court held that these various informal things that were sent were a notice and therefore dismissed and all that's obviously inconsistent with the statute because there was a notice because a complaint was filed so that's not what most of us were referring to now well the look at record pages sixty eight talks about a variety of informal things that were said what are you saying was a fact of notice the complaint in this case under section sixty ninety one be anything prior to that the briefs talk a lot about whether these informal things are a es and those may or may not be but whether or not those can is no sir not with all the complaints you cannot possibly affirm a dismissal for lack of being a notice because under the state statute the complaint itself is a notice so it has to be a timely notice right that brings my second point so the first point is you can't say there was no notice because it says in section sixty nine hundred three when relief based upon rescission is claiming an extra proceeding such relief shall not be denied because of first point is the opinion that's before the court says you did not give notice therefore the case is dismissed that's clearly wrong to dismiss the case you have to find that it's been substantially prejudicial within the meaning of section sixty ninety three and that's not what the conclude that there had been prejudice absolutely not but that is the key point the second point is that i'm trying to make is you have to look at section sixty nine hundred three what you have to remember is the case here was ruled on a motion to dismiss because let him ask his question and you can answer for me sir the district court look at the complaint and it concluded if you look carefully pages fifteen sixteen the record that it was reasonable to infer that the defendant was prejudiced but if it's reasonable to is prejudiced that's not the right standard on a motion to dismiss where there interposing an affirmative defense this is not a securities class actual we have to prove up in the complaint all of the facts necessary to show we when they have interposed a fact intensive affirmative defense of substantial prejudice the complaint has to establish that if we had a complete discovery record had a trial that there is no chance that we could lose let me just put propose the following hypothetical pose a question for you i was a hypothetical these lawsuits all the time we think they're totally frivolous if we waited to spend money and make movies until we could get rid of every single lawsuit against us we would never make any movies we didn't slow down our production because this lawsuit was there we didn't spe lawsuit was gone this lawsuit had no effect whatsoever on us because those people are crazy so let's suppose that's in the record and we just you judge found as a fact based on that that walt disney was not in its expletive this copyright affected in any way whatsoever by the when matthew found out and the time when matthew gave notice so it worst when i thought the lawsuit the time between when matthew found out and when matthew for the lawsuit cost substantial prejudice and i'm willing to believe that they could prove that it's possible you could have a trial and they could prove that but they haven't had a tr prove that they didn't have discovery in proof that the district judge has read the complaint so i think it's reasonable to infer that they were prejudiced and it may be reasonable to infer that you don't grant a motion to dismiss because it's reasonable to infer that the defendant could win a trial you not think cannot think of any set of facts that you could prove in support of the points you might have a ashcroft type versus ashcroft situation where well you know at least in theory you know martians could have come and done this but we're not willing to say whether selling this case here if the question is is disney prejudiced but by waiting essentially for years you don't think it just requires a matter of law can say a four year delay in finalist did not in some way substantially prejudice disney i did not i think i think it's i think it is perfectly reasonable for the district court to infer that disney spent a ton of money during any year of this period the question is whether the district court can infer that the they are to give notice substantially affected what they were doing i think it's just as reasonable to infer that nothing about the pinsky of this complaint the disposition of this complaint the pennsy the second complaint second first complaint so none of this affect what they were doing the people make movies make movies the people do lawsuits to lawsuits i think it's perfectly reasonable to expect that a pun of um a factual record you could convince a fact finder and we could introduce expert reports and their own testimony that would show that they didn't change their behavior at all you'll observe that during the period of the first lawsuit they were exploiting this producing movies video games t shirts coffee cups the first lawsuit didn't stop because of the lawsuit and not produce movies and instruct using reason settled but i don't think the standard complete prejudice the standard is substantial prejudice i mean the question is what is substantial prejudice and all i'm trying to emphasize for the court is its affirmative defense this is not something we have to prove it's something they have to show from our complain alone i please the court my name is sandy lane fact i'm representing the defendants let me just jump in where counsel left off because i think he's misunderstood he's put aside and that's fine the question of when notice was given he seems to concede it was given with the filing of the complaint in may of two thousand and thirteen no question that's four years after the alleged discovery of the fraud ok then the question is is this substantial prejudice first of all i accept the fact that yes you look typically to the party who is allegedly prejudiced to show that there was prejudice but in this case  this case disney invested substantial sums went ahead and made a fourth movie which they did worked on a fifth movie which is about to be released licensed the film didn't merchandising put it on d v d and did what  the really relevant here they establish a movie franchise this isn't a one off like they're still a piece missing if you look at our dan jack case yes we say a defendant may also demonstrate prejudice by showing it took actions or suffered consequences that it would not have at the plaintiff brought suit promptly and i think that's the challenge being put by professor man which is that there has been nothing there's nothing in the complaint and nothing in the record that demonstrates that disney wouldn't have done the same thing anyway well i with all due respect your honor i would say to you common sense remember stop common sense where is common sense in the record i mean we're talking about a motion to dismiss we are talking about a motion to dismiss but we're talking about fo years and billions of dollars according to the complaint which the defendant put in during that time and remember it will say as a matter of law that disney would have drawn to a halt not proceeded with his very profitable franchise because of what they thought was if not in that case then it's just for any unusual complaint no you cannot say that as a matter of law then does not give us a problem no it doesn't give you a problem either the reason you don't have to say that as a matter of law is because in this case which is what we're talking about here you're talking about unlike most of the other cases you've seen a settlement a resolution of the case so what could this new have done it could have brought a declaratory judgment action that's pretty simple if you really knew that someone was challenging the release you bring of the current or judgment action and get it done you don't have to show i would have stock i would have taken steps that is what you show this  considered that and i don't see anything in his order that says this is what it is and he would have done he seemed to stop at the point that isn't he spent lots of money he certainly did not articulate as you correctly note the point i am making but you certainly can if cries out for it it's on the face of the complaint you know here this is unusual in that someone signs a settlement waits and minimum of four years i have suggest to you if you look at the record it's seven years from the time he signed it because remember he's been claiming fraud from the day he signed this going to put that aside because judge klausner decided not to reach that point wrongly in my opinion and this court can reach it because it's right there cries yes but for sixty ninety three in other words both sixty nine you want to sixty ninety three are a bit unusual in that they codified what was basically a common law standard and so they provide a basis for twelve b six or twelve b c twelve c motion which this was so yes in many cases it would be but not here i do commend to you though and i do want to just move slightly off this if there said he's barred by the statute of limitations and he didn't rely on any alleged fraud in the first place just laughed and said well i'm not going to get to that because to do that i have to go to his website and i'm not prepared to say that's central to the complaint and i respectfully submit yes clausen was wrong in that it doesn't have to be central to the complaint he incorporated it by reference he said it is quote made a part here of it's just as though he had written it right there and if you wrote it right there and you read it right in the complaint and you can because that's what he said he lays out the alleged fraud the thing he supposedly discovered in two thousand  starting back in two thousand and six two thousand and seven two thousand and eight he wrote letters to you name it the board of directors johnny depp counsel bar associations law firms claiming that there was this alleged fraud and finally when he wrote a letter in june of two thousand and nine saying aha i just saw this new book what did he say he said this confirms the fraud that i have been talking about that maybe there was no fraud the put that aside it was what maybe is he found it he believed from the beginning because and this is central to this and i'm going to wrap up but this is central to this he believes or says he believes and he may he may but he was the guy behind the whole idea of the whole thing for pirates of the caribbean and when he saw the surreal book in two thousand  that credit mark davis and other people he concluded it was a lie it was a fraud and it was concoction he said that then he said it throughout when he read in two thousand and nine a new book all it did was confirm to him that he was right way back then but then he had to sue if he was right he should have sued in the interim it was barred and by the way the one thing that is equally clear is he could not have relied on any alleged claim fraud i'm going to end up your honour's with one point as you know he has filed at least five lawsuits in three different courts over twelve years against these defendants despite the fact that we had a release by the way unusual released we released him to at the same time it was mutual and he had counsel he has filed at least five different complaints in three different courts over twelve years we said in our brief i'm going to say it now and nothing is enough it's time to end this this court sho the case that you mentioned doesn't appear to me to discuss the substantial pressure center sixty ninety three i wasn't i'm not familiar that previously but it seems to me to suggest that the turn on the question of whether that person has a duty to investigate under section sixty ninety one to find out statutes which is to make it super hard for laci to apply that our complaint does not on its face establish that they were substantially prejudiced thank you very much counsel on this matter submitted thank you for your argument