and particularly i think one thing that would be important for this court if it's going to reverse to tell the district court is that this doctrine of separate legally distinct wrong not a catch all phrase that allows the court to avoid dealing with the three prong test of the california equitable tolling which is what the district court did through the california equitable tolling doctrine and you have to go through the three step process and by looking at the the conduct the wrong yes that is alleged not the remedy is that yes that's right and here i think it is clear that the two proceedings were based on the same set of facts namely the death of benjamin locates the as the borrow boys ranch and the fact that one of them was labeled that's right i mean basically it seems to me what the purpose of equitable tolling is is to see you whether the defendant is prejudiced by the fact that there that the first proceeding was followed by a second proceeding and in this case really there is no evidence whatsoever prejudiced in fact the defendants don't even claim that they are prejudiced they're not claiming that they were not notified or aware of the the first proceeding which was the tort claim and they're not claiming that they were not in a position to defend against the nine hundred eighty three action they don't make any of those claims of prejudiced instead they're there contentions like the just for courts are based on an labels rather than an actual analysis of the facts of the case and the application of the equitable  the whole point of acquittal was holing frankly i think that sometimes the first claim is for one reason or another a mistake you know look at the the first california case  point the elkins case where plaintiff first filed a worker's comp claim only when it's determined that he was not an employee then he files a tort claim where there is a mistake but that the defendants are not prejudice state court ordinarily would that indicate you've got six months before iowa court action where well it doesn't say it doesn't say what i mean lawyers aren't all band so i mean what do you think that means in the standard stuff that 's a reasonable interpretation i'm not saying that it was what i would have done but certainly it is not a completely unreasonable interpretation of the california supreme court ha and supreme court polling applies occasionally and in special circumstances and this is not one of those special circumstances where actors will tolling to the fly if you look at all of the cases the plaintiffs the time seems to open the door pretty pretty wide to equitable tolling does it not i mean the california supreme court makes this decision on a simple principle and proceed from practice is neither sacred nor mutable it must be able to withstand the charge that it is an equitable burden or dysfunctional where as in the instant case the complaint alleges that the administrative and judicial claims each involved the same facts and in the same dependent we find that allowing plaintiffs to offer evidence to support application of california's equitable polling doctrine in there's got to be when they talk about this practice if you incorporate to determine whether or not there's a little tolling sort of aki is recognizes that you've got to look at the special circumstances of the prior planning and the court cites the parties overruled a hospital review board an internal review board that was found not to hold the statute or in stone a complaint to the police commission that's not sufficient to toll the statute those types of notice but they aren't the type of he's out of fifteen thousand highway one ninety nine and gaspe california and the board of supervisors as a nine hundred block h street and crescent city california and then under prong three if you want to go through the analysis irwin is dispositive because there's no good faith in this case plaintiffs through his attorney had a full investigation knew over forty witnesses and did nothing to file the section nine hundred eighty three claim and certainly an attorney it comes to application it doesn't do that it doesn't apply the doctrine any more then then the district court in this case did it did not have the benefit but hell didn't have the benefit of this court's decisions and survived or avatar and it is not a case that carefully analyze the facts of the various proceedings in the way that survive two defendants who are different in the two different proceedings they talk about all the rest and they say state and federal claims constitute legally distinct wrongs because the appellate i'd like to pursue only one remedy as to one distinct wrong filing suit against the state government agency under state law the federal district court did not care and holding that the statute of limitations relevant to be a problem federal civil rights action had not been told by a previous filing of the state tort claim action there's no question that there's the case just argued well argued well briefly chance a minute and we'll move on to bruce versus