i don't deal with it there is no continuing impact but i don't see where you distinguish those cases not at least not your brief and maybe don't your argument now i think the continuing violation i think those cases are pretty clear i think that it's the difference between whether the plaintiff feels bad about what happened the last time she was there or whether she goes back again and she is subjected to treatment again if your client recovered anything at all for what happened but you see the problem i have with it is is nothing has changed then she should have brought a lawsuit within the statute of limitations that's why these continuing impact cases that are there and i don't quite come to grips with i can say i'll write an opinion you write it for me the continuing impact decisions say that you can have a continuing impact but they do want to apply in this case the statute is not be can be n because well but arguably the statute from the twenty one twenty years ago ran eighteen years ago but continued presence of a harasser can be deliberate indifference if she wanted to go back it's been five years she started going back to school if she wanted to go back to morrow she would her choices be subject of this environment or go somewhere else but if she were deliberately indifferent they were deliberately and their friends now they were right afterwards they didn't assault battery claims of that nature and the only thing i've heard for somehow expanding the statute beyond the one year is this continuing impact and  continuing impacts of past violations is not actionable and the fact that the plaintiff left university for the last time in the spring of two thousand and never returned it seems to me to supplant any continuing violation type of  if he goes back today the environment has not changed and so when she goes back today her causes the action comes right then because they have continued any other court that i'm aware of is never held an individual's continued presence per se constitutes a hostile environment and such and such it world you could never ever ran the sexual harassment actions so that when she does come back into the environment that it's not a hostile work environment we see that in the workplace every day where there are a myriad of sexual harassment claims where the employer has an obligation under the law to make th really plead deliberate indifference in this case in fact she says to you in june of two thousand and one the university told me they took appropriate corrective action that's not deliberate indifference two paragraphs later