your honour's elaine at home in nova appointed pro bono counsel for plaintiff mr pickering may reserve two minutes for a bottle of course this is the second time this court is hearing this case almost four years ago this the only reason the district court tonight mr pickering the opportunity for america hearing on that claim is based on a fundamental error of california law the district court concluded all what happened as i understand it ma'am pickering wouldn't wait long enough for us to do anything about his claim he started filing his own actions in california right after the district court's initial dism that was later reversed by this court he did proceeding pro se on the advice of a jailhouse lawyer attempt to file state court claims before the state court he did not attempt to pursue the eighth amendment federal  the harm that dr an animal disregarded his serious need for medical medical attention the same primary right we don't is that it's the same primary right what our position is that it was not a final judgment on the merits the district court here thought the state court was a final judgment on the merits because it was a general but that is the fundamental error of california law because under california supreme court authority not all well that seems to be pretty good because this action was filed before california and california is suggesting the statute of limitations applied to its claim would not necessarily be appropriate on this claim if they would have been filed the same time then we would have something that would be a different story right absolutely or in this case though there's no dispute that mr pickering's federally on the state claim which is the same primary right that there was a failure to state a cause of action because one of the elements of the cause of action the filing of the claim in advance was was not present correct that's correct your honor and that is not a final judgment on the merits and that is because the state notice provision under the government claims act act is not quote applicable to the one nine hundred eighty three claim and that no wait but when there are different different legal theories and the same primary right you often have different elements to a cause to cause of action some of which are present sometimes and some of which are not the fact that you pursue one there's a judgment on the merits then you pursue a second legal theory where maybe a particular element wouldn't have been required you're nonetheless barred from pursuing that correct under california law your honor not under california law under the cadence decision from the california supreme court one thousand nine hundred fifty two which has been cited recently by the california courts of appeals a prior judgment is not a bar to a subsequent action if the grounds on which the prior judgment is based are not quote equally applicable to the subsequent action  in the kidney decision from the california court of appeals that principle was applied to this state notice provision well it would seem and i'm just following up on my colleague it would seem to me that we're not really talking about whether you have to prove the same elements because if in fact a claim in the california court were dismissed and it was a final claim and all the elements were there and they determined that that was final it would seem to me then at that point as to that particular claim it would eliminate any claims he even on other actions which might be filed and that was in fact her point so why is the government claims act any different that is because the government claims act notice provision is a condition precedent to filing  claim for damages in state court it is not a condition precedent to a federal one nine hundred eighty three cause i understand that but there could be elements that were a pleasurable in a state court action which are not a to the action here and race judicata would still apply there are for instance there's no question that california would suggest that compliance with the g c a is an element of the cause action against the state and therefore since is an element of the cause of action against the state and it was a finally finally adjudicated how do we get around that it is then jay race to get caught u a subsequent action if that ground is equally applicable to the second action and to the condition precedent of filing a state notice claim is simply not applicable to a federal claim california so let's move to the private right of action because that was his next if you will claim it was made in the underlying case and there was no question the court said there is no private cry to action against the state  that would seem based on the general premises has two same parties same cause of action and you've agreed that really the same cause of action then why is it not a political that is also not a we don't quite agree with you about the california claims act at that point is there any way for you to save this client the cut at the california state action is terminated and this was this was the ground on which the district court claims for collusion was the ground in which the district court dismissed this claim so our our position is that the california public interest to manifest injustice doctrines this is a case that's unlike a lot of other nine hundred eighty three civil rights cases this is a claim which this court held deserves a hearing on the merits and this pla never had that hearing on the merits he's been attempting to get it since twenty eleven but this really doesn't seem like a question of a substantial question all this is about is whether the chief medical officer  there is no effect on any other prisoner litigation near it's a chief medical officer of a state wide prison and mr pickering deserves to have the merits of his claim against the chief medical officer played out in court if i may reserve the remaining time for a bottle you good morning and she sees me get myself approached and i'm deputy attorney general jamie danson and i represent chief medical officer and the defendant in this action now california's rescue to caught a doctor and finds cause of action based on the injury alleged and requires that all legal claims based on the same cause of action be brought in a single suit mr pickering has to doctrine and then two times based on the same alleged injury because his state action preceded the final judgment first the only issue in this court is whether california will afford that state court judgment a claim precludes the fact but as i understand it you're already agreeing that as to the statute of limitations ground there is no trace judicata correct your honor so we're really left with the government claims that ground or the private right of action around correct yes honor so the toughest case for you i think his mckinney if i may know how do i get around mckinney well the reason why mckinney's equally applicable exception all procedural defects the prior actions were dismissed for failure to amend a complaint or failure to serve a complaint mckinney did apply equally applicable action to the government claims that dismissal because it had couch the government claims act requirement as a procedural defect but that ruling that portion of the growing was ultimately overruled in the first private supreme state hidden by the california supreme court in the body decision and not decision held the california government claims act as an integral element that must be alleged to state a cause of action and explicitly holds that it's a substantive element of a state law claim well but when i do with mckinney words says only race to the card where the ground on which the demur in the former action is equally apply coupled to the second one and the answer is not preclude and then mckinney goes on to analyze whether the new filing fixed the old filing district court here looked at it where there was not a substantive dismissal on the merits in those conditions they look to whether the defect can be cured because the original court had given the plaintiff a chance to cure the defect that's not the case here here mr action was dismissed with prejudice for his failure to comply with the government claims act and under supreme court precedent in body which is a two thousand and four decision so posted all of the other decisions this hold that it's a substance an element a claim and body explains why body explains that when the common law sovereign immunity doctrine was volage by case law the california legislature responded immediately by reestablishing governmental immunity in the government claims act not be traced back to slavery vs black would there the california supreme court expressly held that dismissals based on common law governmental immunity have a close of effect are saying that you've got to comply with filing in order to have a cause of action against the state right yes your honor and body concedes that the government claims act litigation is not required in the second and they're the plaintiff had brought suit in federal court under the clayton act alleging a federal cause of action his action was dismissed for failure to state a claim because he couldn't meet one element he then tried to bring amanda's complaint in federal court to bring a state law claim and the court dismissed that as untimely book cardo plaintiff then proceeded to state court and brought a second action again trying to allege the same state claim where do we certainly could but i don't believe it's necessary here the california supreme court and appellate court decisions so that in cases where the dismissal is on a substantive element simply for the purpose of notifying municipal defendants so they can investigate perhaps the link is without litigation it doesn't change any of the facts which constitute cause of action by the plaintiff i have two points in response to your honor first is that it's not a mere filing requirement it's the process that they go through to waive stock governmental immunity and the second point but it's a process you said yourself this court held that the only issue in these rescue dakota cases where the first judgment under state law is what a california court would afford a claim for close effect and here the california supreme court has indicated because mckinney said all the things you want to say and then i went ahead and analyzed the case and said they tried to determine whether the new filing fixed the old filing and they wouldn't have had to do that if they were going where you're going that portion of the mckinney decision was overruled by the body decision which came twenty four years later and established by the california supreme court that the government claims act compliance is a substantive element and so that's why well i don't  jimmy was saying on that if that's the best you got on out of body i mean i read body and i tried to see that if it was any different with mckinney frankly i don't think it is any different as we knew at the time mckinney that compliance with the she ca would be an element of the cause of action but nonetheless and mckinney though may be an element it didn't make any difference at the time of mckinney however the court considered the government claims that compliance to be a procedural requirement and in body the court goes through and explains that although many hearts in california had differed it was finally setting down the role and body explains that it's a sovereign common law sovereign many doctrine was replaced by the california government claims act and that it is enter cultist cause of action it must be alleged and is a substantive element there's no stronger language the california supreme court could have put forward to