please ok very good just introduce yourself and if this is new for you then i'd circuit if you want to reserve any time let us know we'll we'll try to help you be you should keep track of your own time ok your honor but i have been here before and i six the plaintiff centered into binding purchase and sale agreements with a twenty percent down payment to purchase condominiums of the hard rock hotel in san diego by the end of two thousand and seven the hotel it open and under the california unfair competition law the u c l five years eventually cross motions for summary judgment were good were made by both the plaintiffs and defendants and after initially ruling for the thank you again one of my favorite talking points hundred eighty days your honor is without any legislative comment as to why it was why it was included it simply appears on the other side of the have the title of the ad clarifying amendment we have all of the comments of the sponsors saying it's it's over it's it's clarifying ilse and we have the regulations promulgated by that say to the contrary when there's other case law and so on that this was a change in the law was it not know why not  this but i mean i want to know why did they have why do they call it occur flying amendment if it was changing the law again your honor i don't believe that was changing the law i believe what congress has said is hug know that doesn't that make my point you were wrong meaning you had a different position before we're straighten you out what was your position before their position was that  different they were covered in certain circumstances right i think that your honor i think were confusing i'm confusing here the whole issue of the supremacy clause with the issue of whether or not there's a clarifying amendment congress specifically stated that this is a clarifying amendment what does the hundred eighty days mean then you know i've never been able to figure that out candidly your honor it just appears out of out of thin air as balanced against good question your honor i think the co equal i think you have i think if i were sitting in your position i would look at the law first but i certainly would look at the title to to assist with but don't we only look at the title of the law is ambiguous and i don't see how the hundred eighty day leaves the line thank us it seems like it makes no sense to have that provision and last the law is only going for well your honor if i could agree with you if there was some support for that position within any commentary anywhere but we don't look at legislative history when the law is clear and i just don't see how we get past one hundred eighty days making this law clear your honor without repeating myself i don't believe that the hundred  eighty days is determinative i think rather you have to balance between what the sponsors say what the title of the act says and what congress voted unanimously to do as opposed to this hundred eighty days which just appears out of air but but counsel you know i think we do get back to lanc raphe you get four parts there it might be helpful if you can tell us in what way this response a land grab because the reality is if you look at the text first that there's no ambiguity the title doesn't make any difference and anybody that considers the text these days knows that what members of congress say in isolation probably doesn't mean much of anything  sometimes committee reports maybe can be but you can find whatever you want there but so just just for humorous if you will to apply lang graph to this case how does it work of course  second part of that is whether there's a manifest injustice to the to the litigants to the planers and in this case on the ninth circuit authority of lyon i would i would case did in fact before the act as you could construe it have a cause of action and or maybe even many others around the country had a similar situation based upon previously effect leave regulations if this law does what you're talking about it would in fact impact their causes of action would it not your honor i think that's circular to be honest ok because i think at the beginning even look at we look at whether whether you've already decided that that is that it's that we lose if you decide if we lose it becomes circular to say well we had like you know i'm asking you to not to do that i'm asking you to apply this in a land grab this is one of the one of the one of the problems if you will of landgrab which is how it affects people who previously had causes of action so i'm saying hypothetically if these folks had a cause of action based upon the previously existing h believe it does i don't believe that until there is a final determination by the court of liability that it is anything more than a cause of action under the law is and then well that's one of the problems and then another prong has to do with whether the act itself clearly intended that the law be retroactive what do you point to in the law that says that's the case i think i can i thank you for asking that your honor i would point out seventeen eleven a one as compared to seventeen eleven two of fifteen u seventeen eleven a one is the statute of repose for registration violation and it contains no language that allows tolling or anything o this case you have a hundred eighty day effective date basically which would put it well beyond your concept of a statute of repose and under which if i understand it correctly after three years  the sign a contract that's the end of the story there's no more ifs ands or buts that's next correct that's great how do you reconcile the hundred in eighty day aspects of this law with your concept of this is a statute of rep se your honor i don't find them to be contradictory at all i compare a one day two and a two clearly say you can hold the statue of limitations whereas a one contains no such language riposte or not and what in what in this new law do you point that you say makes it a statute of repose you're referring to a different part of the bills but what are you referring to in this law that you limitation a statute or repose i'm asking what you are relying upon in stating that the hundred eighty days has nothing to do with the issue you're saying that this law changed everything i want to know how it how that can be if it was intended to be prospective which the hundred eighty days argue window suggest that it was if your honor finds if you are if this court finds that it is prospective then the conclusion that you've reached is correct it's where i part company with you is that it is a prospective and drawn her as to as to whether it's active oppose i would invite the court's attention so they require total i don't think that's true they talk about when it accrued that's different than tolling again it accrued under under seventeen eleven it accrued the day they signed the purchase and sale agreement which was in one hundred eighty days future and the suspenders of thirty years of consistent administrative and just construction and the additional bel continue to apply to condominiums as office there was no change or clarification of the definition of lofts and the case law is clear the administrative agencies are clear that as long as certain requirements are satisfied lots includes condominiums so all that happened in twenty fourteen was a limited carve out that couldn't have been clarified because nothing was clarified  was an exception drawn from part of the definition and without the definition itself you changed there was nothing to clarify so let me just switch your attention for a moment to get moving away from the  amendment here as as you know the exclusive use issue has a big role to play in whether or not there's a lot of these laws condominium lots were covered and you can trace through what the previous regulations were and so on but one thing that kind of troubles me is this rental management agreement right now it was signed after the  original documentation but it seemed by its terms to basically eliminate any period of time which your clients had the sole exclusive right to that condominium  to remove people you would you agree with that i would agree that this would be a more difficult case had that not been an optional agreement signed afterwards because all of the rights and obligations under  measured as of the time of contract and that's when the obligations go into force that's when the clock starts running on the rights of recession that's when the two year that's when rescission had to be in the purchase agreement and the two year time  start so you look to evaluate whether this is a covered condominium as of the time the purchase contracts were signed as of the time the purchase contracts were signed no one was required and no one had signed any rental management agreement so something that happens afterwards yes the purchasers limited their ability of excuse exclusive use after the faster there's a violation of let's assume for a moment i can just tell this is not going to work out very well right if this is going to balance economically we really need your help right now we'd like to amend the original documentation and include the or i may write that would also give you a problem would it not it it would it would be very complicated in this case though because we also rely on admissions at an admissions and statements at oral argument both the expressiveness and both separate state in the fourteen and the oral argument sufficient use restrictions but under the facts that were admitted at the time period that counts so the timing here is everything is right it's most everything because we don't concede it would actually have made a difference because  are still the opportunity under the rental agreement itself and we quoted the rental agreement the owner still have that twenty eight days of exclusive use in contrast for example would they have removed anyone else in the unit during that twenty eight day period under the terms of the r m a yes yes they they still and as as always happens when you have a hotel and a guest you can always exclude someone from your room so if they had taken advantage and said this is the block of time these are twenty eight days then they could kick anyone out of the room who tried to come in in contrast with that sure for example where as just curdle pointed out the district  the actual language from the agreement that said and there was a fourteen day restricted provision for the hotel agent reserves the right without investor approval to change the investor occupan or occupancy period with a view to generating distributions to investors so even the fourteen days and that's nine twenty federal saw at thirteen fifty one to fifty three even  that sure the fourteen days was guaranteed it could be eliminated to increase profits because all the profits and pressure were shared among them all the investors i mean to me sure i understand what you're saying if i understand you correctly you're saying that given the actual facts here that this document was signed after the closing of this and the less the language of the r m a is such that if it had been side housekeeping so it seems to me on e r four four four two that in the us may that the hotel has the right to send in housekeeping when it thinks it's appropriate and that i wonder if that means that they don't actually have exclusive use an argument that wasn't made an argument that was necessarily waived by the admissions to the district court well the failure to respond but nonetheless or the answer is that like any hotel guest you remember the scene in paperchase where they were rehearsing for their final exams and they barred the housekeeping you can always keep any hotel guest can keep housekeeping under the room wall while they are in the room so the fact that the hotel would under the normal course of management be permitted to send in folks to clean the room is always subject to the discretion of the person in the room in this case the owner you can put a sign on housekeeping stay away and the housekeeper has to stay away but that's an argument that was let me let me hear you go back to distinguishing that six circuit case yesterday because i guess i read at least reading that six circuit opinion excel so i didn't see any way of distinguishing that case from from other facts other than that it was just a court opinion in that case there was a nine twenty five so thirteen fifty one fifty three which said that in the purchase agreements itself the fourteen day period wasn't guaranteed in order to increase profits of limited of limitations do you believe that any particular owner used rooms and that's because these in that sure were purely for investment purposes everything was pulled together all rental income from the entire you have to do is research the days that you want and at that point is yours to do with ever more that's a distinguishing factor now of course yeah sure might have come out another way had the district of the purchase contract and one ours in which there were no such conclusions all the principal distinction is the only use limitation they are talking about those that perhaps they couldn't use their fourteen days there because the purchase contract talks about a maximum of twenty eight days so it's clear that someone else is going to be using these units for the rest of the year in this contract to write and that's where we rely on the hud guideline  which has not been challenge of the hud guidelines has for any portion of the year but that would be fourteen days or twenty eight days right fourteen days or twenty eight days perhaps someone would challenge it at fourteen days saying that's too short but there's certainly no question the twenty eight days is sufficient yes for that period of time for twenty eight days roughly a month you have exclusive use of your property and that's sufficient for purposes of the law as it's developed there's no case to the contrary to have and that's very rights of real estate they just put their money and never any concept that they would ever have any right to do anything with the actual unit somebody else is going to management entirely whereas here your position is that you fall under the hood guidelines was that your purchaser had the right and i'm quoting it to inject another person during the time he has the right to use that law that for his records where did the purchase agreement say that it's not an investment contract or not an you have a case going back to this a cruel question so they say they don't have a case under california law that says the u c l claim has to accrue at the same date that the federal claim would do you have a case the other way saying that it can occur on a different da a state case about rule statute that has a different or for old age i don't have such a case but if you recall prop sixty four in california that but like in this case if there still would have been a period on that hypothetical there still would be a period you could bring suit it just wouldn't be as long as otherwise that's right but there may be plenty of cases where you get a longer period of time before there's economic injury and shorter first of all with respect to exclusively use your honors there is no excuse for use it's you can rant a unit according to the u n may just like any other call up and say i'd like to use it it's not a specific  february to march or you use december it's you're a guest and i'd like to refer to what you have a guaranteed to be a guest for twenty eight days or a maximum of twenty eight days but no specific twenty days just why does that matter other people if i have a unit there i can't call up and say i want comic con i can't kick those people out there registered gas they get first that's what do you amaze what happens if you get to december first and you haven't used it yet can you get december because you have a guarantee for twenty days if it isn't already rented if it's already rented you don't get it period that's what the un may sets where does the m i say that i'm sorry i don't have that reference this was i'm sorry i do not have th but that's not really unusual is it guys low even putting aside this it's a regular house if you are the run of the place you can't go back in yourself the fact that they can't release a person cannot use a unit that's already been released is just not the guest the hotel has all keys housekeeping furnishing linens telephone cable devil television mini bar rentals and other items were under the exclusive control of the hotel and did you make that argument they're saying you never talked about has keeping that is not true your honor it was it was made throughout all of the pleadings throughout all of that i don't know whether it was made in oral argument but it certainly was made during all of the pleadings that's been front and