question in this case has to do with when the plaintiffs played electrical was on notice that gave rise to a duty of inquiry as to its claims against the defendant under writers labs this is a fraud case the gist of the latest claims against underwriters labs is that underwriters had knowledge after gaining that knowledge withheld it and as a result of that deceitful conduct plant sustained injuries the crucial question is when was platt noticed such recalled could have heaters that platt was distributing based on the fact that those heaters were listed with mark it is certainly whether it was on notice as to as to the fact that you well discovered as it turns out sometime in one thousand nine hundred eighty eight that the cadet heaters were failing in the field after purchase and installation and were causing fires and serious injuries the fact is that only in late two thousand and one did kalat have any idea that whole gist of this action is the fact that plaque relied uls mark its listing of could have heaters as meeting its safety standards and continue to distribute those heaters for that eleven year period until one thousand nine hundred nine without having any idea that you well was aware of the fact that the heaters were hazardous and decided to keep it a secret the crucial question in a non disclosure case such as this is when did the plaintiffs have any reason to suspect that the defendant had the crucial knowledge and to disclose it and the complaint in this case in this case they really disclose clearly alleges that it was only during the course of a class action lawsuit in the state of washington where platt was a defendant during discovery in that in that action  that the the heaters were defective and made the decision to continue to listen to those leaders and to not disclose to the public that there were these problems with it in fact one of the functions of you well in addition to testing products when they're new is to investigate complaints about products after they've been placed into the field and that you will has a department that does this investigation and in fact did an investigation and learned of the problems with the good as heaters during the late one nine hundred eighty s and throughout night and the one nine hundred ninety s and kept it a secret continue part of the you well process it is when it discovers problems like that to delist the product and no longer authorize the use of its mark in this you will have when gage and deceitful con well i would i would guess profit they continue to charge money to the manufacturers whose products they list and allow them that the users were defective or if they had to have notice to see full conduct oh i think that's exactly right i think that it is not sufficient for the nature of the cause of action that has asserted in his complaint for it to simply have known of the defective condition of the plant heaters the hazard for hazardous propensities of those heaters but what is crucial that for for plaque to file a lawsuit against underwriters laboratories based on this d c because of action it was essential that they be aware of the fact that that underwriters laboratories did in fact engage in deceitful conduct that the new material facts that it knew that just give it are such as we're relying on their mark and it conceal that information i facts that's what that is a crucial element of a fraudulent concealment cause or action and if there was there's nothing in this case that would indicate that prior to two thousand and one plant had any reason to suspect that that kind of deceitful conduct had been engaged in by underwriters laboratories in fact had pla filed this lawsuit against underwriters labs in one thousand nine nine hundred i expect the lawsuit would have been dismissed because they would not have had any factual basis at that point to to  this cause of action and quite possibly would have been found would have had sanctions imposed on them for filing a lawsuit without the factual basis for doing so in one thousand nine hundred nine and is distinguished from two thousand and one also also i have covered this in my brief and i don't want to overly belabor the point but the controlling law here is that law that has been pronounced by the california supreme court with respect to how the discovery rule is to be applied in california under circumstances like these and the most recent and very well  california opinion in it's very relevant is a court of appeal opinion in the vedic case which i also cited because they both talks well fox talks specifically about california law as as it relates to the discovery rule in terms of the statute of limitations and vega talks about the law of the elements of a fraudulent concealment very very important aspect of this case is that in opposing the two motions you're on i would use using for a minute i am getting over the flu and my mouth is very dry i just will start your clock again thank you platt specifically requested in opposing the motions to dismiss in this case that if the district judge was inclined to dismiss to find that there were there were pleading defects that claque be given the opportunity to amend the complaint to more fully allege the fact that it did not know about it at the time even though the time this complaint was was filed but learned during the course of discovery of this lawsuit learning facts in addition to those that it had discovered in two thousand and one in the washington action plat has not ever in this case had the opportunity to amend its complaint and as i indicated in our brief we believe that granting the motions in this case and not granting plats plath the opportunity to amend his complaint is error  specifically at at argument in the the last motion in this case in two thousand and five platt at the very end of the of the argument before the judge renewed orally its request that it be allowed to amend the complaint and when the decision came down there was no mention whatever of the request to amend and i suggest that at the very least before platt is thrown out of court and not allowed to pursue this cause of action at all that it be given the opportunity if necessary to amend the complaint to set forth more fully these allegations about cause of action at least to get to get it to a trier of fact to to have a determination made as to what the facts really are in this case i think what i would like to do is courts the plaintiff need not be aware of the deceitful conduct in that case in the solomon case the plaintiff allege that the tobacco companies had engaged in a long long period of fraudulent concealment and the argument was because solomon was not aware all of the fraud the cause of the action could not accrue the ninth circuit looking at california law said that is the wrong legal standard for a cruel under california law according to the court the standard is simply did the plaintiff that we suspect that someone had done something wrong to him well allegedly did something wrong so what are those facts when the complaint you admits they have to play out purchase these heaters relying upon you all mark the and it knew that it had suffered damages so under the solomon decision did player have a reason to suspect the you well had done something wrong based on the allegations of the seem to recall that part of the court's rationale was that this was known the hard are from the sort of nicotine was known and that that may have affected the reasoning so does that provide a rule of decision that would be a clickable here i believe it does your honor because the central point of inquiry should be hundred ninety nine what was publicly known just like in the solomon case at the time their cause of action on the edge of the accrued at the time that litigation should have been filed what was publicly known certified by you well so this was not a situation as in some of the california cases where there was limited knowledge about the problem either in an obscure press piece or in some sort of public filing this widely reported in disseminated problem could have caused an injury now counsel relies on the fox decision and says that may change the solomon analysis fox simply  saying that's incorrect but do you have any case that says that's the right characterization of you know that wrongdoing covers simple knowledge like that you know sharon i would say solomon  negligent misrepresentation project concealment isn't there an element of scientists or and those kinds of the causes of action that made this case a little bit different from the cases that you're referring us too in terms of negligent misrepresentation in your honor it is again a negligent action in terms of fraud there clearly has to be  answer but i would again refer to the fox case in the no gar case for the proposition that one need not know the underlying legal cause of action one not need not even know the particular elements of the cause of action under california law it is sufficient if one understands or suspects that there has been harm that there is causation and  contact that violated the duty and if that's true even if it was that which then conduct that would start in your view the statute to out should have suspected that new wells alleged misrepresentation of safety had injured them they have the elements to raise a cause of action for negligence and negligent misrepresentation and had they done so with initial disclosures and discovery they would have been able to have filed a fraud action within the statute of limitations period so in my view the law in california as supported by the california supreme court would say that in view of the admissions in the complaint and in particular the admissions consulted with the c p s see it could have consulted with other state government our government authorities it could have consulted with you well but it sat on its hands and waited until two thousand and three plat says it may be fair to say as did the district judge in this case that once learned that the heaters were defective and posed a safety hazard it was on notice that you  once one is aware that a representation is fair actually halts the cost of the spiritual limitations on a fraud action begins to run and judge white relied representation was spots and hence the statue of limitations began to run your honor i'd like to briefly address for your honour's i'd like to briefly address the issue regarding the amended complaint it's important to put this in context in nineteen excuse me in two thousand and three platt was given the right to the ability to manned its complaint after the court  so you don't have to address that now thank you i would just on that point i would note that i believe the referral of certification to the california supreme court dealt with issues of the bottle pr limitation applies to a cause of action the cause of action in this case is deceit the solomon case is a nineteen is i'm sorry is a two thousand and two case facts cases of two thousand and five case along the law that controls here is the law that has been pronounced by the california supreme court and setting aside for the moment whatever action the court may have taken yesterday which we can both address when the appropriate time the most recent articulation in terms of the discovery rule is the facts case solomon cases quite a different case and it's founded page eight thirteen of the fox opinion where the court said if a plaintiff's reasonable and diligent investigation discloses only one kind of wrongdoing when the injury was actually caused lemon years see enter is indeed an element of a fraud cause of action and i would like to suggest that it would not have been possible for platts to have filed