i mean the district court in this case applied to claim splitting as the basis for dismissing my client's breach of contract action against band gird fiduciary trust company a separately incorporated entity a regulated bank that was not a party to the st action and who actually entered into a contract with dr salk in the st action was not pending at the time the court does that was not pending at the time this action was filed therefore as a matter of law as announced by this court the supreme when you say it wasn't pending what law are you relying on federal estate law to say that it wasn't pending actually both because a judge at the time we filed this action each judgment had been entered in the case we're just talking about it was still subject to appeal correct yes and both i wonder state law federal law the state courts of california that we follow that right is that true after some talk yes there's nothing that changes it i mean that's a caliphate that's a california supreme court is they only true though when it's a federal question case rather than a diversity case that the earlier case that's neither of the none of the cases the ground because if you look at constantini and the cases that it's talking about there federal issue because here you have a federal court sitting in diversity so is it not the state laws about claims but in that we should be applying here not the federal if it's procedural right it is procedural but again state procedure is a federal judgment is fine but even if that were the case it doesn't matter because vanguard to do trust company wasn't a party to  a subsidiary parent relationship but are they related entities and they're controlling these accounts and they're all under operating under similar contracts i don't understand how they're not in  and we raised that in the st case and we said wait a minute the the parent vanguard group there subsidiary over here is subject to this code section which comes everything from for contract you can not withhold the money from dr soft and you can't withhold the money from mr pollock once and less the specifics of the statute have been satisfied and there's no dispute that they were and this particular entity was subject to that financial code section yes or what is the law that says that entities that are in pretty can't have different different legal obligation trust company is in privity with vanguard or the vanguard group and there's a judgment against the vanguard group then they're bound so that the other way around the supreme court in tailoring rejected tells us whether it's the same parties and then we've got to question whether it's the same issue i mean i just a very basic level as an hour asking under state and federal law it's a similar kind of question under the same issue was not litigation the district court you have to have the same parties and again it doesn't work that way just say well ok you sued the parent and the subsidiaries in privity with the parents so you should have sued to the subsidiary that's not what the l is no privity and even if there was it doesn't work that way that your client is the same entity so why can't these various vanguard entity is assert claim preclusion against your client who is clearly the same entity and both had the district that the contract action should go forward because of th fifty which is not part of the contract nothing per se the way you phrased the question i think is the answer but the how we get there is we have a contract and under california law there's no dispute again we're we're on a motion to dismiss y changed by a will it cannot be changed by a trust and according to vendme documents it can't be changed unless somebody tells vanguard it's changed both for stock and dies u someone who is separately liable under a contract in a separate action there was no mandatory jointer in this case we did not and there is no evidence this is a motion to dismiss there is no evidence beyond contract have you pointed to and what provision of that was violated it's a complaint and a motion to dismiss so the allegation is that they've violated the contract they breached the contract by failing to deliver the alleged with the terms of the contract were and those allegations are taken as true but don't usually if you reference a contract in a complaint it's incorporated by reference but we don't even have it so i'm not sure what you're incorporating by reference or how you're going to solve this problem that you don't have a contract when you say usually i mean it's there when i mean when a contract is reference in a complaint it's incorporated by reference but then you i mean sometimes it is amend to more specifically allege the terms of the contract but the district court didn't decide that issue the court said it's claim splitting and she didn't and the district court was just wrong and i was always are my one you know his i want to tell you what the contract is because it's the custodial account agreement from the other case that he's pretending he doesn't know what it is and that agreement he doesn't have a right to the i or a except through the process set forth by vanguard in the custodial account agreement which says he doesn't get the money in till he submitted paperwork that is in a form in manner acceptable to vanguard so he does not have it contractual right to end as we just talked about for half an hour there is a freeze provision they gave us the right not to turn over  wasn't argued in connection with this action i'm sorry on that what was that argued with respect to the separate contract action well we did argue that there was no contract breach of contract because there is he does in the lead what it is that there is a breach of contr procedural device by the court controls its docket it is based on principles of res judicata but it is a separate doctrine under either they lose if if this really is federal claim splitting which lets we might have some doubt about that but say it is federal claim splitting then wouldn't we be applying federal rules about what's final and wouldn't that mean that the earlier case was already final so it wasn't still pending so it couldn't be claimed splitting right st of all i don't know that the law if analogy for res judicata applies the same in cl i'm saying is that you don't necessarily need better in court we don't consider that to be still pending under race judicata all and what i'm saying is that it's not necessarily the same under claims and so what case tells us that we look at some other rule about finale for claims well i think the adams case says that it we would apply claim splitting if it is not final but it doesn't say that we want to play it if it is final and it doesn't it doesn't matter here because at the end of the day if it's not final it's claim splitting it is final it's difference whether you apply federal law or state law do you reach a different result you don't reach a different result the only difference might be whether you apply claims waiting a raise to the cost of at the end of the day this is the same cause of action that we just spent half an hour arguing about and i mean i again would refer i think this case is controlled by the adams case from the th circuit if anything the facts here are show that the district was more right to grant to dismiss the claims or claim splitting it does not matter that they're not the same defendant if they are in privity and here not only were they in privity but in the st case plaintiff tried to hold the parent liable for the acts of bangor producer a trust company the subsidiary and he judge that she said none of the statutory provisions would override vanguard's contractual rights or so she decided that the contract trumps th fifty anyway and to your point what is one thousand four hundred and fifty had to do with a breach of contract claim anyway establishes that there is always pretty between a parent and a subsidiary i don't know that there i don't have a case that says there's always pretty between a parent as it aired but i do have the adams case in which the court said there was pretty not between parent and subsidiary that between employees different employees i mean if that is proven he certainly it parents of city or relationship is proven and i also have the plaintiffs own allegations that all of the defendants were agents and acting on behalf of each other fifteen doesn't come up because they're serving a very confidently but we actually know a lot of tells us that's how california law works well we have a statute that was specifically enacted to protect depositors and ensure confidence in the banking system so i believe that public policy makes clear that it would trump a provision because why have acted if you can if the bank could simply say yes or do you not we're not going to go with that you don't have to we're not going to apply with that that's in our contract that wouldn't be upheld but it's an issue that nobody decided yet that that's possibly an issue to be tied up in the district court in the st instance is the state law question the right i think so yes other questions by my colleagues oh the case is just argued are submitted