the district court's order needs to be reversed because my client is entitled to offer evidence supporting application of the equable tolling dr the law in this circuit in california body of laws decides the contours of whether equitable tolling should apply says that is a fact intensive inquiry that's determined based on evidence not the initial pleading stage the district court found that my client was not entitled to an equitable toting based on plotkin's initial pleading based motion there was no opportunity to amend there was no opportunity to present evidence or have our day in court we simply there was a pleading to initial pleading challenge and the court ruled as a matter of presumably  we weren't titled to show equitable tolling applied to the facts and circumstances of this case the district court in doing that and will take a look at the court's order to show why they failed to follow the proper mechanics and for lack of  a better term fail to follow the press the necessary mother made eyes that are required under california law the district court reached its conclusion without applying the mandatory three part test to determine whether equitable tolling applies as perscribe by this court in the surf on days and that david versus columbia h c a health care decisions the district court was prejudging the evidence that was not in the record my client was entitled to present evidence even even if it was ultimately unsuccessful you know it's important in this case is important to determine the contours of the equitable tolling doctrine but the court doesn't necessarily need to define  was i was going to say it has implications for that to reverse and remain and consistent with this court's directive it doesn't need to determine that the equitable tolling doctrine applies all it needs to do is re  and to allow my client to present the necessary factual evidence and that and have the court apply the three pronged fact intensive inquiry that's been prescribed by this court which it failed to do on initial pleading stage ruling on the initial dispositive motion that was filed against our our complaints our contention is that the court in doing so was prejudging evidence that wasn't in the record as my client didn't get any opportunity to submit affidavits to present evidence witness testimony conduct the necessary depositions to be able to show that the acquittal tolling doctrine applies to the facts and circumstances of this particular case equitable tolling is a fairness doctrine the deals with a couple other sub points and be be sure to answer any questions but i agree it's a fairly to sink issue if you take a look at the district court's order that was in the record stage three and four the order that dismisses the initial complaint as i said failed to follow the proper mechanics says a page three at the order that these contracts were breached and january two twentieth two thousand and nine and therefore the statute of limitations t claim expired these are conclusory statements that were reached without any analysis without any discussion of the factors that were set forth in the david in decision and didn't apply any of the factors or even state a reason why they make two factual findings in the court's order at the bottom of page three the doctrine does not apply as plaintiff has not demonstration demonstrated it should be invoked to ensure fundamental practicality and fairness nor does the plaintiff show and could pursue various remedies for its breach of contract claim and has only pursued one in good faith the court is prejudging evidence that wasn't in the record under the the court had the authority under rule twelve d to convert this to a summary judgment motion whereas under and under fifty sixty then my client would have had a ruling delayed well it had an opportunity to have its day in court present necessary evidence to show why all three of the equitable tolling doctrine can be met and my client would be allowed to proceed on the merits with its claims that had killed the first halifax decision also from this court so that those three prongs one timely notice to the defendant and filing of the first action to a lack of prejudice to the defendant and gathering evidence to defend against the second claim and three good faith and reasonable conduct by the playing by the plaintiff in bringing a second claim all those factors easily met here we undisputedly file out well within the statute of limitations period of superior court action for three hundred twenty thousand dollars for the services that my client rendered to pluck and financial only at superior court action because we had agreed to a settlement we relied on that representation from flock and financial they wanted to reach a settlement to avoid going forward and proceeding with trial they had said they provided that they get honor that set but they needed three consecutive annual installments to consummate the settlement agreement when after that period to became evident that flocke and financial wasn't going to honor the settlement we had an absolute right to proceed with our claim and the case law and the body of law from this circuit provide that that for us to do that we had good faith reasonable conduct we have had to sue twice now to enforce block and financials contractual obligation and only because that we relied on that representation that was made by flocke and financial that we did not go forward with the superior court action and take the cases all the way through trial where the district court said that he will have not been paid but they'd stipulated in the deal no money has come in no ma'am all right your honor that's correct you know taking a look at this at an absolute minimum like we should have given an opportunity to present evidence or present our case to show that it applied but just taking for argument's sake let's say that the district court was within its rights to dismiss at the initial pleading stage at the absolute minimum we should have been afforded leave to amend district court failed to give us leave men without addresses addressing the factors necessary as i pointed out in page three and four of the court's order they made two factual findings without giving us an opportunity to present evidence nor did they give us an opportunity to amend and they didn't state the reasons why that alone subjects the court's reversal the brig's first pace and ninth circuit decision says the trial court should determine whether to allow lead amend by ascertaining the presence of for fact bad faith undue delay prejudice to the opposing party and futility those aren't referenced or even considered in the district court's order at an absolute minimum opportunity to present evidence our position is that there is a very distinct difference in setting forth a viable claims for a cause of action to sustain your claim in a notice pleading we clearly did that in filing our complaint with the district court the district court conflated that with evidence that needs to be presented whether verification to affidavits to testimony other documents and there was conflated in this case we task exhibits we thought a complaint that sets up what is required to set forth the necessary claim to go forward but that's not the same thing as having the opportunity to present evidence before the court and show that the actual tolling doct applause thank you thank you case should be affirmed and i think all this talk about presenting evidence it's completely inapplicable here and we start with the primary focus of this appeal is the doctrine of equitable tolling and we start with the california supreme court case in mcdonald versus an a low value valley it's on page eighteen of our brave and this is really the linchpin of this appeal which is that the doctrine applies quote when an injured person has several legal remedies and reasonably and in good faith pursuit pursues one and that's forty five caliph fourth eighty eight it's at page one hundred it's two thousand and it's a california supreme court case i don't think there can be any dispute that that's the standard and what hitler was doing here is jumping to the next step which says we need to look at these three prongs and the problem with that analysis and the three prongs being timely and the lack of prejudice to plod can of the first action and the good faith conduct by the plaintiff but you don't even get there if you don't have two remedies that the outset and you pursue one to the exclusion of the other the most common example which we point out in our brief is where someone has to prove pursue administrative remedies before it can file for the case and so let's say that administrative remedy you know gets dragged they end up filing the case later than the statute they say wait a minute it's told during the time when they're pursuing the administrative remedies that's not this case and you cited to the arnold eight but in the arnold case  circuit case the rule doesn't apply when there has been a breach of the settlement agreement and isn't that what happened in this case well i think that's a different issue the issue here and there's a lot of conduct by who that is not being brought to the court's attention but here you had a settlement agreement you had an agreement between counsel where the parties settled and they said well plotkin financial this is super important and in the case of an equitable tolling because if you look at the timeline the timeline is crucial you have the cases filed you've got the sad contracts two thousand and six to two thousand and eight the alleged breach is on january twentieth two thousand and nine and so there can't be any dispute that they had four years to sue which is january twentieth of two thousand and thirteen that's not really a factual finding that's clear in their pleadings but this is what's important  second plotkin financial so we had that the e mails that said we'll settle for seventy five thousand three payments of twenty five secured on march second i sent an email to my colleague that said placket has the first twenty five thousand we need to know who to make the check payable to and we're still waiting for the settlement agreement this is on their in the record on we're right in the middle of the response was on one of three please make the check payable to yellow book deliver it to our attention the settlement agreement will be finalized and delivered to your attention during the first part of next week we never got a settlement agreement until september of two thousand and fourteen thirty one months later we got a settlement agreement and it was attached to the federal court complaint so it's there's no doubt it was unsigned because we never got it and we're certainly not going to send our payment when we haven't gotten a settlement agreement and this is what's important so you've got this starting with that march second two thousand and twelve cases settled the case is dismissed or the case a notice of settlement was filed what i just read was we have the first twenty five thousand who do we make it payable to and where is the settlement agreement now about six weeks later april twenty seventh two thousand and twelve there's an we don't show up they don't show up case gets dismissed ok we have a settlement we're still waiting for the settlement agreement nobody's panicking at that point but it's been six weeks june eighteenth of two thousand and twelve there's a so now we're in june of two thousand and twelve so we're over three months past my e mail that says we have the twenty five thousand where's the settlement agreement their own they're aware of what's going on they filed a notice of dismiss they've got there pretty well that's part of they brought up in their reply for the first time in the reply equitable stop which isn't in their briefs it's not in their opening brief and it wasn't presented to the district court it's completely different than equitable tolling seat equitable tolling requires the sort of equitable tolling requires the two remedies which they didn't have the equitable stoppel is somehow they said that somehow they're saying that we induced the delay but there wasn't any delay that was induced by plaque and financial but if you just very quickly one more one more minute is if if we get to we have that  and twelve correspondence that i referenced i think it was with mr scherer or his colleague the next thing i hear from them is april of two thousand and thirteen so they let thirteen months go by and that's in the record at  believe it's one forty six where it is it's exhibit b to the federal court complaint who won forty six one forty seven is thirteen months later i get a letter basically says as you're aware we have a settlement for seventy five thousand the correspondence is enough i'm paraphrasing you know to have this in forced no mention about a settlement agreement like we sent you that settlement agreement what happened to it and if even if they did if we didn't sign it i don't know why they're sitting around for thirteen months but what's important is that in the interim in august of two thousand and twelve the principle of  financial dory platen a quadriplegic who had been a quadriplegic for fourteen years he died he died in august of two thousand and twelve so we were february to augustine were seven months after the settlement we never got a settlement agreement our guy die  and i believe i had a conversation with mr share that said you know this company you know that the principal has died it's really essentially not operating but that was really the extent of it and then we've got six then you have a seventeen month delay between april of two thousand and thirteen in september of two thousand and fourteen and there's no doubt that they didn't lose the right to enforce the settlement if we didn't make the first installment sure we know one said there was a statute of limitations defense against the settlement we stipulated to judgment for seventy five what our complaint here is is you don't get to go back to the underlying contracts i think your honor that was your point is the settlement has been breached but arguably it hasn't been breached when they never gave us a settlement agreement we had an agreement they're really in breach for not providing the agreement but in the interim the principal dies and here we are what they would be if they wanted to go back they certainly could have enforced the settlement in the l a action that happens all the time under sixty four point six that you have a settlement you can you can enforce it summary what do you get you get your judgment for the settlement amount but they also had six months and this is footnote two in our brief they had six months to vacate that dismissal which is october of and twelve so between the date of the settlement or let's just use the march his my saying we got the twenty five thousand ready he still had night april may june july august from seven more months to just go back into the l a case and say you know what we want to just want to vacate the dismissal we want to go back to the three hundred twenty thousand dollar claim that was one of their options they didn't do it and even when they didn't do that so in october of two thousand and twelve they could no longer reopen the l a action and that's very direct jurisdictional it's like if you missed it a notice of appeal you file a thirty one days and it's gone there's no excuses so they couldn't get back into l a but this is a distinguishing factor from all the cases that deal with equitable tolling not to mention that concurrent claims in pursuing one is in all the cases that i reviewed there is never a case where at the time the first case was dismissed that the that the statue limitation wasn't already expired and you look at cases where that filed like a week later or two weeks later there's a couple of cases i could get if you want examples but here the case was dismissed in april of two thousand and twelve they filed their their s so many safeguards that aren't present in any of the cases that they say that they cite were equitable tolling i mean their first problem is they don't have concurrent remedies at the outset where they pursue one to the exclusion of the other the second one is when this case was dismissed they still had nine or ten months to sit to bring this very case and they didn't and so when you get into the equitable part of it you know it's it's not a not quibble to to rule on the statute but i don't see to address a couple of points that mr sharon made i think it's clear under the cases and it's in our brief pages eighteen to twenty one you don't get to the three prong analysis unless you have multiple remedies that's number one number two they keep saying that the judge didn't accept their factual allegations is true but they don't point to any where the court said this isn't true or that they weighed anything or that i don't see the court doing any of that stuff there's no doubt the court didn't look at the three prongs it didn't look at the print three prongs because under the case law and under mcdonald if you don't have multiple ramadan use and it's you look at my cases that we cite between pages eighteen and twenty one and they're factually distinguishable but neither of us has a case that's directly on point but the rule of law is very very solid as your honor mentioned at the outset we're not here to debate what the contours of the equitable doc telling doctrine if you need those two remedies that wants and you have to pursue one and when you do that then we look at notice to the defendant because of the first case we look at prejudice to the defendant because of the first case and we look at the good faith action of of the plaintiff here we don't have to look at that and i'm not going to i don't want to create a travel issue or fact by saying they didn't act in good faith the facts are what they are the facts are really undisputed here and the judgments from everything i can see except it all of their don't try to say they acted in good faith or that there was anything like that that's something they came up with in opposition to the motion for judgment on the pleadings so i think we've addressed all the issues in the papers and i think the district court they should we didn't make that argument i'm not saying that but my point here is that are you telling because these the because one of the disputes we have is our statement of issues is different than theirs and it's because they don't acknowledge that you have to have the two remedies and they falsely claim that they pled that and they didn't so it's not just a court wasn't that the importance of it your honor is that the district court wasn't ignoring their allegations or weighing them or prejudging the facts because they weren't alleged equitable it was before the the three factors if you don't have several legal remedies at the outset and that's the key here and that basically they didn't that's our basic argument in if the court disagrees with does that mean there's no doubt that those three factors are fact in but i don't see any case that says you don't have to have several legal remedies at the outset you just it's over and over every case sites at the same way and that's what the district court relied on the basic  court but those aren't concurrent remedies that you can file at the same time they just chose state court proceeded to settlement settlement fell apart as we discussed and they still had seven eight nine ten months to bring this case but for some reason they waited thirty one month that there's just no basis for equitable tolling and doesn't matter what they want to plead it there's no evidence that they could could support the doctrine thank filed in superior court which it did it could have followed in district court there are multiple alternate turns of dispute resolution tribunals that should have brought as it could a prize claim in but it brought its claim in superior court well within the statute of limitations period the action was dismissed just based on a representation that they were going to honor a settlement right before trial and the law's pretty clear that the statute of limitations does not protect the defendant who cause a delay lengthen decision supports that now there are a multitude of facts or reasons to address mr clarus reasons for the delay the settlement was secured by an income burden realty that was wasn't presented an initial complaint filed in district court but the district court does set forth the complaint does set forth all the factors showing that we filed initially well within the statute of limitation and that we would have gone he relied on it should only take about a minute and then i'll be done we had we had invited flock in financial to point the court to any authority supporting the idea that high  the record the authority that plopping relied on in their briefing completely and opposite manifestly and different than the facts and circumstances of this case as you had referenced your honor they cite cases like the adelstein a bankruptcy case in arizona that dealt with the fully satisfied agreements the i r s tried to go back and seek relief opposed petition and penalties and interest after the parties that are to consummated a settlement agreements that certainly wasn't the case here  initial pleading stage your honor we're just asking for the opportunity to present facts to support our case and ask that the district court's order be reversed and remanded and a simple denial leap to a man without