inquiry notice as the panel knows that's inherently bad jordi terminations and you and there's three stages of those factual determinations the first is whether all three of the plaintiffs were on in queen notice prior to february of two thousand and nine there are you arguing the tower was an anonymous i think that you can make an argument that tell we had suspicions or had concerns i mean when she wrote the letter so i think that certainly there was evidence presented that she had an obligation at that point to make a reasonable inquiry but so what's what's going on i want to understand in this case you allege that the entirely well but isn't that at the end of the day when were you saying i think in the complaint is that we were told we wouldn't have to put money and we were told money would come out more quickly and you're only talking about two contracts here right because the third one paid off  and when when she would should your clients have been on inquiry notice that things weren't going as promised well i think there's there's two aspects of the promise one is they were told the policies would pay off on a certain date right but the other thing is they were told that eventually the policies would pay off and one of the critical aspects of our claim was it wasn't until february twentieth eleven that they received facts that would indicate that there eventually payment was at risk not just that they wouldn't get paid out on time but that they would most likely or there was a risk they would never receive the money when the insurance died so there's two components there cast for the first component of it surely they were an increase notice when people started tolling of the statute of limitations while they're checking with their lawyer their they've begun the reasonable inquiry so the statute of limitations begins around us well actually i don't think that's the case because the thing is when you your obligation is to make a reasonable increase if the reasonable in crete comes out empty that doesn't mean the statue of limitation titian starts to run it's just like if you go and you engage a professional and in this case he wasn't engaged because you was their state planning attorney he was engaged because he was  to do or had as an insurance agent i understand that but so your position is that if you if you're put on inquiry notice and engage in reasonable inquiry and get and it comes up empty that the statute is told into you're put on notice again is that how you read the california cases that's how i read the california cases and it's also hard to read the ninth circuit's case in seaboard because that's actually what happened in seaboard was that the person was indisputably on  statement they went to the company they consulted with the underwriter the underwriter told them that i cal for new laws of california laws as if if there is a brief suspicion and this is in the medical malpractise context there's a price of the suspicion and the doctor suspicion for like several years and so once you have i guess suspicion actual suspicion then you're on inquiry notice and i think the question in shifts to what would a reasonable person have found now the other side puts into evidence or to this one thousand nine hundred ninety eight book that says before two thousand and two it was well understood that there were risk with the vi add a cold insurance investment program so why why isn't that to say there's no genuine issue of material fact when the others i didn't put in any evidence that that was not knowable at least as to tally well actually the thing is what happened was it was the opposite the on the moving papers the defendants didn't present any evidence that an investigation would have revealed the true fact we presented the book as evidence to show that a false statement had been made in our opposition an opposition and the thing is that this book this was a book that came out in one thousand nine hundred eighty eight it was out of print but it was i did other articles and other sources of information but that were available at that time saying that the  events might be risk free as they had been told well the book cited articles that had been published contemporaneously at the same time and book in the late one nine hundred ninety s i think the question is would a reasonable person would a jury necessary conclude that if tally had investigate herself instead of relying on mr james to investigate that she would have found this book or thought to go back you know all this time to these articles that the information is so voluminous and so overwhelming that it would not only put her on notice that people each patient's living in order to what evidence did your client put in the record that that was not the case and excuse me it were on summary judgment and there is evidence on the record that that information about the fi adequate history was was available and so what evidence was there in the record put on by your client that that was the case that a reasonable person could not have moment i know you don't concede this that that when you're koreans learned that the people they bet on hadn't died and when your clients learned if they had to put money into these life insurance policies if they weren't put on some sort of inquiry notice to look more deeply if that's the case if your clients were on inquiry notice isn't it your burden to show that a reasonable investigation wouldn't have to school you know come up with the true facts i'm leaving aside the question about whether a policy would pay at all just focusing now on the fact that the that the the the insureds didn't die as quickly as your clients hoped i think we did because the reasonable investigation was that they  that's my question is that is that a reason is the reasonable investigation to go to the very person who sold you the policies and ask whether or not these policies are good well the thing is they didn't see him as at that point he was still there trusted  point your argument is if i or here's where i see this i don't i don't see a big difference between talia and her siblings given the fact that the correspondence where they attorney and also given the fact that he's going to recommend of these investments is that enough is that enough investigation to go to your for do sherry and say look into this and tell us if there if there's something wrong here i think it is because there's a number of california cases that we cited where people did engage professionals whether it was an attorney whether was a professional engineer or whether it's going to a doctor for second opinion somebody they trust somebody they consider to be knowledgeable and in this case mr james represented that he had a personal he was a personal friend of mr pages that he knew this company that he knew these policies intimately so they reasonably believed he knows a lot more than we do he has access to information that we don't have he's going to be able to go to the company and figure out what's going on he's going to know more than we do what you're talking from their perspective but that is an objective where he correct you have to we have to determine that a reasonable person in that situation would not have discovered the facts showing the injury and cause so so i think the argument would would have to be what's reasonable for a person in that situation where you know your attorney is getting a commission from the  investment and whether that's a reasonable inquiry well i think that that's the same it's like a stock broker where you know you stop because getting a commission from the investment still reasonable to go back to your stockbroker and say what's going on here and to rely upon that w record is there is there a declaration from somebody that the attorney told them more than simply we're still in business there's talley's deposition testimony where she testified to that and there's also mr james's testimony where he testified to the same thing so one thousand and nine is that done before february second we don't know the judge says on or about january twenty ninth right but there's no evidence of that well you mean he made the date up yes i mean that's what i'm saying is that the letter is undated i know with th judge make the finding up well i don't know where the judge got the finding because the letter isn't dated but it encloses a check that stated february first so i don't know why you would conclude that the letter was written before the check that was enclosed with the letter that i thought they knew they testify that they knew he was getting commission but they didn't know the amount that's what i have behind that's what i that's what the record says i believe i am i mean i would have to go back and look at that specific issue my recollection was declarations one natural would would have been in the declaration or in their test in the deposition but put that aside for a moment because you mentioned a second argument and we never let you develop it and that's that you think that there was a misrepresentation made that when these people guard the money would be paid that's right not me with that was basically that the representation along especially when they investigated mr james was you know look these people live longer than expected to do these advances in age but eventually they're going to die you're going to get your money but as we pointed out in our briefing and one of the key things is that these at the setting of policy has an anti assignment provision was that raised to the that out before they received the policy which they could didn't have access to because they're only beneficiaries so what are your policy but when they were on inquiry notice i would submit is when they learned that page and associates was going to be taking over the servicing of the once they get the policy they got the policy in discovery in this case ok but when they became concerned about the risk of their venture repayment was when they learned that page and associates was going to be taken of the servicing because at that point it's there's no independent oversight and there's nothing the start page and associates from saying that these people are still alive when they're not contagion just a fact or question is the policy relates to one of the two remaining people but not both of them it please the court my name is tom fitzgibbon and i represent the a pelleas william scott page and page and associates doing business as a lifeline i think the court has identified the the key issues i asked just a quick why but that seemed there was going financial issues for him but the the key issue here is the court has identified as the statute of limitations and the burden of proof plaintiffs in the appellants have suggested that the burden of proof was on us citing to nevada power and the irrefutable evidence standard that they really conflated the way that this works and i think the courts identified the right framework is first is whether the plaintiffs have knowledge of facts that show that they have a claim are they on in court that's the first situation let's assume that they are on inquiry notice way back when but as to the as to the assign investments were not going to pay off as expected because the expectancy of the insured was increasing but when did they get a note when they first put on inquiry notice that this might this might be an investment they paid no money at all the the question i think that goes to the issue of whether that aspect creates a separate claim or cause of action one sure sure and i think if the answer is there are remedies what they sought in this case was rescission and they know it doesn't under california law ok if there's two different claims i think the ethic and there's two different claims then you're oncet you have to be on separate notice for each of them if if the elements are if the accrue at different times the example was from the medical malpractise case where the doctor conducts the surgery on day one commits malpractise then later that implanted medical device fails at a different time but in this case the statements that the issue here is that they claim there were omissions a large number of omissions plus affirmative misrepresentation but they did they were they say then this is the part of the case it helps you they say look the money didn't come in in the first when it was supposed to  people didn't die when they were supposed to so i was worried that the representations about the profitability of this enterprise were improper and maybe there are angry notices that that point but that why are they angry notice that information right they say that page and lifeline new information didn't give it to them one piece of that information this is an evidentiary fact as opposed to an ultimate fact because that's when the word fact is used that's what needs to be distinguished and i think th court in jolly the california supreme court made that distinction it's the ultimate fact enough to bring a claim not every evidentiary fact or that would support and what they have brought a claim in two thousand and eight or two thousand and nine that you failed to tell me that the policy was not assignable how could there brought that claim at that time they could have been going to have access to the policy did that they could have brought a claim that said that they were not given enough information and then in discovery sought to develop more reasons i don't know we always tell people not to bring claims until they have i understand the distinction here but what the california supreme court in setting out the standard has set forth is that there are there are enough facts known to bring the action and those ultimate facts and when we look at what the plaintiffs actually did here the real trigger was that they hired counsel to bring this claim the only i didn't thing that they identified that occurred that was the quote trigger was this claim that they had to the service or had changed that doesn't relate to the allegations of the complaint they alleged in the complaint that the florida department of insurance had come down they allege that they don't allege when they discovered it was a public record the council found that council had identified these issues that was the only distinguishing fact the cases have said that's not enough and so in that setting the because the only thing they pointed to was this letter where they said it's not going to be kaufman r collecting premiums and paying out it's going to be page and they said all of that gave us the the trigger i respectfully submit that that was a pretextual argument that they had suspicion so there was suspicion by talley's letter that the court has identified and at that point right then and there the court says you have to go find the facts the facts do not you do not have to wait for the facts to come to you they had at that point they had to find facts and if they existed to bring the claim how would they have determine then do these that did these folks have the right to access the policy the i believe that they did and so the here's what they didn't do they did not ask that lifeline for this they didn't write a letter they didn't do anything other than inquire of mr james and you saw the e mail that was pointed out it was an e mail where he said they have a website and his investigation into this did not appear to be significant but they'd they've all the you know it was more than that as i understand it he sent the e mail but then he had actually had a meeting with all three and went out of his way to reassure him tom sewing is not a good idea this is i know page you just you know he's a stand up guy i mean am i wrong about that well the he had a there was a do was a dinner meeting in october in chicago with them he there's a dispute over whether he said he knew mister he said it for purposes of some an issue here but the so he gave them information about it but as the court has identified whatever he said does not told the statute of limitations against page or life line that he was not acting on their behalf at that time and the information available to them with this suspicion they needed to go forward and figure things out there were letters that were sent by the company identified isn't that for the jury to decide i mean asking questions isn't it reasonable inquiry because that the inquiry notice starts the clock the other part is if you don't have notice there's two prongs the prong to the right the second prong says if you don't have any reason to suspect if you have how should we inquire what would a reasonable person do not go to my i'll go to my lawyer so there are doesn't toll that that part that only happens the tolling or the i'm sorry this is a distinction between a cruel and tolly and this is all about a cruel talk about a cruel for a moment so so they have the either actual suspicion or constructive suspicion and the next question is they're put on so they're put on notice of all facts what they would have done is they would have asked for information from the company about the status and how these about the policies about what we were saying as a matter of law a reasonable inquiry would require questions to the company or some other types of actions is that is that what you're saying well i'm not sure that i agree with the framework where you've said that they were the way that you've suggested that the inquiry is required when you have the suspicion that is that is a constructive aspect of it if you have subjective suspicion if you suspect fraud you have a duty to go find thing well that's i think that with with the second part the constructive piece is when you do not actually have the questions you said i did not suspect i didn't suspect at all subjectively and here's why and then you say that i i didn't invest i have to think you have to obligations at that point why i never had the suspicion one is i have to tell you what i eventually learned and when i learned it and to the second this is the second prong is what we've been discussing is that a reasonable investigation would rather not have located and you're asking us to say as a matter of law they're going to your lawyer and asking him to do further investigation which did not turn up all the things that they they now allege was not a reasonable inquiry in this case there was should've you're saying as a matter of law going to your lawyer and asking him to to to check up on this and then learning from him that he had she says he's checked up and everything looks fine that a reasonable inquiry would have over it would have turned up more because they shouldn't have done it that way in this setting the reasonable inquiry they didn't explain what he did relative to the concerns that they had so in our view that what they did evidence they put out they had the burden under california law to put on evidence of the reasonable in court we don't believe that the evidence they put on was sufficient but the key issue was that whole argument about whether the inquiry was necessary doesn't come into play because they had the subsea subjective suspicion you only get to that is when you're telling the court here's why i didn't have any suspicion here's why i didn't know and sometimes you say because i didn't know i was injured at all or because i didn't know of a certain set of facts in this case they knew of the defendants they had written to their  lawyer about them and they identified all the concerts go back to judge you could is question because i still don't think you've answered judge your cooter says and i think she's right california law says that once you're on inquiry notice you were put your health  notice of everything that a reasonable inquiry would have disclosed i agree with that but i think the way it's framed is there's two parts to it or not but just did is that an accurate statement or california law once you're on the inquiry notice we treat you as having notice of everything that a reasonable inquiry would guess kludgy ok so now it's next question i know you want to say something different but i get to ask is why isn't going to you when they went to their lawyer why isn't that  in this case the law they allege that the lawyer had that relationship and that he was the one that was involved in this and so in terms of that that that really isn't why the summary judgment was proper in this case because the  the argument that they've made that that issue raised the factual issue i disagree with it because they had the burden but the key issue was that that wasn't essential to the decision of the court isn't it isn't what california law provides because piece only comes up when you don't have suspicion once you have the suspicion which they had here which was impeded to everyone else they had the notice this goes with the policies of the statutes of limitation which are twofold to prevent stale claims and to prevent plaintiffs from sitting on their rights they had information in two thousand and five and two thousand and six they waited until two thousand and twelve in this case the information they had was enough and that's why i would ask the a specific allegation that they did not allege that and so that aspect they had inquiry notice of that plus everything else not later than two thousand and eight because they knew what the reasonable even two thousand and eight that the policy itself was not even assignable they had reason to believe in two thousand and eight that fraud had been committed on them and that that fraud encompassed a lot of different factors that's one piece of omitted information that they claim you don't have to you don't have to have knowledge of fourteen different omissions if you say they committed fraud by omission in five ways and you plead that and you later learned in discovery that you think there was a sixth or a seventh the fact that you didn't know of the sixth or seventh claims when you plead your case this would suggest you could split a cause of action this comes to the gravel in of the claim and what a cause of action is so in this case that claim like all the others accrued no later than two thousand and eight thank you thank you i'll give you an identify two issues that i think are important first whether it was reasonable for the trade which to retain a professional on their behalf to do the investigation who they believed knew more than who they reasonably believed knew more than they did could be representative self to be knowledgeable about by at a cause an insurance policies is a jury question and i think the other side saying that that's not really the issue even if even if we say it was that was a reasonable thing to do because we don't  know i don't there's insurance policy the owners the insurance law i'm going to get an attorney i'm going to go professional to advise me so that's the minimum a jury question but there's an event doesn't make any difference as long as they were still subjective inquiry notice that's not really the issue well i think that's a complete misstatement of california law and i think we brief that extensively in our briefs and i would ask the court to go back to the to the briefs and read the cases in particular the hob