client after the job was done which went basically from june of zero eight to december of zero eight everything seemed fine three months later however the owner of the building called my client back and he said you know we're seeing all these tiny little swirls in our glass excuse me file i was expecting about all the forms i expected the invoice would say one thing about choice of law and that the  i can't remember exactly what documents there were i don't know if i saw them i couldn't find the documents for the sale and purchase to see whether there were conflicting choice of law clause clauses or other limitations that might affect the case  are they in the file and did i miss some there are none your honor the choice of law issue comes up i'm arguing that today because the products were deliberate and therefore title passed to my kid in florida it's not about it's the forms that i was talking about just that there are none there are delivery forms but there are no forms that have conflicting provisions about what law flies and leave there's no choice of law in the delivery forms right correct on the use of the stuff i know it was multiple shipments did the window washing company in florida start using the stuff when the first shipment came or was  was there enough to get going without the risk of interrupting the job or was it the sort of thing where you have to wait for pretty much the whole shipment before you can start and or is there nothing in the record to say one way or the other they ordered what they needed periodic lee judge it was not a situation where you needed to have everything on site the first time of course you'd run the risk that your man might run out of material so what i was thinking was if i have no idea the quantities balls were making these numbers up but suppose you need one hundred buckets to do the windows and you get ten buckets well you don't want to put up your scaffolding and send two people up the building and then have to risk it all that stuff is just good really hanging off the side of the building for six weeks two year waiting for another shipment on the other hand if your first shipment is enough so that there really is no no because you have not shown a conflict excess now what we're arguing is that florida law applies we already have a ruling the california law applies we do have an argument today why florida law applies to the same aren't we made below cummings ank vs the supreme court it is california case and what it's evolved was a california couple that bought it wanted to go they bought it but they had it delivered to nevada after they had it delivered to nevada they went back home to california they had a serviced in california and the service apparently wasn't great and the engine was a great so they tried to make a claim under a consumer protection law in california and the courts said no you don't get to do that because you bought that vehicle in nevada and the title passed to you in a vat so our argument was that we bought these bottles of bio clear they were shipped to us for the contract and the title passed to us in florida and so like the title passed to that couple in nevada it was that stuff i wasn't sure about the analogy there my thinking was with the winnebago use of motor vehicle registration of title and probably they would take delivery in the vat and register give title in nevada so that its title to the owner instead of the dealer in  and to avoid the california sales tax but i thought that on this kind of stuff title would pay us in california when it was shipped unless there was something in the forms that said title didn't pass until it got to florida that's just about accurate judge except i'll clarify and want to respect in less there's something in the contract doesn't have to be a form could be a verbal contractual agreement where title was going to pass through enough and that didn't is not something that came up in the case because again in its infancy it was it was gone before it started it's not in the u c c is adopted in california the title passes when it's put on board with the shipper i believe that again goes back to the contract issue and what the parties intended well the california commercial code to seven to five to is a cruel upon delivery roll applies to your warranty and contract claims and then when the so when the window damage now or search should have been discovered is irrelevant as no it's not because there are several exceptions to the statute limitations in california your honor dealing with various for example for example when there are multiple shipments the continuous accrual doctor last delivery with delivery i missed that what with the authority for the finding for you right now again judge that's a fact that did not come out through the discovery but you have different you have different and voices do you not so you argue that california continuing a cruel doctrine should apply to your warranty and contract claims such that each playing is a separate breach but some of which occurred within the limitations period and others not so what's your best case to support your argument that the d d defendants audi what's a continuous one susceptible to recurring brace breaches i every time there's a modifier i my parent was up what i mean apparently well that's the case that i just read to you it will mean you have a what's this case this case we never got to that point there are separate invoices so it did you front this information in the motion in our motion yeah you're clint you're climbing perhaps we don't know well did you raise this in the district court we didn't have a chance to raise the suit in the district i don't understand something here we've got these questions where there is not discovery yet so we don't have facts was that was the case cut off in some way a denial of fifty six f motion on the summary judgment and where more was needed or did people guess we have the response to the medical point ten twenty three lotion i c e s so what you're saying is because it was twelve b six of the summary judgment it was before the discovery would have been done for summary judgment so you really don't know these facts correct or are you given the opportunity to present to the court the stuff that you're saying now is not in the in the record committed to just drop a bomb on you or do you have an opportunity to tell them just record postponement of that hearing based on a lack of discovery why not i mean this is an appellate court you're telling us things that should have been done in the district court aren't you i don't have an answer it should because it should have been completed till the lowest delivery was made that sort of thing if we had those facts at the time we could have and we attempted to please him later wouldn't you though i mean i can see where you wouldn't have the documents from the california company  but it seems like you'd have the documents from the window washing company in florida well and also the knowledge from the window washing company people all i can tell you judge is that you got a painting contractor in florida you got a four year old project almost and the documents were unavailable we ended up getting the documents from the other side so you basically needed your own documents from the other side and because the paying contractor in florida doesn't have them i get it now thanks  then the next doctrine is the equitable tolling doctrine and that comes in where you can't discover for you don't discover it problem for some reason and we pled that although apparently not adequately and what we said was you guys you two elements one you got to say when did you discover it and two you got to say why did it take you longer that scott we fled when we discovered it because we played when the owner gave us the information has meant you know we're in a different part of state but that assumes that discovery is a factor and when the statute starts to run it does the discovery when you discover it and then you'd second part of it as you said you have to show that you couldn't have reasonably discovered it and we didn't get a chance to plead that more specifically i believe we had put it implicitly in our complaint because we explained that we were in deerfield beach the owner was in orlando the owner didn't even discover it till three months after we left i guess your theory would be there is no way to discover it at the time delivery until you put it on the windows in the windows get messed up by the stuff instead of queen you would know not only that so you can sit on it for ten years before you use it i think would be unreasonable what i what we're saying is when it was applied was one time during the year three months later the sun had changed in the sky there was now a different amount of sunlight from a different direction on this building and that's when the owner of the building who was actually on site discovered it and called us back do you want to save any trouble seeing what governmental interest california has got a manufacturer in california who sells stuff apparently nationally this was sold to a florida painting contractor for application florida office building what interest would california have in in controlling the terms of the purchase and warranty well california law is it's clear that the federal courts in a diversity action such as this case are to apply those state substantive laws start with the state substantive law and choice of law and the choice of war issue in this case seems to boil down to multiple factors a major one of which perhaps a controlling one of which is the california governmental interest versus the florida governmental interest and what i'm wondering is what interest california have once you do apply law of the form to the issue of what is the choice of law doctrine then you look for the governmental interests and i'm trying to figure out what the interests of california's i think t enforce its own laws that we have which which laws well we have the california commercial code section twenty four zero one two which says title passes to a buyer at the time and place at which the seller completes the performance  of the work how do we know when performance was complete if we don't have the invoices and why can't they plead the case that performance is a completed until they get their window washing fluid up because if the contract does not require and the only contract here would be the purchase orders if they don't require that the seller deliver the goods directly to the buyer then the title passes the buyer at the time of shipment and this is the case here time passes they had the the product at the time of the shipment was made at that point in time well no they didn't they they would not receive the product with the time shipment was made to be a physical impossibility because of the three thousand miles in between they could only receive the product when shipment was completed correct but this commercial code section states that it is complete at the time that shipment is made by the seller and that was done here in california there was nothing in the what i'm wondering is whether they could had the judge allowed amendments of the complaint whether it could have been pleaded in good faith that there were they were actually raised at the hearing on the motion for leave demand and the motion to the the transcript of the proceedings which is in the in this supplemental record excerpts filed by appellant and it would be tab for and there is a transcript there and there was oral argument during that hearing though it sounds like you just answered this question differently from the way you answered the last question i asked if it was documents roof it was borders talking about the documents and you would said it was the documents but now you're referring to a transcript which means we're talking about well those both civil lawyers were talking about the documents that my client produced in response of discovery and counsel brought those documents with them and presented it to the court in fact they filed it prior to the hearing so those documents so if i was if i contradict myself i apologize both the there were documents present of the court and there was discussion as the transcript indicates filed then my client would have simply filed another motion to dismiss the allegation i think what they're saying is they don't even know what to say in a second in the complaint because they don't have discovery yet that there was discovery done as  there's always some and there's never all possible and cases go on something somewhere in between correct but they are only allegations taking allegations of first amended complaint and even if you consider the allegations i n the post second amended complaint they've got a sale flaw in that fatal flaw is that they allege that they not only ordered the product in june of two thousand and eight but they began using the product in june of two thousand and eight that is why their argument that there were multiple orders doesn't hold water why wouldn't it be inherent in this case that there would be delayed because the defect could not be expected to manifest itself until later well this stuff is window washing forward and so you've applied the window washing fluid to the windows and some time has gone by so that you can they can dry and whatever happened so the glass happens and you can see or not see through it why wouldn't defect necessarily be discovered later than rather than upon receipt of the window washing fluid well first there's no allegations anywhere about why other than the fact that because of the position of the sun in florida it can be seen i mean maybe if we were in alaska that might be a little more believable but assuming that that's true the fact is that this is as you mentioned it's window washing it's a paste actually once you put it on either it scratches or it doesn't scratch the window it didn't they didn't apply it and then months later also in the scratches developed it either happens when you do it or you don't they were applying this you're saying you can see the scratches immediately when you put the stuff on well there's absolutely no allegation as to why the they don't say they don't state  in any of their pleadings that there was some kind of a period of time in which the scratches developed or because there may be something else have been done that caused the scratches to occur it's  there's no allegations whatsoever the only allegations are we use that and proposition you were the california law applies and suppose we accept the proposition you were there under california law the statute starts running when the shipment is made when it's received or not when the product is used and defective discovered suppose we settle that weren't some of the shipments still made within four years of when the complaint was filed well yes so that would be true but why wouldn't  the damage from those within four years shipments be actionable even even accepting all of the propositions you were because they started using the product from  the california law that if you get multiple shipments the statute starts to run from the first shipment not the last well they would have had a full month from from june of two thousand eight in till july when they claimed the second shipment was made where they actually used a product they claimed they were using it for fourteen hours a day to have discovered any defects in the pot and i'm confused you're saying when they discovered it doesn't matter know it does of when well should have discovered it well but under twenty seven twenty five in federal common law which is informed by u c c to dash seventy five california commercial code two for a one it says it's the date of shipment and there are exceptions that something for ship within the four years right right but so those are actionable aren't they but this but you've got to go back to the date of the first shipment because from the date of the first shipment is the product was being used i wanted to see the truth of limitations start running even before shipment of the product it doesn't start after it after it's been shipped and when they start w or whether other product was shipped outside the four years i'm sorry say that again you're shipping multiple times that some are outside some are inside why aren't the inside ones actionable means that fact that there were outside ones eliminates any possibility of shipments inside falling within the period in which they would become actionable well yes because because they should have had reasonable should or should have shut us yes that isn't the way this works you look at the certain dates flight in the the date that so doesn't make any difference whether they should or shouldn't have on the date you look at the dates that's what triggers the running of the clock doesn't mind the running of the clock are positions running of the clock began in june of two thousand and eight when a group that your position that you've got to show that you know that's that's what the killswitch will code based on twenty four one that's what it says now they are arguing that well it's because there's multiple shipments  so they were using it and i and i understand their argument about that one what was your one name to have and internally inconsistent arguments do you want that what you don't want the ones that are inside the time to count he wants to have everything count and but we're tell were citing what is it but then you're both arguing that the same statute basically applicable argument is the date begins runs from the first shipment all the shipments i got that but was there one large purchase and was it was it taken care of in multiple shipments of one large purchase or did they say will purchase five and then later on the say now we want six now we want seven what is what's the factual scenario here there was they're all about equal the some a little more than others whether or not it was one purchase another purchase and another purchase or the individual purchase and now i understand what you're asking and if there are individual purchases they some of them fall within the period which they can become actionable but they were all for the same purchase and he argues if it's one purchase he cites the case and said that if they had a cruise so you can't have it both ways it would be their individual or one purchase it was for one project and they were in the shipments were delivered a different time but that's the one it's for if it's one purchase  you get an order for one hundred buckets and you say well we only have twenty buckets on hand now we'll send you the first twenty and then you send another twenty and another twenty if the deal was for one hundred buckets it would seem like the seller has not complied until the hundredth bucket is shipped which is within the four years so you're liable for the entire thing and if you say that they bought twenty five buckets we sold them twenty five and it was shipped before the four years no claims on that we sold them another twenty five that was shipped before the four years no claims on that they're barred and then they bought a third and a fourth twenty five within the four years they're not barred by limitations and it seems like you're saying it's one shipment for purposes of discovery but discovery doesn't matter because discovery the time from the shipment in which case some of the deliveries are barred and some of the deliveries are not barred and i just can't understand what you're saying very quickly what i'm saying is a it doesn't matter what matters here is based on the first shipment they started using our product and upon using that product that would have given them reason to discover if they had used any reason will go with you standing in front of me but that that's fine as far as it goes let's say they do get the first shipment they apply and it's it's garbage there's just rooms windows instead of cleaning windows one thing they could do is not buy anymore and another thing they could do was to within four years but they did buy more  in this case because they didn't know it was going to mess up the windows if they did buy more why don't they get four years from the subsequent purchase because they're claiming that everything that they bought was defective not so why wouldn't they get to claim on the deliveries within the four years because the first delivery in shipment or delivery didn't know it you're saying they shouldn't known that anything from the seller is garbage no it's not made the subsequent purchases but that doesn't affect the statute of limitations well i've never seen where earlier knowledge that you shouldn't a bought from this vendor cuts off your right to sue when you got the earlier knowledge not when you made the purchase but that's that's not what  responding is arguing spawn is arguing is when they had it they had the opportunity they they have to use reasonable diligence in determining whether or not this product was defective they would have known reasonable diligence is about whether to buy the stuff don't you just have to have manages i thought in intimidating damages for two different things right if you paid damages to the building owner you might be entitled to insanity and factor but if you never had to pay the building o suffers loss or damage that is at the time of payment of the underlying claim payment of the judgment they're on or payment of the settlement there who may endure you don't have a judgment or settlement a few hundred you're confusing damages what we have is the law in california and in the cases cited here i don't know about that case doesn't support your proposition at all there's a difference between that don't they're talking about when the claim for in them any accrues not the differential not saying and then that is the same thing as damages i do have it you have a judgment are or a settlement no bickering no that's out i don't think that's accurate milt law in california also says we will educate you ok if that's your  controversy yet if there is no if there's no judgement or settlement there's a settlement in this case that we didn't get to plead because the owner demanded performance we settle we gave them the performance and if they were going to say we charge too much for it fine but there is a settlement we just didn't get to have a