abuses discretion and accepting as judicially as a judicially notice fact that jumps conditional use permit application was filed on june nineteenth two thousand and twelve well let's assume that's true but it was it date was june nineteenth third applied the economic loss doctrine in any event to dismiss the negligence and negligent misrepresentation claim and perhaps most importantly denied jump san diego the ability to amend its complaint even once to clarify what the court's concerns were ok so let's go back to the filing date if we could and focus on the statute of limitations place we circle back to judge persons question because i have the same question what difference did it make when it was filed quite the question as when she was on notice of its cause of action right yes your honor that's right setting aside damages for a minute as of the date they filled out that application didn't jump have notice of all the other elements of the made a mistake they knew by that point ok then at that point your argument is that jump wasn't on notice that it was going to actually accrue damages i think because the eighty six hundred dollars check was potentially refundable yes that's not just the refund ability but importantly jump had leased a warehouse that was it was converting into an indoor trampoline facility in the context of doing not jump was going to have to pull building permits so jump was going to have to incur money in order to operate its business irrespective of whether ms kruger had been negligent in providing the zoning advice right in the court it would be just a court at one point talked about the lease payments deposit towards the governmental process and the permit ing right it was eight thousand something there could be payments associated with applying applying for just a construction and improvement permits even if the city did not come back and say you have to build a miniature golf course or you have to build sidewalks there were several things that were in the fall two thousand and twelve cycles report well wait a minute the application concluded the m does however there were improvements that they were planning on doing in connection with this facility right so they weren't new news right but but but the but it seems to me that the lease payments fall into that category and that you're arguing and perhaps correctly so that the district court may have assumed that the legal fees in the consultant fees that were unanticipated had already been incurred as of the date the conditional use permit application was filed and in fact we can't i can't tell whether those are really in when they were incurred whether they were incurred as of the date the application was filed or not but the very next day your client filed or had had to pay this eight thousand dollar fee right and your argument is that it was refundable but i don't see you know where you tell us it was refunded is that right that's my first question well i think if you look at the documents  that were judicially notice i think the district court threw an inference against jumps and diego which the district courts not require is not allowed to do i think i just gave you that i just i just agree with you there so that was a mistake i don't think you can say that very fees associated with applying for a construction permit it's a hearing are you saying council that the eight thousand six hundred eighteen dollars paid on june twenty was not directly related to the conditional use permit but in opposition no in the opposition we were more general what we said was that the i could read from the opposition brief itself here is that we said further obtaining can be a lengthy and complex administrative process determining when plaintiff suffered appreciable harm during that process and when plaintiff realized it had suffered appreciable harm cannot be determined simply by determining when plaintiff made a deposit in furtherance of obtaining the c u p we would have amplified on that if we had been given an opportunity to orally argue knowing or to inclination to deny us even an opportunity to amend  brief while we certainly were concerned that they were raising the statute of limitations and provided the rationale for why we felt that the motion should be denied we were requesting an opportunity to look tremendous she thinks i'm him it's going to be futile and under the district court's rationale she's looking at the the conditional use permit application and i think she concluded that all of the elements were there as of june nineteenth except damages or at  least at least you've convinced me that there may have been some assumptions on the district court's part about other damages she looked to that were that were perhaps unfounded by the from what was available at the twelfth the six level bought the very next day there was this eighty six hundred dollars check and so it seems to me that i'm looking for your answer about why amendment wasn't going to be futile well amendment would not be futile because we'd be able to explain that the application the deposits all of those may have been required in some form in connection with applying for a construction and building permit that would have been required in any event even if the business or the building had been why that's why my point isn't that we had knowledge of the negligent advice my point is we didn't have knowledge that they had been damaged jump had been damaged by the negligent advice ok so this i know you want to say five minutes i have your opposition to the motion to dismiss here can you just call me my attention to which pages you want me to read that will convince me that you called the district court's attention to the fact that the eighty six hundred dollars check may have been anticipated not an unanticipated expense where did i say that the section starts on page five subsection c and continues on to page six all right as i said it's not as detailed as i would have liked sitting here today but it certainly was enough to show the district court that we believe the c p process with the lengthy and complex and it's not clear what your whether you'll be damaged from having to apply for until you get feedback from the city of san diego as to what's going to be required now that it's not properly zoned for the use you intend thank you counsel good morning may please the court all over dreger on behalf of the tenants and respondents i'm just going to go directly to the this issue that soak up most of my colleagues time which is the damages question and i'd like to direct the panel's tension to the issue that the damages don't have to be complete here in order for that are cool to have begun and what we have here is the district court correctly found that pursuant to the allegations the a verminous in the complaint that the damages had accrued because when we look to the allegations the a verminous here specifically i direct the court's attention to page one sixty eight in the record which goes through a little bit of a different set of vermins than what we're hearing this morning from my colleague and in that the issue isn't ultimately what happened as a result of the cycle's review in this process the issue alternately is it was a verdict that plaintiff was damaged by the fact that they had to engage in this process in the first place they cite to the fact that they brought on attorneys that they brought in consultants to engage in a permit process that they were led to believe never needed to have occurred can't tell where where does it tell me that they had to engage those folks prior to filing the conditional use permit application the as opposed to in response to what they got back after they filed their application well i direct the court's attention to paragraph sixteen of the complaint which which conditional use permit and then in the next paragraph there is a series of damages here and the question is what it when did the act of damage occurred regardless of what we know what we know and i'm looking for the earliest date it seems to me the earliest date date is june twentieth  what if you got that earlier well i would i would state that when they became aware that the the statements were purportedly false on june nineteenth well that just means the crew may have made a mistake it doesn't mean it was going to cost dump money well doesn't it doesn't when they allege specifically that they would not have even entered the lease if it wasn't for reliance on these purportedly false statements so the entry of the lease as a quantum of damage associated with your honor i think you have a serious proximate cause problem if you're really going to rely on the lease payment complaints of personal happiness and won't be able to do it usefully and that will be the end of the case well they shouldn't be able to because the principle was followed correctly in that we were entitled to get judicial notice of the documents that was c anything else well we do know that the conditional use permit went to the heart of the business they were suddenly having to apply for using we don't think i know that because the what they apply for was a trampoline with eleven thousand feet  for use as a trampoline business with with an outdoor mini miniature golf right which they also are they also a verb that they were forced to forced was the word that we used in the pleadings to do that as a result of this process were going to go ahead anyway because they still wanted to build this facility so the court took judicial notice there was no opportunity to essentially argue whether there's been for additional information in connection with leave to amend what on the face of the documents that we have before us shows us that the eight thousand six hundred some odd dollars wouldn't have otherwise been incurred that's how i understand counsel's argument is that in the normal course of things they would have had to pay anyway through the normal permitting process even if the advice had not been negligent so is there anything that tells us well you paid eight thousand dollars that you otherwise wouldn't have incurred and so they are for you on notice with regard to damages as well as far as the exact dollar figure of how that is weighed out that is not that it's not about the exact dollar figure it's not about the exact all your figure it's about on anticipated damages the lease payments were anticipated they're going to have to pay those right that's what judge winds getting at is there anything in the record that tells us that the eighty six hundred dollars check the june twentieth check is is something that was on anticipated well i would i would take a an exception to the statement made because how can they of are your honor that they would not have executed the lease council if you could just set that aside i realize that you're wanting to hang on to that but just for the purpose of this hypothetical question  some you've lost that point ok and that i'm of the view that they were going to that's not a damage just just pretend yes you're ok and then if you could if you could just focus on that next check that the june twentieth check well we'll hold isn't that a damage for him because if nothing else even if it was ultimately refunded and i don't know what was or not isn't there and there's a time value for the use of that money but only if that that payment was an unanticipated expense that they didn't think they were going to run into well we do know that there is nothing in the record that lays out precisely persuasively that but what we do have in the record is we have a conditional use permit we have the reason for the permit which would not have been required but for the the purported statements and then we have a dollar doesn't necessarily flow in that exact sequence what's wrong with giving them an opportunity to amend to demonstrate that this is fees that they would have incurred anyway even in the absence of bad advice because it's clear from the record your honor it's clear from the record that there was some quantum whether it was the delay whether it was the issue that i've been asked to to put aside for the moment i mean we did delay opening just the delayed opening yes that's clearly averred as well  helps me because then there's some loss profit apparently but that only to help me if we can tell from the record the date on which they and dissipated they would open and i can't find that in the record but if they will if they have heard that there is a delay then that is a fact of damage again i don't know  the question is by when did they know it by when did they know it's the a cruel date that we're trying to figure out and and it it seems like we're all on the same page in terms of looking at the allegations the complaint looking at all the records the  notice of and focusing on the date of june twentieth as the cruel date in terms of the damages as a component of their cause of action for it your honor and i think when you line up these these issues we've crossed the threshold clearly in the district court crossed the threshold of finding correctly that there was a fact of damage that was aware whether the whether that quantum was large or small or whether there was a large delay or a small delay clearly they a response that they set that be the check wasn't necessarily money that they wouldn't otherwise expend and that's why they want to notice so i haven't really got your answers to why they should have that opportunity to amend to allege that well well that's something that that argument that well we would have had to spend it anyway it is something that we've seen for the first time here on appealing lips me that what they are and you can kind of get their bite because i think the complaint does say we  we were told by kroger that we were going to have to get a couldn't use permit at all and then on june nineteenth it turns out we had to apply for just a conditional use permit and whether it was ultimately refundable or not in conjunction with that permit application we had a six hundred dollars so you can sort of backdoor it i think and decide that that but record put puts us on notice that they're alleging that they weren't going to otherwise have to write that check on june twentieth that's correct right on the check it's clearly tied with the same control didn't in fact file on june nineteenth or at least there's no evidence that they did so at least theoretically they could have prepared to file and then decided they didn't need to file so they the check becomes key because the the application nineteenth we don't have we don't rely on the fact of whether it was mailed out a particular date and ok so therefore the check becomes all important but well it does if we don't accept that these other  damages are have any validity if they don't which i frankly i've tried to make the case forward and if they don't though then the check of obviously becomes very important because that becomes the lynchpin regarding the fact of damage that we would need to show in order to show that the court didn't make and again that this standard her view here would be clear error below honor that citation would be three sixty four federal three d eleven twenty seven that particular pages eleven thirty your honor it's a two thousand and four case of this dismiss well it's a it's a case that shows the standard regarding interpretation reviewing when a case is dismissed on the issue of  honour's i know my time is brief so i'll be quick here this is giving you two minutes notice for planning purposes this is a dyno vo review the only issue that's abuse of discretion is the judicially noticed facts and that was an abuse that discretion was abused the court determined that june one thousand nine hundred eight for a cruel that she base that on when the application was filed it was not filed on june nineteenth that was an incorrect inference that was taken the conditional use permit what we would allege is that the monies that were expended towards the conditional use permit would have been incurred irrespective of the need to get a conditional use permit because you had to get a building permit through the city in order to convert the warehouse into a gym indoor track yes that's a different argument than what i understand we're talking about earlier it's not that it's it's not that you anticipated a conditional use permit you just your argument is that your client wasn't out of pocket more money than it thought it was going to be as of june twenty that's pot that's what we would allege if we were given well you were given opportunity to amend the complaint and i and i i'm sorry to oppose the motion and i have read for your invitation read pages five and six of your opposition and it says whether submitting an application for a cup and payment of refundable deposit would constitute appreciable harm to a reasonable person for purposes of commencing the statute is a question for the  and then it says a reasonable plaintiff may not suffer appreciable harm upon payment of a deposit where the entire case or majority of that deposit may be refunded at a time in the future so that it seems to me that the argument you're making today is different than what you argued in front of the district court and i want to give you a chance to respond i would i would continue or honor that it's not different it's just an amplification on what we put in the brief while we discussed refund ability as the verb we used but if you in other words if you are going to need a building permit then you're still going need a building permit and you still have to pay for the building and into the dishes from it that's that's incorrect your honor if you are doing a conditional use permit that is the my understanding is that's the permit that governs the project and instead of president doesn't instead of and not in addition to the building permit so again i thought there goes to the fact i think that goes to a fact inference which the district court drew against my client  i think it's very clear that all inferences on a motion to dismiss must be drawn in favor of the plaintiff all allegations must be look favorably towards the plaintiff and what has happened here is a de facto application of a rule fifty six or a summary judgment motion where the parties are arguing fact inferences to be drawn from an eighty six hundred dollars check to his application without the plaintiff being given the opportunity to submit competing evidence to show why they did not have knowledge that they were damaged from the negligent advice intel after june twenty fifth two thousand and twelve and basis i'd submit thank you thank you both for your argument next case on the calendar is fourteen dash five six six six three