up to tell me this yes your honor i'm happier as i represent the intervenors we have amongst ourselves mr late on the four and would like two minutes mr vandeleur in the middle would like two minutes and i would take the remaining eleven minutes i knowledge that this is not the usual case my partner and i have a side business where we invest and we develop in brownfield sites we never intended to represent daniel reuben we approached him and his counsel regarding the property and when we discovered later that the goldberg vs arns case existed it was on the inactive docket we asked about it in for mr rubin and he asked us to pursue it and so we did we attempted to revive that case but the district court dismissed it for lack of prosecution the judge was concerned that there was too much and there's conflict discussions of probably take place  uncertainty discovery was lost she feared that the parties to that first action the arns action would not know that it had become active again so the case was dismissed without prejudice and we took th from the judge to start a new case and give the parties the benefit of service of a new summons and complaint and while we follow the judge's cue it's important to note that none of the issues presented here today  appeal would had been issues if the arms action was allowed to continue as it should have been we carefully drafted the new complaint made sure we followed all the elements of a credible tolling and continuing harm we tracked those tests we played those tests and naturally we were surprised when the same soon after dismissed many of those causes of actions on the grounds of statue limitations  effectively turned her first judgement without prejudice to a judgment with prejudice because we could not have possibly known that this would happen it effectively was tantamount to a dismissal with prejudice which is improper for a dismissal for lack of prosecution in any event lachie is not a defense in environmental cases cases because the code makes it quite clear that no lapse of time can legalize a public nuisance regret is based in nuisance and we have been able unable to find any case where a court has should this court should not be the first given the roots a nuisance it makes perfect sense that recruits should follow the same rules as public nuisance watches should not be a just mentioning under the doctrine of latches is there any california law to support your assertion that the defense latches cannot be applied to  figure out authority wise what you're relying on sure as i mentioned your honor the matters are overlapping with nuisance and the federal laws are driven  nuisance but the idea is to push to protect the public and the statute in california it's could have civil procedure section thirty four ninety i believe it cited in our br expressly says that no lapse of time can pass to legalize a public nuisance and the reason is really clear with the idea is we can't just let time go by and let the public suffer on the pled in environmental cases like this one because the damage is continuing to move and spread in the environment in fact it is constant and and the moving as we speak offsite furthering the dangers to public health and the environment and the law in california as a three year statute that would otherwise be applicable for damage to real property complaint that demonstrate the reasonable notice of the plaintiff's delay in prosecuting arms action well the first few paragraphs on the complaint and those are quoted in our opening brief speak to the fact that this was you know the parties work on this that we were led to believe that the gossip and related entities were working on an interim remedial action plan that they were communicating with the d t s e l goldberg died within a few months of the filing of the original action betty goldberg developed you know frankly became old went into a home and and developed alzheimer's like symptoms and so i think the idea of it was just sort of lost the grandson dinner even knew nothing about the previous lawsuit and in fact it wasn't until we were in the due diligence phase of a real estate transaction until he had heard about it if my memory when did your property the it when lawsuit everything's going to be told that the parties will get the benefit of service which is make sure that everything's clean this time discovery had been lost who knows who has what documents and ultimately if they get the case developed we don't have a federal authority on right you are correct your honor in that on the sort of claim my understanding is that the limitations provision under circl explicit that the time would run from the completion of the cleanup that is correct correct in my right that no cleanup has been completed on this matter that is correct under certainly your honor their only can be one removal action that is not a case of person passion in fact the cases are uniform and as well settled that there can only be one removal action and here it is under speeded that that removal action is not complete ok so so those are the federal statutes on the state law claims  is the authority clear in california that just should not apply to nuisance and trespass or other issues that should be certified to the california supreme court your honor no i do not believe that there is a certification would be necessary trespass cases tend to follow nuisance cases and the law of public nuisance is quite clear that there is no lapse of time that is permissible no matter how long you wait we need to address this public public uses so long as the public nuisance continues to exist now hypothetically let's say that the public news is no longer existed and it is undisputed that it does but let's say that time passes then maybe then there would be a position where you had sat on your rights chemical supply company that supplied dry cleaners is the same solvent there have been excavations and testing performed on the property there are monitoring wells on the property there are monitoring district of california and this is there are only two phases of cleanup the removal phase in the remedial phase with the marketing line between the two being the adoption of the final remedial action plan and there are also is the also the neville case which is probably what does go is referring to and that's the one that says in till that removal action is completed yet this is a an issue that was confusing to the district court i believe and it's a misnomer that the assets that are placed into the trust are not assets of the estate goldberg put into her trust is betty goldberg's money and when she received that money from a gift from income from the property from anywhere else and she spent that or put it in her trust and then spent it is no different than me having a deposit into my trust account from my employment and then writing a check to pay for the mortgage the groceries the car payment it's my money i can do whatever i want  goldberg's money she could do whatever she won with it whether it came from the trust her purse under her mattress it didn't matter where it came from it was betty goldberg's money the only difference was once she was deceased we call it the estate of betty goldberg that's the central difference of the trust come to the estate i wasn't involved when there was a state planning nor am i an estate planning lawyer but it's clear to me that a trust is not a separate legal entity and the plaintiff in this case is daniel rubin as the successor in interest and the personal representative of his grandparents the go and the money that he testified that he used to in the money that we submitted as evidence of response costs were from checks drawn from a the betty goldberg trust but the funds in there were from the funds from rent from the property that was held by betty goldberg why wasn't the trust joined as a party i don't believe that anyone knew that this would become an issue when we followed the lead as i said filing in the new action from the arms action we were very careful to make it as close to the same complaint as possible in the same order of the cause of action and only add our new cause of action that we sought to amend in the arns case and so we were very careful to leave things as the same as floor my name is matt dearest i represent a group of insurance carriers who intervened on behalf of their insured a suspended corporation and the estates of two individuals mr shaq and mr foreman so mention to the court my colleagues vandeleur would like to occupy the last four minutes all trying to be as brief as possible but to finish up or to begin where the court was finishing up on the issue of cost it is critical under circle analysis to determine who incurs the costs the surplus statute indicates that any person who has incurred response possibly would cover them if you follow through with a lawsuit and if you doubt all the i's and everything like that but it's driven by who incurred the costs and it's apparent that the trust was created as a vehicle to avoid probate how do we know this we know this because the probate documents that were filed in connection with getting the with mr reuben obtaining permission to read his family of the property they had to list what the assets were and i don't apologize i don't have a cite to the excerpts of the record but the papers are in the excerpts of the record and it lists no there is no trust account that is listed there to indicate assets that are otherwise at the disposal of the now deceased mrs goldberg whether originally kept under her bed in her purse or elsewhere the trust is a separate entity and always has been and they knew that it was a separate entity when it came time to conclude the conveyance of the real property and what they knew because they had to readjust their purchasing agreement per probably purchase and sale agreement with mr reuben so it accurately reflected who conveyed the property council were so were were there are costs remediation costs incurred by somebody in connection with this site by somebody at any point in time your honor i think it's fair to say that more recently that there probably have been response costs incurred ok do you know the approximately the amount that has been spent recently no i do not know that you're and by whom and by whom i believe that the two twenty l l c has if it hasn't paid has at least done work at the site that's mr stone's l l c so did the the estate of the goldbergs or the  it that's an interesting question with respect to the estates of the goldbergs there's no admissible evidence of them having paid any response costs in the one nine hundred ninety s when they were alive with respect to the trust and this is where the plaintiffs were caught in presenting false evidence to the district court they presented evidence on behalf of the estates that they had paid response costs when in fact it was the trust who had paid best best in krieger and the trust who had written checks to it and i think it's an environmental consultant whose name escapes me currently so those funds went from the trust account to those folks but the trust is not a plaintiff here the trust has never been a plaintiff here and in all the transactions they have striven to keep the trust and betty goldberg separate they did it when they have the real estate purchase agreement they did it in connection with the probate filings and correcting the title to the property they are and should treated separately and more importantly the trust didn't sue and equally importantly when we talk about leave to amend it was never requested they requested leave to amend previously which was rejected we think correctly but even associated is that mr stone sought to revive that the court issued a no is he ready dismissal in response to which mr stern raised a number of arguments including pointing out the dangers of loss testimony as a result of the passage of time at the hearing on that and i arguing that there were two removal actions and in this case you know for purposes of recovering costs and or circle of trying to figure out how the two thousand and twelve actions are separate distinct in any way from the think it begins with a premise that i need to correct i judge gould asked whether the statute of limitations begins to run on a circle claim on completion of the cleanup and it's an inaccurate way to state it there are two types of circle  e circle of cost everything before you have remedial action is removal that's correct and typically the remedial action begins on approval of the wrap to answer your question directly your honor about the distinction between removal options and whether there is only one removal action i would agree there is a presumption that all actions that are taken are part of one removal action but that presumption does not create does not establish a prohibition of finding two removal actions and i think that if the court were to take a look at the d t s see vs novel case or if you take a look at the pacific case and alcoa pacific maybe better there was the d t s in that case and gauged in an eight year preliminary cleanup but it had three distinct events and again everything was being done in a coordinated phased logical supervised manner the d t s see first remove drums then remove radioactive waste and then remove structures and also in that case the plaintiff was a state agency with your consent decree in that case i don't remember that detail your honor but the d t s he was doing the work and the challenge the challenge was whether or not each of those three phases should be split up and we would agree that each of those three phases should not be split up into three separate removal actions but no case none cited by appellants one sided by us says that you are prohibited from finding t actions there's no case that says that you should link a period of seventeen years of inactivity where there is no work it's being done there's no regulatory oversight nothing is being done in phases and indeed this is the very danger that was raised i believe before the sixth circuit in the cali vs dupont matter where there was the clear shearer that was raised of somebody attempting to raise a long dead claim simply by initiating another removal action indeed the act of the actions  the elements of latches have been have been met that that application of lakshya us under federal law is discretionary and and the doctrine is supposed to be used at least in my understanding sparingly environmental case i agree that as a general premise latches is to be used sparingly in environmental cases but it requires understanding what we're talking about in those circumstances most typically the cases that are are raised follow underneath and it's a challenge by a citizen group to whether or not some branch of the government has actually done what it's supposed to do any valuating approval of a government project before it happens to properly assess all of the environmental impacts and in those cases where the government is acting in approving something in the action is being taken to protect everybody's rights lapses is applied sparingly but in the context is this where we're talking about a private party indeed a private party who's not even doing work who is not under anybody's supervision at this point in time who then decides ok i'm going to sue again seventeen years later latches the elements of life is certainly do apply particularly where we have somebody else who now owns the property and moreover there was a misstatement that i would like to correct the concept that latches is not a defense to public nuisance in california that's just incorrect and i would cite the court to the case of the cello which is cited in our in our briefs now it's true there is a general presumption against using lies as a defense to public nuisance but again that presumption applies particularly strongly where the government is acting to protect everybody's interests but even implied shallow where a permit denied and they were attempting to declare a public nuisance a public entity was held precluded as a result of latches from attempting to enforce its interests one motorway versus campbell in city of that was being undertaken was not permitted in the first instance golden gate is a good example of this where there was an improper installation basically a beach club and it wasn't permitted from the from the onset and they were notified that it wasn't permitted unfortunately the regulators waited a while to come back but they said you were never permitted it was never authorized therefore were in force and again i would distinguish very very clearly between the government exercising its proper policing powers to oversee and it a matter of general public importance versus a private patient a private litigant who sits on their rights and does nothing for seventeen years and then when the yes you're on site you keep coming back to private but it seems like here seeking into the ground water that seems public not private it is your honor and i have to responses to that first of all as the activity of the d t s see at the site which is noted throughout the record second to the extent it had it interest to the public which is being addressed by the d t s sees involvement where were they for seventeen years now listen it's important and they're going to cry public intrust clearly that's not the motivation in this case and clearly the seventeen year gap there's no want evidence has been lost that would help him exonerate himself documents showing his lack of involvement in santa barbara vance witnesses that would have testified to his limited inventory control role in santa barbara and memories as sharp as he is it's unfair for the nearly seventy three year old mr merrett to have to recapture detailed memories after plaintiff's cause such along the way and the contamination has migrated at least seventeen years further this is significant since the essence of the case is for cost recovery and damages related to the migration of solvency quoting groundwater this is fundamentally unfair and against our system of due process mr stone earlier today said none of these issues today become an issue if the original arms action was allowed to have continued yes it would have as to mr merit who was not named in the original force with donald george the exhibit two to play his complaint with mr giordano george was a part owner of tri county sales according to the exhibit involvement was that he was an owner of tri county sales and this is an exhibit two to the combine the action between one thousand nine hundred sixty eight and nine hundred seventy four so judge fisher below was concerned both when she made the order dismissing the arms action and also and talking about latches in the second action about the specific issues with respect to mister  george who was in his late eighty's because certainly as he indicated in the original order dismissing the first case for lack of prosecution and the prejudice involved and case that there were memories that had been out undoubtedly degraded in the intervening seventeen years and documents have almost certainly been lost or destroyed and that applied all the more so with respect to mr george so here on the one hand we have mr george who's eighty five years old who didn't have involvement with the property since one thousand nine hundred seventy four and then didn't have any involvement with respect to the  not just seventeen years before that forty four to fifty year time it is in the hands of the goldbergs it's in the hands of the ostensible plaintive mr ruben who comes in to litigate the matter  so you know maybe in some certain circumstances latches should be utilized and applied sparingly but i submit that with an eighty five year old man who hasn't had any involvement with the property since  given the terminations made by the district court judge that determination should back to the probate court at the transaction to correct the title and receive permission to sell the property the reason there was no assets it goes to goldberg's the loss of use contention under that he should really make repairs or vacate his tenant he put his tenant on notice and the tenant stopped paying rent stuck paying rent and stayed on the property in possession for fifteen months claims here are prospective recall the goldbergs themselves while they were alive spent money on environmental consultants in the one nine hundred ninety s and lawyers and in the two thousand and twelve time period the representatives of the goldbergs through using trust as says earned from the state's property spent money again on environmental concerns and there can only be one removal actions so the key here has always been prospect we spend what money we could we have nothing left this is a really big problem we want injunctive relief we want declaratory relief that someone else is going to take over this burden those who actually caused the contamination in the first place because circle  has two goals one is let's get these hazardous waste sites cleaned up and the second one is the make the polluters pay and that's why we're here and that's why we're on appeal because that's the way the law was created that's the way the law should be and that's