appellant because the district court did not explain why it dismissed count one which is the primary count i want to discuss this morning it's reasons could have been no one is intentionally  contractual relationships yes it's reasons could have been either or both or neither of werner's asserted grounds but assuming that it was one or the other or both both of those grounds are erroneous as a matter of law and the decision should be reversed first were argued below that and it's necessary to allege an independent wrongdoing in order to stay a claim or tortuous interference with contract and under the california supreme court's decision in kuala maine versus stewart title that is simply incorrect as a matter of california law the court there stated that wrongfulness independent of the inducement to breach is not an element of tortious interference with contract and further that a tortious interference with an existing contract is a wrong term contracts they set forth a specific term of one year there not if will and they are in their problem in courts language worthy of the protection of california as tortious interference with the employer employee contract relevant that's a good question your honor but the but the subject matter of the suit is really the contract even though we're suing over the tortious interference with that contract and california choice of wine looked at the employment relationship why would they be bound by what the contract for a choice of walkers is my understanding is that california honors the choice of law provision in the selection question of at will or term is a question that under the contract is by cal california law in effect that's the analysis that the district court in the western district of oklahoma applied when he addressed very similar situation in c r s he's case against a different competitor hunt and under the law of california this qualifies as a term contract is has a one year term and i think to explain it to really understand this you have to understand the contract which is a part of the record because it was attached as v's contracts  the employment contract is in a sense front loaded in terms of the consideration that is to say that when c r s he goes looking for truck drivers in a time which we have now have had for quite some time of severe shortage in front drivers they go to recruit truck drivers they look for people who are not currently serving as truck drivers people who could use a better job and their recruitment program looks for these people then c r s he will fund their travel there to wishin and send them to truck driving schools and enables them over a period of three weeks or more earn a commercial drivers license so that it is bringing new truck drivers in after program and even at this point they're not really ready to become full fledged truck drivers so there is another month a period of c r s fees training program in which these be newly graduated productive as it would be if it were simply engaged in the business of trucking not not serving as a training vehicle so there is a very substantial upfront amount of consideration that cirrus t provide to these truck drivers and what was happening was once these the training period was finally over werner or other companies would come and hire these truck drivers away because the backside of the front loading of consideration is that serious he pays them for the remaining period of the contract a little bit less than market so that it can recoup some of its costs and we're not having a training program to fund can pay more for that first year so what's happening here is are we're training people putting them on the road in our own expense and then when they get out on the road our competitors are taking them away from us before we can recoup now the contract itself specifically states in paragraph three that once this initial recruitment period in these contracts a year is over the relationship is at will says that expresses now that the question here really is whether the fact that c r s t reserves to itself the right to dismiss without cause but with is the situ with the circumstance that it cannot recoup the thirty six hundred dollars entry liquidated damages provision a sufficient limitation that's to take this out of being an illusory contract and make it a term contract and plainly bad yes that's what judge fry found in the western district prospective advantage claim under the reeves case from the california supreme court would apply if there were only an at will relationship are with an alternative pleading but because it is i'm arguing we dismissal of the inference with prospective economic advantage clearly now if you can if you reverse him on the contract claim and rule for us then i don't think we need the the tortious interference with prospective advantage buying those you would have determined that these are at that these are term contracts and deserving of the protection of the torch they're friends with contract law well but if we do find that there is a violation of contractual out part is that sufficient allegation of contractual interference that we are to dismiss doesn't that then become a wrongful act under seventeen two hundred of the business and professions code and doesn't that then become a wrongful act which is sufficient to say intentionally friends with prospective economic advantage well yes we agree with you all the way down the line as you propose are you making a judicial admission that if we sustain a pardon if we reverse the order dismissing count one we can then  of the unfair competition claim and the prospective economic advantage claim no you are certainly not unfair competition lyon and even if the alternative claim we like want to clear up the record and perhaps give us work no no but i is intended to be disjunct and that each one of those is an individual basis for proceeding under the statutes and in particular celtic held with respect to the one fairness which is one of the places that we rest we believe that the the free rider issue that is posed by werner hiring after we've invested all this money in these people and train them is a poses a risk to competition as well as a risk to us because it's going to make our driver training program economically unfeasible and when that happens it's going to cut off a significant source of new truck drivers to the truck driving market and when there is a new truck drivers remember there's a shortage of them now and when the new truck driver flow stops that's going to drive the cost of truckers and hence trucking up and that's going to harm consumers and that is a that there is a potential threat posed by the free rider that we think constitutes an unfair business  for dismissing an employee in a term contract and that's not what the statute says there is no california state court that has ever ruled them away nor to my knowledge has any has this court issued a similar decision nor soon was was victim of course because the court held didn't really think this was a contract for employment so much as it in its consulting contract anyway but the goos case from the california supreme court in the year two thousand although it dealt with an implied contract claim contains a lot of very important discussion on the nature of contracts and particularly terminations provisions  the court there noted that the employment relationship is fundamentally a contractual relationship and specifically stated that the statute california statutes do not prevent the parties from the green to any limitation otherwise lawful have any questions i'd be happy to answer them ok thank you but getting back to this one one of these limitations was the four clause limitation and the other would be the five minutes ok so let me just toss out some of very quickly and the other was the financial so the parties are free to define their relationship including the terms on which the relationship can be ended if they wish and they can reach any country understanding otherwise lawful concerning the term of employment or  i guess with that i'd like to reserve the rest  that the district court properly dismissed all of the intentional and tort claims the contracts that are attached to the first manic complaint and cannot dispute that they're written that the interpretation of those contracts is a question of law for the court the a t l case that we cited in our brief specifically says that so they try to make a distinction between the first plane for interference with contractual relations as opposed to the fourth interference with prospective business will a chanson rule book relationships but that distinction is of no merit since the contracts were attached at the complaint the district court had them for review the district court  were in advance in opposition to those moving papers so the fact of the matter is that that that is the exact reason there is no other reason and the the fact of the matter is if you look at the contract that were attached to the complaint each contact has the two sick salient provisions first that the c r asked he has the absolute right the absolute right to terminate the truck drivers had anytime without reason without pies and without recoup and that's true and i'll get to that in a minute the second point and equally poignant is that those contracts also say that c r s t has the absolute right to change the compensation of the employee at any time in its sole discretion so let me posit the following situation to you this see are a few dry serious she could have lured truck drivers who hadn't been in the business before it's that and it's and it's the other will as well let me say this c r s t the other provision in the employment agreement says seriously as the absolute right to set a term contract or not well it doesn't vote to the fact that it's a term contract but what what it does go to is the fact that what c r c is telling these drivers in order to to to get them to come contract for one year you can't work for anybody else ever in any industry and at the same time we're going to be able to tell you you're going to really get one hundred dollars an hour but since our contract says we can lower your compensation at any time ts theory is correct that these people are bound for entire year no other employer can can can hire them without being sued by c r s t for need it and do it selectively for one floor you know another it doesn't say constructively do it for one employer or another but the name but but the fact of the matter is that a kid in but but it certainly can do it for ryan spencer and it can will say that but i well i will say i will so i got another argument ok let's get to the real meat of the argument here which is the fact of the matter is that default and the and the fact of the matter is of if another party wants to apply california law they're required to bring the i'm in one california law they're brought required to raise that issue in the district court they didn't and they're not permitted on appeal classification of two separate types of employment you have employment at will which is a rebuttal presumption which is governed by labor called section two nine to two and then you have employment for a specified term which is governed by labor code section two ninety four which is mandatory and the courts clearly obviously it's a well established judicial and construction of statutes  the employment term less be for one month and the second requirement is that the employee can all work in the employer can only terminate four and these are very important words will breach not just a breach of that contract and so what the legislature has created is it in twenty nine twenty four is to say look we're going to allow the employer to terminate for these reasons and which it which involves reasons of serious misconduct serious misconduct on the part of the employee and the remedy if the employer terminates for any other reasons of the employee is not just oh we forgive thirty six hundred dollars that we pay for trucking school the remedy of the employee would be i have an action for damages which is the amount of earnings i would have had had the contract if it was a specify term contract gone through to the end of that contract that's exactly the right that's the r s t took away from the employee in this case when it specifically it put it in its contract that they could terminate for any time and for any reason and then when you go onto that case this court in new will turn in the north korean case which we cited in our briefs specifically held and  consistent with the argument that i just made by the way that the it's plainly held that contracts for a specified term and the court here use clearly when you use the word only interpretation twenty nine twenty four that doesn't make the contract not a true contract it's just a term contract for the employee cause of action if it's terminated for an inappropriate reason well but you have to read to you have to read the two twenty nine twenty two and twenty nine twenty two to twenty nine to forty together and together what they're saying is you have employment for a specified term with hast which has to be f one or more than once one of them one month and in addition to that you have to have or you have an employment for specified term these are the only reasons that an employer about to terminate an employee so when you read them together there is the two fold requirement and this court in the new some cases plainly held as i said that that was the law then you go on the either party it but the contract went on to say either put either employer or employee could terminate on five days notice to the other now the anderson court in analyzing that contract and it was a wrongful discharge claim brought by the employer against the employer focused explicitly explicitly and c r s team below actually noted that in its opposition papers on the ability of the employer to terminate on five days notice in issues there so you had when your employment contract you had you could be terminated on five days notice but in determining whether was that will the employee the anderson courts specifically said look it's because the employer can terminate it at at at at any time at any reason that makes it at will and that's exactly the right that c r s t works to claim here now here s t says we're going to distinguish anders then a different situation might result look here s t is wrong for the following reasons first it ignores that anderson focused exclusively on the employer's ability to determine to terminate employment at any time e to determine that what was an at will employment what was a one year employment contract was really an at will employment secondly the anderson discussion about into consideration in independence iteration is not the consideration that would be required to support a decision for to contravene the mandatory language of section two nine to four significant misconduct not just that i'm late for work one day on the port of the on the part of the employee so those kinds of specific i mean willful of the tool continued are very strong words demonstrate that labor code two ninety four was intended to be mandatory and to remain an employee to bring to avoid the  for a specified term the fact that he forgives the thirty six hundred dollars in in the is not even close to the damages that a driver would suffer s you should choose to terminate it's his employee within one month of the term but that is exactly the remedy that the read the legislature invision under twenty nine twenty four were required an at will employment contract is the right of the employee to terminate an employee any time for any reason we have that here i specifically said that the implied covenant of good faith and fear of dealing requires mutual fairness we clearly do not have that here third and got i asked gus also emphasized that whatever contract the limitations may exist between the employer and employee they must be lawful and that's not present here because twenty nine twenty four is mandatory and then we go on to the fact that since since the contracts all right well contracts as a matter of law the california recall the supreme court has required independent wrongful conduct in or where there is at will employee and it's that specifically that you do not need that the soliciting or hiring of that will employee is not actionable absent some independent client suddenly stops paying these truck drivers and i would like to point out to your honor's that that the whole point of going forward with the case would be to allude to elucidate the record fill the record out and i think that that's what discovery and should be should be used for that's not the kind of argument you can use to support a dismissal like oh yeah you're on his way he's just talking about the terms of the contract but the contract plane ready but the contract incorporates the handbook which has never been his now not even made it into the record yet think the court is quite correct that the the handbook address with the entire fleet and in not a single driver and they have to and you have to keep in mind that this contract exists to protect our investments in these drivers not to crush the bill of putting aside though that compensation provision is on protecting our investments in taking these people putting them up training them having them learn on our trucks all of which is a considerable amount of money and that's really why we went to this contract in the first  place in terms of section twenty one twenty four it is not exclusive and i think the court is if we correct it is it exists so that an employer who does not spell out terminations rights on this contract had some guidance in terms of what can or cannot be the case but when you look at what the supreme court said in guus about how to terminate how you can structure your terminations provisions it's clear that you have much broader discretion as long as you have mutual between the employer and employee is how to go about doing that and as i said there is not only the clause limitation but here the financial limitation thirty six hundred dollars in the scheme of things for each of these drivers and we have a fleet of them standstill amount that we're trying to recoup i mean we're in the business depriving the trucks really and the market forces that buffet us require us to have some ability to recoup all of our investment to bring these people into the market to drive i disagree with my opponents interpretation of the andersen case there is a case in which the court basically said both parties agreed to a contract in which they can express to walk away at any time that is the essence of a any at will contract and we have a different type of contract we have a front loaded consideration contract and  the drivers are not free to walk away at any time because they've enjoyed the benefits of being educated and given a cd l in a profession that they can then access to hear music anywhere they want hopefully they'll stay with us if they can go any place with that license and drive a truck and they could live with and there is so that also answers the point about the inability of a driver to drive elsewhere that's simply not the case so if there are any further questions i'd be happy to answer them if not i'd like to sum up by asking the court to reverse and remand this matter by the way i would also ask you to deny the motions to strike my my my twenty eight j papers that we've asked for i would also like to inform the court that the hunter case has now settled and so the tenth circuit peel has been dismissed the case has been dismissed the