granting summary judgment and in denying debbie sylvia a jury trial on her prevailing wage claims the brief from apple these states in the beginning that this case concerns the sole question of whether debbie was intitled to prevailing wages for monitoring construction work performed by others that's not the evidence in this case in fact what debbie work on a prevailing wage job to pay prevailing wages to n inspector and surveyor even though labor code section surveying work and the decision city of long beach versus department of industrial relations the the court concluded that the prevailing wage law includes inspectors and surveyors among those workers deemed to be employed upon public works be more helpful i think if we framed the issue instead of just arguing what you're arguing here i'm not quite sure i'm following you what's your point certainly that that ms sylvia so under the relocation agreement as well as each subsequent amendment ms sylvia was m cia's inspector representative on the project as the pres for initial project and the subsequent projects that m c i was required to pay prevailing wage for a full time inspector on this prevailing wage project so the whole question here that we're considering on appeal is whether the district court correctly found that missile hit represented by you apparently abandoned her is inspector theory claim  and are you saying that the district court was incorrect in finding that missile he abandoned her inspector theory claim and if so why thank you honor the so to go back in sequence miz sylvia files the nd a minute complaint subsequently and while discovery was still open ms sylvia's serves as an expert report that has classification not the work she did but the locator classification in the expert's opinion war closely aligned with the work miz sylvia was doing but you agree or don't you agree that you abandon the inspector theory and that's where the confusion may be your honor there's the inspector classification and that's a that's a classification  for purposes of the prevailing wage law it's it's the building construction inspector and feels holes and material tester classification and instead the expert said your expert or our expert yes your honor said that it's more that the work she did the same work no not applying any any different work that what she did was a locater job and he said that and that report was served within the discovery time frame on the eve of the deadline before yes you are back before discovery closed and then which would have given you enough time had you chosen to make amendments to the procrit documents to give notice  officially to the others side to tell the court need to dish will time because based on your expert that apparently you've found at the very end close to the discovery deadline but you did none of that  i may right that's and correct we amended our are in iraq a tory responses and provided the expert opinion within the discovery why didn't you amend your initial disclosures supplement your discovery responses  moved to mend the complaint after the district court issued its partial summary judgment order because discovery had closed your honor that at that point that point was was in january two months after discovery it closed at the hearing i think it was at the partial motion for summary judgment here in the court i asked you i thought the whole point as i said at the outset of the hearing was that you weren't claiming that she that the work she what she did was analogous to the inspector determination plaintiff's counsel responded right that's correct or often are and that's that if i may  that's the classification issue not the actual work she was doing that the actual the classification was as the expert had said at the close of discovery and as we supplemented our iraq at took the experts deposition well before they move for summary judgment and the other important point to make your honor is the motion for partial summary judgment was filed more than a month before discovery had closed so discovery still open to the defendants file a motion for summary judgment we during the course of discovery and at i'm not going to dispute with your honor that it was shortly several weeks before discovery closed but after we had obtained additional information in discovery from defendant and then we had enough information to until september we do we deposed the m c i representative pamela brown in november we provided the report from the expert in october and it was further bolstered by the testimony of pamela brown and so the point i'm trying to make your honor is it was not the work debbie sylvia was doing that changed at all it was simply the classification that she fell within for purposes of the prevailing wage law and then what gets lost in the district court's summary judgment order is that for purposes of the partial summary judgment she denied partial summary judgment on and then throws that claim out without any discussion in her summary judgment order thus ms miz sylvia lost the per diem claim which was  unrelated to the classification it was whether or not she was entitled to be paid a purdy i'm which she asserted she was and the district court never ruled on for purposes of summary judgment and that's why the issue is did was was the defending int at all harmed by this what i'm going to call changing classification the other issue and i just want to touch on it briefly is the issue of the benchmark date where the district court found in the order on summary judgment that there was no evidence of amendments those amendments are dealt with at the address what's concerns at least me if not if not the full court this was a harsh result for your client yes i understand that but it looks like some errors were made along the way here and they were significant to the point where the district court granted summary judgment in favor of the defendants and a lot of this is because of this new theory and summary judgment that she was entitled to prevailing wages under the category for field surveyor or labor group three a because she performed the work of utility locat ok but here and i think would point that the district court was making and did make quite clearly in the order is that this new locator theory rendered the prior disclosures and certain discovery responses incomplete and in accurate and under federal rule of civil procedure twenty six easy missive via is represented by you was required to supplement or correct responses in a timely manner once she realized that responses were incomplete or incorrect that's two hundred and sixty one day and it appears from the record that you did not attempt to supplement the responses even after the district court issued a written order identifying and explaining your noncompliance with the rule and leaving her with an opportunity to supplement her responses before summary judgment so we're faced with now what you're faced with now as a district court precluded silver from using the new theory under rule thirty seven c which provides that a party's failure to comply with rule two thousand and sixty one results in the party being precluded from using the information to supply evidence on the motion at the hearing and at trial unless the failure was substantially justified or is harmless and i guess that's the key question and that i'm just wanting to know from you how was this substantially justified what do you offer as to why your failure here to make the proper disclosures and to do the correct procedures that you were you know to follow the correct procedures here how is that not how is the district court wrong here certainly and again unlike the other cases that are cited by the district court for example the  oracle case what occurs here is during the discovery period plaintiff provided the expert opinion and supplemented her in iraq atory responses with the new classification that was due the issue is should she have have then gone on also to supplement her nd amended complaint with a rd amended complaint but she she she wasn't required i believe to supplement her initial disclosures because the defendant had the information they had the the expert opinion they had the supplemental within the discovery timeframe and they deposed timely depose the expert on the locater classification theory so that the defendants so that that was substantially justified and under the the decision of our sales what happened here was an effective dismissal of the complaint and the district court is required to consider whether the claim was noncompliance in that situation involved willfulness fault or bad face and that there's no evidence at all here of that in fact what there is evidence is that all that is that everything regarding the new classification was made promptly available to defendants after we had received their discovery within weeks after we had received their documents and even before with  dispose some of their witnesses they knew it and that's why that's why i don't believe there's ever there's any finding in here of willfulness fault or bad faith and i believe it was substantially justified because and i'm sorry your honor some might attack but but i believe it was substantially justified because as soon as we get the discovery we went out and got an expert that said this is really what this lines up to vote the lo cator theory and we promptly provided that to the defendant thank you inspector so you shouldn't be able to decide any issues regarding which determinations government might claim when defendants filed a motion for summary judgment she again after having noticed that there's a problem with this attempt to shift to a new claim  have satisfied sylvia's rule twenty six obligation because against the additional corrective information was otherwise made known to the other parties the problem with that  change in theory may have never been smoked out until after the end but it was with their deadline we have deadlines and it was within the deadline and i guess why weren't the defendants or your clients put on you know noticed sufficiently  responses and in particular at the outset of the case the defendants took the position that that missile view you're not entitled to prevailing wage on any basis whatsoever identifying or discovery responses which specific prevailing wage determination by title and number you base your claim on she responded with two building construction inspector determinations one from twenty thousand and seventy one from two thousand and twelve that response is one thousand four hundred and thirty seven dollars of the excerpt of record that was the case that that was litigated until summary judgment that's what guided all of the discovery that's what guided the depositions that's what guided the defendant's own disclosures and discovery responses to mr mccutcheon we were all district judges at one time well one of us still is and we get very frustrated sometimes when plaintiff's lawyers are hiding the ball and causing undue delay and causing extra expense and that clearly occurred here but what sanction to impose this is a very severe sanction to miss sylvia who didn't really do anything wrong her lawyer did a lot wrong and we're seeing some of that in the courtroom today very you know we're getting frustrated with mr gregory just in this short period of time here but didn't the district court have options short of actually just dismissing the case well one i'm not sure that the sanction is as dire as mr gregory explains they have a valid claim the inspector claim that they've been litigating and we'd be defending against that they could have attempted to support that they could have argued in the briefing and argued as an alternative with their expert report they chose not to do that instead pivot completely to this new theory the district court did consider alternatives they did consider perhaps some sort of a monetary sanction did consider the actions of the parties and i think the district courts also looking at its own calendar and now i've got a trial date that's going to be perhaps moved in and vacated but why couldn't an alternative then to require sylvia to pay the attorney fees caused by the by the belated new theory certainly and this would have avoided the harsh result well the question is i suppose wish to have been paying that out of pocket up front or would that be attempted to collect it be collected at the end of the case what would be the means of payment of that the court can see could have considered all of those different options it's you know again the primary one that's provided by rule thirty seven c is initially exclusion of evidence in the court has discretion to decide based on the conduct of the parties in the disclosure of this information what is the correct result and i don't think mr gregory and plaintiff sylvia have shown that the court's determination that she had not shown that this was harmless had not shown that it was substantially  justified they have not shown that the court abused its discretion in either of those ways if we look at the chronology of events you know i think it's particularly telling that again the original complaint was filed in august of two thousand and fifteen the case was litigated october they filed this their opposition shifting to the new theory sing again don't grant partial summary judgment because we're changing our claims at that point november th we put them on notice objecting that this change is not has not been disclosed is not permitted i'm january th two thousand and eighteen that's fifty eight days later we get to the hearing in the meantime there's been no motion to amend the complaint no amended discovery responses no withdrawal of any prior declarations when she issues for opinion saying these are the things that i haven't seen the defendants then moved to file their their motion final motion for summary judgment with none of those things happening not really knowing ok now that they're on notice that they violated the rules which claims are going to be be her raised in opposition so at that point we filed the motion seventy eight dollars days have gone by no changes we get to the the opposition february th that's ninety two dollars days after they've been put on notice no changes no request to demand no no amended discovery responses we get to the hearing one hundred and one dollars days after they're put on notice that the complaint still is entirely focused on the inspector claims   you know that the instead of a conscious regard for the rules i think that the chronology shows that instead this failure was a result of a lack of diligence and a disregard for the rules their response when pressed by by the court was what we did is we went out we got the expert and he determined no she didn't locate her work and that's my opinion and that's the opinion we submitted as to whether there was some reason to wait till the end to take the deposition of miss brown brown that was somebody that they had identified in their complaint as a person with the knowledge there was no reason to wait twenty two and a half years to take her deposition the chronology again makes clear that but for these early motions for summary judgment that this change in theory would have never been identified i don't want to unless you have any questions on whether the inspector claim was waived i think the statement or i have a question yes or are we still dealing with this  building inspector theory in the case i don't believe any any longer your honor at at the oral argument i will st in the record they made no effort in the briefing or the record to support  analogous to the inspector determination and the response from the sylvia was right that's correct your honor so so even if we look beyond that the record itself in the briefing of the evidence submitted by the plaintiff does not put into the record the specific prevailing wage determination that defines the scope of work and the duties of an inspector to say this is what i did this is how a reasonable jury reasonable trier of fact could find that i'd perform the duties of an inspector and indeed that analysis wasn't even done until we get to the reply briefing and this court and by that time it's too late just to say here's what i would have argued i could have argue or i should have argued in the court below but it does look like the locater there is a viable one you know again the defendants would would disagree miss brown's declaration on summary judgment stated that that my client was not hired to perform locating work that there were  there were other locators that were hired specifically under state law to perform locating work and that miss sylvia's role was to ensure that construction work did not take place in the areas where the had identified m c i s infrastructure to be to keep it safe from harm so she was not actually doing the locating if anything she would be refreshing but again that's that's a that's really not not the issue that at present it's did this new theory get raised in a timely manner and and your honor to the other part of your question earlier as to as to fairness the supreme court's decision in link versus walk actually i think is one that's that's perfectly on point that that party select their counsel they work with their counsel on strategy and how they want to proceed and they're bound to those decisions that they make and if there is relief they can also look to their counsel nobody likes to make that argument but that's the reality of it the committee notes to rule thirty seven c i think are also illustrative here of when when the court should exercise its discretion to find that some error was either substantially justified or harmless and the examples used in the committee nodes are sort of inadvertent emissions where somebody fails to identify potential witnesses that the other parties everybody knows about or a potential witness that  is listed on somebody else's disclosures or if you have a pro se litigant who is unaware of disclosure rules and they're put on notice that your evidence will be excluded unless disclosed but and  situation once they're there i notice they have to disclose well here we have someone who's represented by counsel and these this seems to me just a case management issue that they were dealing with here seems to  me and thinking here i should have thought before so i can do my own research but you probably have the case right in front of you then we have held before that we need to give a wide discretion to district judges in making their determinations on case make those decisions for case management purposes so long as they follow the rules and correct but there was never any effort to request that the court exercise its discretion in that matter such as a motion for leave to a man and or motion by the plaintiff to reopen discovery so the parties could address these new claims and motion to vacate the trial date so there was never a request by the by the plaintiffs for that exercise of discretion the other case that i think is important is yet  molly versus deckers outdoor court that's again a thirty seven c case that says that these requirements are really self executing you don't even have to make an objection for evidence to be automatically excluded and shifting the burden to the party who wants to introduce it to show that the error was substantially justified or harmless here there was never any any effort to show that the error was failure disclosed was substantially justify there was no declaration nothing else put into the record the only item in the record is the statement by plaintiff's counsel that well we didn't figure this out until after two years when we we were tainting expert and he said no we think she's this other type of position  reopen discovery the decision cited by counsel the yeti by molly decision states that evidence may be excluded under rule thirty seven dollars c one even if  weaken a party's case so long as exclusion is less then dismissal that when it's dismissal it shifts to a different standard which involves willfulness fault or bad faith and the effect of the district court's decision here was to dismiss rather than as your honor said to treat this as a case management issue much like the court did in the district court did in the volterra semiconductor corp decision judge spiro said i'm just i'm going to reopen discovery and i'm going to have discovery on this new issue and with that submit your thank you very