[00:00:12] Speaker 00: Good morning, Your Honors. [00:00:13] Speaker 00: Eduardo Marcherelle from the law firm of Marcherelle Law, APC, Council for Appellant, Balmaccino LLC, a California limited liability company. [00:00:24] Speaker 00: Your Honors, this case is about whether to apply California law or Washington law with regard to equitable tolling. [00:00:31] Speaker 00: We contend that it was an error to decide this issue on a Rule 12b-6 motion in the Washington District Court because we need to determine whether the significant relationship test requires application of California law or Washington law. [00:00:49] Speaker 00: And that is intrinsically a necessarily, it necessarily requires discovery because it's a fact-intensive, it's a fact-intensive exercise. [00:01:01] Speaker 00: Your Honor's equitable tolling is about the pursuit of justice, and that's all we're looking for in this case. [00:01:06] Speaker 00: All we want is the court to hear our case on the merits. [00:01:10] Speaker 00: And sometimes, especially in David versus Goliath cases like this one, it's been my experience, having worked at big firms and small firms, that Goliaths are given a little too much deference. [00:01:21] Speaker 00: And this case is a prime example. [00:01:24] Speaker 00: Practically speaking, yes. [00:01:26] Speaker 02: This case starts out in California. [00:01:28] Speaker 02: You file your complaint there, the California district court, the California court says no jurisdiction in California. [00:01:34] Speaker 02: You appeal that rather than go file your case in Washington. [00:01:37] Speaker 02: Why? [00:01:38] Speaker 00: Because till the end of my days, I've been practicing 19 years now, till the end of my days, I'll think that was the wrong decision. [00:01:44] Speaker 00: We have so many California ties here. [00:01:46] Speaker 02: We have, let's just start with- Even when you get to the court of appeals in California, they say you don't have enough ties. [00:01:54] Speaker 00: I agree. [00:01:55] Speaker 00: I mean, I agree they said that, but I really disagree. [00:01:58] Speaker 00: We have four residents who formed a California entity. [00:02:02] Speaker 00: They did the ideation. [00:02:04] Speaker 00: They came up with the idea in California. [00:02:06] Speaker 00: They developed the product in California. [00:02:08] Speaker 00: They developed marketing materials in California. [00:02:11] Speaker 00: They marketed from California. [00:02:14] Speaker 00: They spent all their time, energy, and funds in California. [00:02:19] Speaker 00: So the locus of what was stolen, 100% indisputably, California. [00:02:24] Speaker 00: So the LLC was registered there. [00:02:26] Speaker 00: The principal office is in California. [00:02:28] Speaker 00: 90% of the communications occurred with my client talking to Starbucks [00:02:35] Speaker 00: from California. [00:02:36] Speaker 00: Now, the biggest meeting took place in New York, and I'll get to that. [00:02:39] Speaker 00: Starbucks has just under 10% of its stores in California. [00:02:44] Speaker 00: So, quote from their declaration, of 30,848 stores, 3,034 are located in California. [00:02:53] Speaker 00: That's a direct quote from excerpt of record page 25, the declaration of Starbucks' Victoria Wu. [00:02:59] Speaker 03: The problem with all that, it kind of proves that the injury took place in California, but as far as tort is concerned, it sounds like the tort itself was committed elsewhere. [00:03:10] Speaker 00: Well, we don't know that. [00:03:10] Speaker 00: And that's exactly why we're here. [00:03:12] Speaker 00: So that's, yeah. [00:03:14] Speaker 03: So that's my question. [00:03:15] Speaker 03: The district court relied on the California case that we were just talking about to say that the uncontroverted evidence before us is that the sip kit lip gloss, as well as the entire promotional campaign were created, developed, and launched in Washington, not in California. [00:03:30] Speaker 03: So I have two questions. [00:03:31] Speaker 03: One, is it appropriate to rely on the California court's factual determination to dispute any of that? [00:03:41] Speaker 00: Absolutely. [00:03:42] Speaker 00: First, that's an unpublished opinion. [00:03:44] Speaker 00: It's an unpublished opinion, so it should not be cited to. [00:03:47] Speaker 02: It's the case. [00:03:48] Speaker 02: It's this case. [00:03:50] Speaker 00: I agree, I agree, but how can they determine that without engaging in discovery? [00:03:57] Speaker 00: Starbucks says, quote, the Starbucks product development and marketing teams are in Seattle along with all other Starbucks corporate functions. [00:04:05] Speaker 00: The teams are in Seattle. [00:04:07] Speaker 00: It doesn't mean things happen in Seattle. [00:04:08] Speaker 00: They didn't say we came up with this idea, which is trade secret theft. [00:04:13] Speaker 00: is what we're alleging, we came up with this idea in Seattle. [00:04:17] Speaker 00: They don't say that. [00:04:18] Speaker 00: They don't say the product was developed in Seattle or Washington, and in fact, we, if given the chance to amend, which we're seeking reversal, not amendment, but if given the chance to amend, we would allege that a supplier contacted our client and said, hey, Starbucks just called me, and that supplier's in Minnesota. [00:04:38] Speaker 03: So these are all issues that we need to discover. [00:04:40] Speaker 03: Well, then again, that doesn't really help California. [00:04:43] Speaker 00: Well, there's significant ties to California. [00:04:46] Speaker 00: And I could keep going with the California ties. [00:04:49] Speaker 00: And that's what the significant relationship test is all about. [00:04:53] Speaker 03: I think you could clearly prove injury in California. [00:04:55] Speaker 03: The question is, can you prove the tort in California? [00:04:59] Speaker 03: And I haven't seen anything to show that yet. [00:05:02] Speaker 00: Well, torts are about where the injury occurred, right? [00:05:10] Speaker 03: Well, they could move. [00:05:11] Speaker 03: I mean, it doesn't have to be the same. [00:05:12] Speaker 03: The locus of the harm doesn't have to be the locus of the injury. [00:05:17] Speaker 00: Well, the locus of the harm is Starbucks has no bigger interest in California stores. [00:05:25] Speaker 00: Just about 10% of their stores are in California. [00:05:28] Speaker 00: That's more than any state in the United States. [00:05:31] Speaker 00: That's more than any jurisdiction in the world. [00:05:34] Speaker 00: California is their number one jurisdiction. [00:05:37] Speaker 00: So the harm, [00:05:39] Speaker 00: injured my client in California, indisputably. [00:05:43] Speaker 00: All four members of the LLC are there. [00:05:44] Speaker 00: Again, the principal office is there. [00:05:46] Speaker 00: I won't go into it again. [00:05:47] Speaker 00: You've heard enough about our ties to California. [00:05:50] Speaker 00: We don't know where they [00:05:54] Speaker 00: misappropriated our trade secrets. [00:05:56] Speaker 00: They are saying our marketing team and our product development teams are in Seattle. [00:06:02] Speaker 00: I mean, we need depositions, we need discovery. [00:06:05] Speaker 02: They're also saying that the guy who came up with the idea, supposedly in Seattle, didn't know anything about the New York meeting. [00:06:10] Speaker 00: I'd love to cross-examine that person. [00:06:13] Speaker 00: And so let's get into the case law, because the case law holds, number one, [00:06:19] Speaker 00: Any statute of limitations decision, you need to look at the complaint liberally. [00:06:23] Speaker 00: And that's Javelin versus Dean Witter, page 44 of our brief is where we cite it. [00:06:29] Speaker 00: And Super Mail Cargo versus United States on page 45 of our brief, these are both Ninth Circuit decisions, holds that a complaint cannot be dismissed for statute of limitations on statute of limitations grounds. [00:06:44] Speaker 00: Unless no set of facts establish timeliness. [00:06:48] Speaker 00: So what that's saying is when when you're applying equitable tolling [00:06:54] Speaker 00: Let me cite another case. [00:06:55] Speaker 00: Cervantes v. City of San Diego, cited on page 44 of our opening brief, another Ninth Circuit case, says that equitable tolling is not amenable to resolution under a 12b6 motion because it implicates matters beyond the pleadings. [00:07:10] Speaker 00: What we do know is California has major ties. [00:07:15] Speaker 00: What we don't know is how Starbucks allegedly came up with the same idea, where it was developed, by whom, who came up with it. [00:07:27] Speaker 00: Well, one person. [00:07:28] Speaker 03: Isn't that the problem then? [00:07:29] Speaker 03: If you don't know who, what, where, then that doesn't involve Twombly. [00:07:37] Speaker 00: I mean, I think it does. [00:07:38] Speaker 00: Twombly stands for the proposition that it's [00:07:42] Speaker 03: uh... plausibly alleged laws of the s any of the possibly ledger section two and i don't if you can say who what where and how to can even [00:07:51] Speaker 00: No, we have our theory of who, what, where. [00:07:53] Speaker 00: Our theory of who, what, where is we went to New York, they heard our idea, they loved it, they stole it, and then we don't know how they stole it. [00:08:02] Speaker 00: That's where discovery, so it satisfies Twombly because plausibly, we gave them the exact same idea, and then a year or so later, the same idea is released by Starbucks, right, and produced. [00:08:14] Speaker 00: So do we satisfy the plausibility of Twombly and Nick Ball? [00:08:18] Speaker 00: hands down. [00:08:20] Speaker 03: Okay, then even as you assume that, how do you get beyond collateral estoppel with the California State Court? [00:08:28] Speaker 00: Collateral estoppel is there's no decision on the merits. [00:08:33] Speaker 00: There was no discovery taken in the California State Court either. [00:08:35] Speaker 00: This was dismissed on the very first motion for personal jurisdiction. [00:08:40] Speaker 00: So there's no weighing of evidence. [00:08:43] Speaker 00: There's no discovery that took place. [00:08:46] Speaker 00: I would love to cross-examine this person who said he came up with the idea. [00:08:49] Speaker 00: I hear that, with all due respect to Starbucks, in every trade secret dispute I've ever handled, right? [00:08:55] Speaker 00: Oh, we came up with this idea independently. [00:08:57] Speaker 00: You're wrong. [00:08:58] Speaker 03: I'm just curious. [00:08:59] Speaker 03: Is there a case that says that dismissal on personal jurisdiction grounds is not a decision on the merits? [00:09:04] Speaker 03: I mean, I don't know, one way or the other. [00:09:07] Speaker 00: Well, it's deciding the merits of jurisdiction in that forum, so it doesn't decide any merit of the case. [00:09:16] Speaker 00: It doesn't decide whether there was trade secret theft. [00:09:20] Speaker 00: It doesn't decide any of the facts that we need to try or fact to decide, and we're just looking for a court to say, let's take this on. [00:09:29] Speaker 00: Bringing it back to the substantial relationship test, we saw this in Mays v. Leipziger, which is a Ninth Circuit decision we cite on page 37 of our opening brief. [00:09:41] Speaker 00: And it's essentially this case, right? [00:09:44] Speaker 00: The plaintiff sues in New York, because she's located there. [00:09:48] Speaker 00: She's found not to have jurisdiction. [00:09:50] Speaker 00: She sues in California too late, because the statute of limitations has run, and equitable tolling is applied. [00:09:59] Speaker 00: Now, there has not been one day that we have not had an active case against Starbucks. [00:10:05] Speaker 00: In fact, we just filed in New York because we're like, come on, somebody's got to hear this, right? [00:10:11] Speaker 00: So this is what equitable tolling is all about. [00:10:14] Speaker 00: It's the pursuit of justice where all we need is a court to hear our case. [00:10:19] Speaker 00: And it's never been heard on the merits. [00:10:21] Speaker 00: And that's what fairness is all about. [00:10:23] Speaker 00: It's like, hey, [00:10:24] Speaker 00: OK, you went to the wrong forum, according to California, not according to me. [00:10:29] Speaker 00: You went to the wrong forum first. [00:10:30] Speaker 00: So now we're going to apply fairness tolling, basically, and say Starbucks has never thought this case was going away. [00:10:38] Speaker 00: They had no reason to let evidence grow stale. [00:10:41] Speaker 00: They had no reason to lose contact with witnesses. [00:10:44] Speaker 00: So it's fair for this to be heard. [00:10:47] Speaker 00: And if the Washington court just allows us to take discovery, [00:10:52] Speaker 00: we could then have a meaningful analysis under the Substantial Relationships Test. [00:10:57] Speaker 00: And under the Substantial Relationships Test, we believe with the full facts, it would be even clearer that California law should apply. [00:11:04] Speaker 00: And if California law applies, I mean, it's pretty slam dunk. [00:11:09] Speaker 00: The three factors are timely notice. [00:11:12] Speaker 03: Council, do you want to reserve some time for rebuttal? [00:11:15] Speaker 00: Sure. [00:11:16] Speaker 00: Please. [00:11:17] Speaker 00: Yeah. [00:11:17] Speaker 00: Thank you. [00:11:40] Speaker 01: May it please the court, Robert Mitchell of KNL Gates for Starbucks. [00:11:46] Speaker 01: What's undisputed in this case is that the plaintiffs filed their action against Starbucks in Washington after the statute of limitations had run. [00:11:56] Speaker 01: What's also is that there's no basis for statutory tolling in this case, and that under the Washington law of equitable tolling, plaintiffs cannot go forward. [00:12:08] Speaker 01: They concede that. [00:12:10] Speaker 01: Their argument is that California law rather than Washington law should be applied. [00:12:16] Speaker 01: To prevail in that argument, they have to show three things. [00:12:19] Speaker 01: First, a difference that is fundamental in nature between California and Washington law on equitable tolling. [00:12:27] Speaker 01: I think they have established that. [00:12:29] Speaker 01: But then that just gets us to the tests that are laid out in Washington law for conflicts, and whether or not Washington would apply its own law, which it would presumably do, or California law turns on the contacts, both the quality and the quantity of contacts, with respect to jurisdictions. [00:12:50] Speaker 01: But even beyond that, and the plaintiff's best case [00:12:54] Speaker 01: is that they're inconclusive. [00:12:56] Speaker 01: Then you look at the policies of the respective jurisdictions. [00:13:00] Speaker 01: And in particular, what is the policy of the foreign state with respect to equitable tolling? [00:13:07] Speaker 01: We heard a lot about California's law of equitable tolling. [00:13:11] Speaker 01: We heard nothing about the policy underlying the Washington statute, Washington doctrine of equitable tolling. [00:13:18] Speaker 01: And that is a fundamental question here. [00:13:21] Speaker 01: On the issue of contacts, [00:13:23] Speaker 01: Judge Chun did a very thorough job of looking at the restatement tests that are applicable under Washington law to examine where contracts can be said to have contacts and where tort claims have contacts. [00:13:38] Speaker 01: With respect to contracts and the Cameron case, the place of performance is the critical thing, along with the location of the subject matter. [00:13:49] Speaker 01: After the meeting in New York, [00:13:51] Speaker 01: The subject matter of this dispute was with the Starbucks employees who were all based in Seattle. [00:14:00] Speaker 01: If you look at Excerpt of Record 26, the Bates Declaration, he explains that the decision to run this marketing campaign for the SIP kits was conceived and executed in Seattle. [00:14:14] Speaker 01: The SIP kit, by the way, was never sent to California. [00:14:20] Speaker 01: There were only 10 [00:14:22] Speaker 01: sip kits ever distributed, and the winners were in eight U.S. [00:14:26] Speaker 01: states, not California, and two Canadian provinces, B.C. [00:14:31] Speaker 01: and Ontario. [00:14:33] Speaker 01: There was never any sale of this sip kit anywhere. [00:14:38] Speaker 01: So there were no winners in California, no sip kits ever went to California. [00:14:42] Speaker 01: The place of performance was in Seattle, and that's the only location that has contacts with a dispute from a contract standpoint. [00:14:52] Speaker 03: Well, why wouldn't the plaintiff be entitled to some discovery on all that? [00:14:57] Speaker 01: Well, Your Honor, the plaintiffs, had they timely filed their case in Washington, would presumably have been able to take discovery on the issue. [00:15:08] Speaker 01: But by the time they came to Washington, the statute of limitations had run. [00:15:11] Speaker 01: Can they have limited discovery on the purpose of jurisdiction? [00:15:16] Speaker 01: Well, they didn't ask for that, Your Honor. [00:15:18] Speaker 01: But more than that, if they wanted to actually explore the Washington witnesses on that subject, they should have brought a claim in Washington after they'd been told that California courts did not have jurisdiction. [00:15:34] Speaker 01: Judge Collins is absolutely right about that. [00:15:37] Speaker 01: That should have been a red flag and a flashing red light. [00:15:41] Speaker 01: And even after the Court of Appeal decided, they waited until five days before the mandate issued, by which time the statute of limitations had run. [00:15:49] Speaker 01: On the tort side, this is section 145 of the restatement. [00:15:57] Speaker 01: You look at the place where the injury occurred, and they say the injury occurred in California because they were in California. [00:16:04] Speaker 01: But that is purely fortuitous. [00:16:06] Speaker 01: The marketing campaign that they are challenging here took place throughout the U.S. [00:16:11] Speaker 01: and Canada. [00:16:13] Speaker 01: And the place where the injury occurred would presumably be where the winners were located, none of them in California. [00:16:22] Speaker 01: If they wanted to assert damages arising from the distribution of the SIP kits, presumably they would look beyond California because none of them went there. [00:16:32] Speaker 01: And then under Washington law, you look at where the conduct occurred that was the source of the injury. [00:16:39] Speaker 01: And there's no dispute here that conduct was in Washington, none of it in California. [00:16:46] Speaker 01: But even assume for a moment that they were right and that the outcome of the context analysis was inconclusive, then you would look at the policy interests of the jurisdictions in question with respect to equitable tolling. [00:17:03] Speaker 03: That's what Restatement Section 6 says. [00:17:05] Speaker 03: Before you get there, I had a question about the collateral estoppel issue. [00:17:10] Speaker 03: So California courts clearly determined that all of this was developed in Washington, not in California. [00:17:17] Speaker 03: But it was on a jurisdictional question, but to have collateral estoppel, it has to be on the merits. [00:17:27] Speaker 03: Do we apply collateral estoppel to that California decision? [00:17:31] Speaker 01: Your Honor, I've looked at that issue carefully, and I've come to the conclusion that [00:17:35] Speaker 01: The issue was actually litigated in California, but we don't have a final judgment in California to which collateral consequences attach. [00:17:44] Speaker 01: So the decision by the California Court of Appeal and the underlying decision by the trial court are instructive here. [00:17:50] Speaker 01: They are not preclusive. [00:17:51] Speaker 01: Thank you for that. [00:17:53] Speaker 01: So let me talk a little bit about policies. [00:17:57] Speaker 01: In California, equitable tolling is broadly applied to avoid harsh results. [00:18:04] Speaker 01: And the courts actually say that if the legislature doesn't like that, the legislature needs to amend the statutes of limitation to eliminate the possibility. [00:18:14] Speaker 01: In Washington, the policy judgment is very different. [00:18:19] Speaker 01: And specifically, courts honor the policy determinations made by the state legislature. [00:18:25] Speaker 01: This is explained clearly in the 2022 case of Fowler versus Guerin, which, as the court knows, addresses and confirms the Washington rules of equitable tolling. [00:18:39] Speaker 01: In Fowler versus Guerin, here's what the Washington Supreme Court said about the policy issues relevant to equitable tolling. [00:18:50] Speaker 01: First, equitable tolling is an extraordinary form of relief [00:18:54] Speaker 01: from the statutes that are adopted by the legislature. [00:18:57] Speaker 01: And those statutes, and I quote, reflect the public policy of the state, close quote. [00:19:03] Speaker 01: It goes on to say that the statutes of limitation reflect the importance of finality and settle expectations in our civil justice system. [00:19:13] Speaker 01: A statutory time bar is a legislative declaration of public policy, which the courts can do no less than respect. [00:19:22] Speaker 01: Goes on to say, and I quote, recognizing the policy underlying statutes of limitation, this court has cautioned against broadly applying equitable tolling in a manner that would substitute for a positive rule established by the legislature, a variable rule of decision based upon individual ideas of justice. [00:19:44] Speaker 01: It said such a departure must be rare for those general rules to have their intended effect. [00:19:52] Speaker 01: This court, and I'm quoting again, has followed the standard set out in Malay, which has the four different tests, because it appropriately balances the demands of justice against the important principles underlying statutory limitation periods. [00:20:08] Speaker 01: This is on page 507. [00:20:10] Speaker 01: And that standard ensures that equitable relief does not contradict the public policy announced by a coordinate branch of government. [00:20:21] Speaker 01: Finally, [00:20:22] Speaker 01: And I quote, by allowing equitable tolling upon a showing that the defendant engaged in bad faith, false assurances, or deception, the Malay standard properly recognizes that a defendant should lose the benefits of finality provided by statutes of limitation only when that defendant has engaged in conduct that justifies making an exception. [00:20:45] Speaker 02: You're saying there's no allegation here of any bad conduct on behalf of Starbucks, other than stealing the secret in the first place. [00:20:53] Speaker 01: Right. [00:20:53] Speaker 01: The bad conduct would have to relate to the conduct in the litigation that followed the alleged bad conduct. [00:21:02] Speaker 01: And by the way, the SIPP kit was lip glosses, which are lipstick cosmetic products. [00:21:08] Speaker 01: What we are alleged to have stolen is the idea for a lip balm, which is transparent and meant for medicinal purposes. [00:21:16] Speaker 01: Put that all aside. [00:21:17] Speaker 01: Starbucks, the defendant in this case, did not engage in conduct [00:21:21] Speaker 01: that would justify making exception to the statute of limitations. [00:21:26] Speaker 01: Washington's strong public policy favoring the application of statutes of limitation and approving exceptions only in rare circumstances not present here reinforces the careful contacts analysis performed by Judge Chun and like that analysis compels a conclusion that they should not be allowed to proceed. [00:21:49] Speaker 01: Does the court have any other questions? [00:21:52] Speaker 01: Judge cool. [00:21:53] Speaker 02: Yeah. [00:21:54] Speaker 03: Okay. [00:21:54] Speaker 03: Thank you. [00:21:55] Speaker 03: Thank you. [00:21:55] Speaker 03: Thank you counsel. [00:22:12] Speaker 00: Thank you, Your Honors, and may it please the Court. [00:22:17] Speaker 00: I'd like to start by talking about HIVU versus Plotkin, which is cited on page 38 of our opening brief. [00:22:23] Speaker 00: There, the Ninth Circuit held that equitable tolling applies when several remedies are available to a plaintiff, and in good faith, they pursue one. [00:22:34] Speaker 00: Now, again, till the end of my career, we'll believe that [00:22:37] Speaker 00: suing in California was the right thing to do, and so it was absolutely good faith. [00:22:42] Speaker 00: And importantly, that court also said that equitable tolling is to be liberally applied when a plaintiff files in the wrong forum. [00:22:50] Speaker 00: That's exactly what happened here. [00:22:52] Speaker 00: And again, I don't concede that it was the wrong forum, but the court was too... I have to at this point. [00:22:57] Speaker 00: Yeah, I do. [00:22:57] Speaker 00: You're right. [00:22:58] Speaker 00: I do concede it was the wrong forum, but point being... Yeah, I'll move on. [00:23:07] Speaker 00: Okay. [00:23:08] Speaker 00: Importantly, zero policies that underlie the statute of limitations apply here, right? [00:23:16] Speaker 00: It's all about having certainty. [00:23:18] Speaker 00: Again, Starbucks has never had a day when we don't have an active case against them, so they've never had certainty. [00:23:25] Speaker 00: Evidence growing stale. [00:23:26] Speaker 00: Again, they have declarations from people. [00:23:28] Speaker 00: They undoubtedly have prepared the defense for this case. [00:23:32] Speaker 00: And, and again, the case has never not been active against them. [00:23:35] Speaker 00: So there's no reason for the evidence to have grown stale. [00:23:38] Speaker 00: So those are the two key policy points behind statute of limitations and neither apply importantly. [00:23:43] Speaker 00: So I want to go to a case called PTP one click versus Aloe Vera, which was cited on page 25 of our brief. [00:23:51] Speaker 00: And that case stands for the proposition that choice of law is a fact-intensive process that does not lend itself to a 12b6 determination. [00:24:03] Speaker 00: And that's why discovery should take place as— Did you ask for limited discovery for jurisdictional purposes? [00:24:11] Speaker 00: I'd have to look, Your Honor, but it's also implicit in [00:24:15] Speaker 00: If you're dismissing a case at the pleading stage, you're not getting discovery. [00:24:18] Speaker 00: So it's basically a right that we should have under this case law that is not being provided to us. [00:24:27] Speaker 00: uh... can i just ask them if if you're sitting washington law applies is there any allegation about faith that you can make against starbucks to set satisfied there isn't it would be slam dunk in their in their favor on that one and that's what session yet that's why it's so important that we get discovery to analyze under the substantial relationship test for the court after week takes maybe some depositions of people and and some written discovery [00:24:54] Speaker 00: after the court gathers facts, really this should be decided on a motion for summary judgment. [00:24:58] Speaker 00: So this should be reversed. [00:25:00] Speaker 00: The motion to dismiss should be denied, and we should move into discovery. [00:25:04] Speaker 00: But even if, as your honor noted, the discovery were limited, we would be, you know, that's what we're looking for. [00:25:12] Speaker 00: And it aligns with the policy underlying equitable tolling. [00:25:16] Speaker 00: I'm going to quote from McDonald versus Antelope Valley Community College District, which we cite too on page 36 of our opening brief. [00:25:23] Speaker 00: And it says that one of the main policies is to prevent injustice and technical forfeitures of the right to a trial on the merits when the purpose of the statute of limitations, timely notice to the defendant of the plaintiff's claims, has been satisfied. [00:25:38] Speaker 00: That's this case. [00:25:40] Speaker 00: So I also want to move on to addressing some of the points Starbucks' counsel raised. [00:25:50] Speaker 00: You heard him say that there weren't that many kids. [00:25:53] Speaker 00: Again, this is the type of stuff I'd love to cross-examine them on. [00:25:56] Speaker 00: That all the marketing, or sorry, that all the, it was a sweepstakes. [00:26:01] Speaker 00: So this product is about marketing. [00:26:03] Speaker 00: It's about, hey, come get your frappuccino, you might win one of these lip glosses. [00:26:08] Speaker 00: And so the marketing took place across Starbucks stores. [00:26:12] Speaker 00: What does that mean? [00:26:13] Speaker 00: The marketing happened most, the sweepstakes was most important in California. [00:26:17] Speaker 00: Just because somebody didn't happen to win one of the 10 prizes there, [00:26:20] Speaker 00: That's just random, but it had a strong effect in California and cancel you're over your time if you want to start wrapping up, okay [00:26:32] Speaker 00: Just the key decisions, we don't know who made them. [00:26:37] Speaker 00: We don't know where they were. [00:26:39] Speaker 00: We would love to look into that. [00:26:41] Speaker 00: And so the lip gloss versus lip balm distinction is not really one that I think is important. [00:26:48] Speaker 00: But Your Honors, at the end of the day, what we're looking at is equitable tolling is a policy that should be applied with liberality. [00:26:56] Speaker 00: And it's also not one that is to be conducted [00:27:02] Speaker 00: on the pleadings. [00:27:03] Speaker 00: It is one that is factually intensive, and therefore we request that reversal take place and this case be allowed to enter discovery. [00:27:11] Speaker 00: And if they believe that the statute of limitations is still applied, they reserve that argument and they can continue making that argument, but really it should be determined after facts come out. [00:27:23] Speaker 00: Thank you very much. [00:27:24] Speaker 03: Thank you, counsel. [00:27:25] Speaker 03: This case is submitted. [00:27:27] Speaker 03: The next case for argument is Fulmer versus