to the unfair competition claim this is the claim that the judge did not set aside in the verdict and therefore there's an eight hundred thousand dollars judgment from which an appeal was taken yes with respect to the unfair competition claim let me first start out with the elements of unfair competition i think are very important here and i don't think there's much of a dispute about it the party much goes to stanch time and expense and money developed in this property secondly they must show that it was taken misappropriated by the friend that without any with little or no money and clearly injury there has to show an injury i don't think any of those points remember the matter of law here first your honor the solutions is a new company it was formed for this matter where this project they have no history there bed they said there would be no revenue sharing with the city they claim these two aspects are the property but to show that you're right a great have to show that they've put in a lot of time and money in the developing mess and they haven't showed it this is not the formula for coke or why rice krispie snap crackle and pop we believe your honor that the record is the void of anything that shows the first element of unfair competition substantial time and substantial money in the developing were discussions among the parties about whether there should be five hundred or four hundred or three hundred spaces in the back of these modular units but there was not a substantial there was no time and money i would submit in the developing the so called property and the fact that they decided not to share revenue with the city they also cannot show and there's nothing in the record to chose that they go to any substantial time or money to developing around with regard to the midst of procreation money so there is hardly anything the record that shows that this was even misappropriated from them and finally your honor with respect to the injury telcel did not argue any damages are arising makes any reference at argument and indeed it was never argued any sort of emotional distress case counsel never asked for damages for quote worry there's nothing in the record to support damages for worry it never put on any testimony showing that there should be support the quote going to school in mind just made it clear that the eight hundred thousand dollars he allowed to span was not based on last profit not based on price it was based on what the districts were conce as compensation for this worry and compensation for going to school but the record i submit is the board of anything that sounds like an art form of commercial in financial infliction of emotional distress eight hundred  where the eight hundred thousand dollar number came out of the yeah so we think it's very clear why that there's nothing in the record to support any well here's where it might have come from although this is not something that seems easily th within also written opinion i'm quite willing to go along with judge also saying that during the negotiations and dealings that you had with the other side you guys discussed building strategy and how this was going to work and what you were going to do and to that extent there was some property in terms of the ideas that they would have had you then take those ideas and use them to push your own but again if that sounds like unfair competition then the question is damages assume you've done that that's damages i find his conclusion that there are eight hundred thousand dollars worth of damages if i don't say that worry is concerned compensable i find it absolutely inconsistent with you setting a the nine hundred thousand nine million dollars verdict that is to say because he says these guys were never going to win the bid period ever so i think you know in my view you're going to get zero or you're going to get mine million eight hundred thousand dollars i guess do you want to go he conceded that at trial there was that there was no joint venture or no written contract well we know there was no written contract and i did acknowledge that you can have the fact that there's no waiting times like this and that we're not relying upon the that when the parties themselves contemplate that there's going to be a widening when they contemplate there will be a writing that is going to be fine and that's going to reflect the parties and then the courts are correct in looking at that and saying if there signed must have had an executed agreement with regard to the advertising and as i say that's on grade zero one one of the supplemental excerpt of record and it's very clear your honour's that that was not the case here that they never they submitted a verified affidavit under oath that said that any agreement was subject to working out the details subject to working out the details and we know the details included how the ownership issue and this agreement as to advertising and financing and before they could enter into any debt that was a requirement that they would have and the best proof of that is like the proof in the pudding is what the we can do that you know i thought you'd asked that question and i really looked and this is a very i can't find a case that goes either way on that point and i think it's it is an unusual situation where somebody doesn't is granted time in a trial the party testified that there was no like i haven't had a chance to justify that you this for a moment you know what i'd like to do that enough time this morning we're not we're not going to make you know saddam before you're finished but let's hear from the other side and i want to hold you know sort of a sort of a strict  competition claim and i'd like to go there too because mr mason is characterized point talks about worry because it really had to do with misusing is his discussion of a jury instruction which is not going to be error and which is jury instruction number twenty eight and that jury instruction as he quotes it covers both fraud and unfair competition damages and in the opinion he says that the jury instruction authorized an award for the amount any kind of damages for it that was the instruction and he went laboriously through the issue of whether you could recover it lost profits or not now profits can be recovered in this case for unfair competition in the amount of eight hundred thousand dollars because that's what the jury said and more recently the jury didn't say lost profits eight hundred thousand dollars it said eight hundred thousand dollars correct yeah the introduction was you can award anything for damages for any injury issue on the issue of fraud got there at the nine million dollars an hour day he doesn't see how we prove causation well that's right it doesn't say that there aren't any lost profits but of course because you can't show that you would have gotten a contract necessarily they're going to be no assuming that he's right on that for a moment and i understand that's in question but assuming he's right on that that there was no way you're going to win that contract how can it be that he can award last profits on the eight hundred thousand dollars said was well i see a ranger of lost profits too but it's a lost profits range of anywhere from three hundred thousand dollars to the good to minus two and a half million dollars this is a loser contract if my lower number comes out so what is the jury have in front of it an expert who testifies that the lost profits range could be laid down here and another expert who's testifying that it's upwards of ten million dollars and more with an instruction from the said the number nine million dollars neither expert said the number nine point eight million dollars all of those numbers are a function of what the jury thought and there's another instruction and part of the verdict  allocation does that make sense yes it does the frog was the prime mover here wasn't it it goes all the way back to the fact that on march fifth a press release came out saying that at sh wants to spend as characterized as contractual promises that you can't enforce which doesn't make sense these are statements of fact that are fraudulent nature he says if we agree to do this with you at potential competitor in l or had announced that maybe it was a potential competitor instead of a joint venture partner now another still hasn't committed so they have another meeting at the second meeting mr trento gives them a competency ality agreement he signs mr hooper says ok we're in and i'll commit the resources to actually working with you this is like homes versus one or work two people two women agreed to go into the cosmetics business by having a kitchen table conversation they don't even discuss how they're going to divide the profits this is like gunter versus another california case the supreme court case where the parties have telephone conversations about forming a joint venture to build the iowa service center in fresno so you can have joint ventures created by people shaking hands and going forth to do something together we have much more than that in this case actually did it they started writing things together they started meeting things together the brief show that eller sourced through potential subcontractors for city solution for the combine and their team then they have another meeting with us the one on the twenty sixth and they don't say anything about as they reaffirmed the promises that were made our march thirteenth that will be with you if we do this a after the first meeting when they got to know each other after the confidentiality agreement was signed on april third they have a third meeting after the tour and look at the news rocks they go back to the palace hotel and they shake hands and the next thing that happen solutions as it is a bidding thing and that l or in particular was going to be the company handling we have ties in and then they actually behave that way they actually go look for other subcontractors to be on their team and they start writing documents together and sharing information and having the economic summit where they come up with their bidding strategies now what judge alfred does on this what i'm trying to say to you about the fraud case because obviously they don't want the eight hundred thousand dollar what was your first top number again the top number for our version of the contract was i think thirteen point four million for their version of the contract which they actually got so it's not speculative very great extent and if the jury chose to believe that nine million dollars of the damage was caused by ehlers fraud there's nothing wrong with that and eight hundred thousand dollars by the so many ways to respond that it's ok let me give you let me give you a laundry list when he says that the scores are a lot cited he's weighing the evidence were there lopsided now he says there was a seventy six point differential does he provide a context for that no it wasn't that seventy six points out of one hundred that would be a terrible loss to seventy six what were the actual numbers that you got or the actual numbers they got we got for sixty six sorry sorry they got for sixty starts we got three ninety that's the seventy six point differential so what we're talking about is fran contract with them i've repeatedly heard them say well but it's all speculation how do you know that city what it even signed a contract with city solutions or you might have been able to get all these various approvals for the contract so if you accept evaluation the next question is was judge is there any substantial evidence in the record for the jury to believe that ehlers wrong with it and i'll point you right to that if you want we must not hold eleanor to its promise for that would be an impermissible contract recovery previously part in this case he's thinking back about his summary judgment ruling  is an alternative approach through a contract when you have fraud and it's a tougher case than he made me prove it to ten people unanimously and we did the fraudulent promises were well paid with you and not with that shell and we won't share information so those promises should not have he should not have put up roadblocks like that he should have understood those as being false statements and then he wouldn't have would have been able to invoke his ruling on the contract now i want to be clear about this i'm not looking for a new trial here our client would like to have its jury verdict restored in full measure that's what i took and the him no i'm not but i do want to answer one other question to say to us you don't want a new trial and yet you ask for a trial in the country let's be clear if you were to agree with them that the eight hundred thousand dollar unfair competition word should be thrown out too then i would ask you to reverse  point things not with respect to this particular contract but you know you go in there and you kind of make your points and then they want by the time you've got a list very precise and scientific and so on but there's a lot of the shot that goes on and i have to say my my instinct allocation things and i it seems to me that the jury probably didn't have enough evidence in which it could have concluded well it's close enough and maybe that maybe if these guys had not had the advantage of sitting down with these people knowing what they were going to do they feel they might have won the gun thing exactly to look at and the whole point of that was the city doesn't like the fact that it has to look at street corners now with six eight ten twelve new slabs cluttering it up so you are dealing with something that's subjective and the jury solutions numbers would have been higher and actual numbers would have been lower and and if you take for sixty six and three ninety and you just divide back home in factor to reduce it all down and you get a ratio it turns out to be a six to five ratio for the case so the solution is versus clear channel communications is now submitted for decision and we will be an adjournment until tomorrow morning thank you very much