good morning in may please the court my name is jesse cripps i'm appearing on behalf of defendant an appellate michael's stores i'd like to reserve three minutes of my time in this case the district court applied a mechanical and inflexible rule that would allow class members and definitely told to such limitations through the stacking of class actions even after a district court had already definitively decided that those claims were not amenable to a class action treatment that rule runs laws are or stand as state law applies your honor california law applies your honor this court said in the ninth circuit decision and if you give me a second i'll get you the citation for s s i i'll get you the citation your honor honor i think it is a tolling doctrine it's a doctrine of whether or not the stats limitations in this case was in fact told the only way in which the statue of limitations continues to not be expired in this case is if in fact it was class action rule a rule about the viability of class actions in federal court that what the federal i don't know the answer this question but i think it's interesting and i kind of like it at least so it doesn't matter whether or not i think the result is the same both under federal and state law because the supreme court in california in jolly said that the california courts should look to rule twenty three or into federal procedural law in the absence of controlling state law on the you could be right by inference but that was about a second class action it was about a second class action as is this case in this case there was the first class action the did grossest class action then there was  second class action the class action and plaintiff anderson's claims requires that the filing of the second class action told the statute of limitations continued to toll the statue of limitations  on her claims and what what the this court said and robin was that when you have the successive filing of class actions that is the piggybacking of class actions one on top of another once you've voluntarily opted not to opt out of a class but to be part of a class and have a court determine that your claims are not appropriate for class adjudication as that you can't rely then on a piggyback or successive class action to continue to  has held and the only difference between robin and this case is that in this case the class action happened to have been filed by somebody else he was not part of the class action services in this case with catholic social services says is that to the extent a court doesn't reach the merits of the class action below doesn't determine that the class action is not appropriate for rule twenty three treatment in that case it was a that the second class action was filed by somebody else shouldn't and doesn't matter because the maximum was that one should not be permitted to do indirectly that which they cannot do directly and what this court held in rob as well as every other circuit that's considered the issue is that if you file an successive class action that doesn't operate to toll your stats or limitations you can piggyback a class action to if it is not inconsistent with federal law that's why i point the court but i believe that the result is exactly the same under both robin four hundred jolly and i think it's important to look at in robin what this court said this court  the statute of limitations continues to run until and if you give me a second i'll find the quote for you until the court enters an order denying class certification on page three fifty four of the decision it says the entry of an order decided suggested is anything wrong with the class per se nonetheless she would say the same thing your honor tech same position that well and have to be consistent well in catholics or social services this court said honor i don't think that that matters here i think there may be a difference there but i don't think that matters here because the court ruled both on predominance and superiority grounds that really what it is how is it how  your honor first and foremost this court has drawn a bright line and said that the rule in toastie it said the rule of tolling is one that's affected by virtue of the filing of the class action so and a where plaintiffs in one jurisdiction that is in this case california seek to rely on a class action that was filed in another jurisdiction that is federal courts to toll their claims just by virtue of the fact that you have to be in front of a different judge or in a different court or in a different forum doesn't allow you to toe your claims and the courts in this case said both in clemens and in hatfield that the weight of authority and california's interest in managing its own judicial system counsel is not to import the doct hs in favor of not applying tolling because otherwise what you end up with as the hatfield court explained is this court explaining hatfield is a situation in which the california courts are then the target of  copycat lawsuits so they when a court decides in federal court that class is not amenable to classification it makes those state courts a target for subsequent copycat i reserve the remainder of my time i'd like to mention the fact that and looking at the tolling doctrine both under california law and under federal law you have to look at the principles involved you have to look at the reasoning behind american pipe and crown court and what motivated the court's decision in motive one thing is i can put the district what the state court did here actually most to motivating concerns in looting the fact that a federal court had already addressed the issues that were in front of it and that these individuals just the same which is a collateral estoppel concern right well you know primarily collateral concern your honor mention the fact of notice and whether or not an individual needs to have notice i think that knows well i'm sorry earlier you mentioned a question about it in there and if they're in state court how they supposed to know what's going on how they sized you know whether or not there are a couple of points your honor first there's a fiduciary obligation between a plaintiff's lawyer a plaintiff and the representative class so the crown court can seal rule which is a rule that operates to say once  court enters the order of the sort of occasion that's when tolling stops that rule is consistent with the converse rule which is that tolling starts at the commencement of a class action regardless of whether or not some claims that for periods beyond the time of the first case right now they had some ten claims for which they didn't have to have telling as on the first case is that right  weeks that she was employed i thought not she needed the tolling for both class actions in order to bring that she need to first one yes she needed to she had the second one and she need the first one for everything i thought no your honor i have not done the math on that but by the time she did in fact bring her claims she i believe she did need i thought that there were some of her claims covered weeks first certification no that's not true as to her that's true as other people are more timely after the first certification that's well i think what your honour's referring to is the fact that there were a number of individuals who were also affected by the andersen decision i thought she was still employed no she was terminated before the did you know safety certification but she was but she wasn't late i'll be trying to say is as i understand the facts i could be wrong issue your honor she did it well she did in fact it whether or not she needed the first class action for tolling or not when the court determined that her clients were not appropriate for class adjudication she was then on notice that she needed to go out and file or individual claims under crown cork and seal and to rely upon a second filing of a second class action that's  with this i'm going to ask him thank you ron and after that answer questions i'd say in jolly what the court said the california supreme court said is applying the doctrine of american pipe and crown court conceal you have to look at the rationale behind it there was no reason to incentivize people to continue to sit on their claims including miss anderson because one hundred thirty eight other people at that point in time had gone out and filed individual cla we're not protecting that that's a class action device we are not protecting against the filing of individual claims because in the months following the decertification of the josephs the case had already devolved into a series of individual claims that there's nothing that we protecting around that time thank you please the court david gallo on behalf of absolutely anderson if it please record i will first give the dates that your honor judge burton was asking about ray action was commenced in september two thousand and eleven california has a four year statute on wages so at any point in time an employer must be prepared to defend wage claims going back four years so when the second class action was commenced in september of two thousand and eleven that means that protected pay period from september two thousand and seven forward ms anderson's employment concluded in october and august of two thousand and eight so yes your honor if there is tolling only from the second class action ms anderson is protected pardon and park yesterday was a very good point please let me mention this one of the things that is unusual about a wage and our claim is both parties agree that the question whether an employee was mis classified is exempt is determined on a work week by work week basis but in addition to that the actual claims arise every pay period when the overtime pay is not paid what that means is this is not like a securities fraud this isn't even the same case as the prior to joseph action because there's almost no overlap in time in fact the number of papers by my calculation the overlap is only thirteen point six percent of the pay periods in the two cases so they're not even the same class action they involve different claims this is also not under the literal robin statement of an n i piggybacking rule because the reaction was brought by people who had not even been members of the prior class because the reaction was in state court we know from the supreme court's decision in smith versus bayer that a different legal question determined under a different legal standard was going to be applied for class certification what that means is it brings it directly into the under the precedent of the bu decision and catholic social services where it says that a subsequent class action is permissible where it's not an attempt to relate a gate a prior denial of class sort of cation smith versus bayer says it's not an attempt to relate a ga district judge denied sort of occasion on grounds that individual claims would predominate four years later the same class action was filed by mr baker in two thousand and eleven this court held that that second class action was viable in the trial  court had heard instructing the class allegations because a different legal standard was going to be applied in the later case now in bigger vs microsoft it was a different legal standard because there was an evolution  honor the california court certified the class that proves that it was applying a different standard than had been applied by the the federal judge four years earlier four and a half years earlier and in fact the supreme court in smith versus bayer says it's a different question a different legal standard when you consider questor vacation in a state court first the federal court and by the way michael's agrees we quoted from one of their briefs to the district court where they said that it's a there's a pre certification notice a bell or west notice this may be peculiar to california jurisprudence well the district court held that people like andersen who are not lawyers reasonably relied upon that to believe that their interests were being protected by the judge here relied prime field robin and this parallel case in california as not applicable here because it was about finding a new class action i find individual action and you keep saying that to that point i don't understand it seems to me that if these were in fact the same class action covering the same time period and one allowed under robin as a class act then then the second class action couldn't toller the couldn't told it couldn't tell thier person either well what the district court and we agreed is that there is tolling because it's reasonable but otherwise there was nothing different about the class one or different time period is everything we're dealing with different claims the claims arise every two weeks at the pay period and the different claim why it's different claims the claims arise differently every pay period they're not the same claims but that's very conceptual and abstract but in fact in terms of what you would look at to decide whether the class was viable or not you'd like to be looking at the same set of considerations i e to these people  operate sufficiently similarly in different places that they're there through commonality and so on you are comparing to defend its business operations and organization from two thousand and six versus two thousand and eleven it's not even the same company five years later so yeah there are differences but that's certainly not not our strongest argument there are basically four different theories for a farm and it's one of them is the reasoning of the district court another one is that it is under catholic social services it's not an attempt to relate a gate because it's plaintiffs who weren't even in the first class in a different time period under a different legal standard in a different court system most importantly hatfield versus halifax in our view is again controlling precedent because had first had fuel versus halifax find equitable tolling being distinct from and broader than class action tollin and the elements it required were timely notice to the defendant in the filing of the first claim lack of prejudice to the defendant in gathering evidence to defend against a second claim good faith and reasonable conduct by the plaintiff in following the second claim notice to the defendant by the re a complaint is not even disputed lack of prejudice to the defendant as i've explained there is a for your limitations period in california at any point in time an employer must be prepared to defend wage claims going back four years when way was commenced in two thousand and eleven this defendant was required to be prepared to defend wage claims going back to september of two thousand and eleven and in fact they did it for all the other members of the re a class i meant to say two thousand and seven i apologize so they had there's no prejudice to the defendant because they're required at any point in time to be prepared to defend claims going back four years prior to filing and they they did that they met marshal their evidence regard to the other class members and re and we know that they did for these people to finally good face and reasonable conduct this is where we get in the issue of actual notice of the pendency the reaction was provided to these people they had a  to rely upon it they're not lawyers they have no way of knowing what ultimately would be determined in regard to tolling and furthermore when the state court excluded from them from the class they acted promptly it at supplemental that excerpt of record page five seven three lines eight to nine in addition this is an issue of pure law why because we're on a motion for judgment on the pleadings so every issue before the court is facts and if there's any there if there's any if there's anything missing from the record that's what should be determined on discovery after a motion for judgment on the pleadings in addition an alternative ground so an issue of pure law should be considered where the opposing party will suffer no prejudice as a result of failure to raise the issue in the trial court or error has occurred and injustice might otherwise result again we're hearing a motion for judge when the pleadings and the words equitable tolling war in my briefing to the trial court and i have cited to exactly where they are found law i agree that it is the sovereign power of the state of california to determine the limitations issues before this court however and both parties agree that however i also agree with michael's that state courts will look to federal precedent for that reason we anticipate this court will examine federal precedent in determining what a state court would do because fall quoted with approval this court's unbanked decision in catholic social services and when you take the c s s rule that what's not an attempt to relate a gate is permissible and when you add to that the u s supreme court's observation in smith vs bayer that it's a different legal question adjudicated under a different standard in the state court system those two things taken together mean that that fall would hold in this case that there was polling i also want to add before opinion expressly stated that it was not addressing equitable tolling at all which means that california law all of equitable tolling is undisturbed and this court's holding in hadfield versus health acts describing in articulating the elements for equitable are still good law and that panel decision should bite this panel let me say talking about state law here's a quote we're defending it has noticed of the claims quote the reasons for the statute of limitations do not exist in quote that's a court california at page twenty three of our brief there are several several california intermediate appellate court decisions quoted in our brief around pages twenty two and twenty three and they talk about how question because in our view because lack of prejudice is important to tolling there's no argument that can be made that michael's would be prejudice by tolling from the second class action because remember when it was filed they were the class of the class and the second class action is limited to the type period that it would otherwise be limited to and she can only give claims for that time period and not force she's not trying to get anything earlier because she can't because of the class doesn't cover her for that earlier period i think she might be told but she can't get anything because she's out of the class isn't defined that way that what you're saying i think the answer is there's no argument defendant can make for prejudice for tolling from the second class action if we're do not get is she getting any tolling from the first class action just point i don't know that she needs red but i'll give you one minute i appreciate that you're only one sheet to answer the court's question she started her employment back in two thousand and five and that's found it hard but she can to get anything beyond they were helpful anderson versus michael's stores is submitted and we are taking