i like to preserve two minutes please benjamin nix for precise and roxanne abdi this morning i'd like to focus on two points of there from the trial court st the motion to dismiss that was granted on the rock claim  the court's grant of summary judgment on the contract and fraud claims the motion is mis the unruh act claim was aired by the court for several reasons st the court improperly concluded that there was only one statement that showed discriminatory motive by bill leonard the manager at magh aerospace in fact a review of the original complaint shows that there were other actual affirmative representations of his conduct towards mr abd beyond the statement you need to put your balls on the table and take a risk in addition to that comment there was statements of offensive offensive conduct regarding further harassment and bullying telephone calls to miss abdi after the balls on the table comment he also engaged in subjective or excuse me offensive a sexist and massage misconduct with regard to other employees finally in the original complaint we alleged that on information and belief leonard had a history of engaging in sexual harassment and misconduct with regard to women at magh taken together all of those facts demonstrate a discriminatory motive on behalf of leonard in terms of not doing business refusing to do business with precise aerospace with regard to the comment put your balls on the table the trial court also made a major error in terms of drawing an inference of that statement in favor of mag on the motion to dismiss the court was required to look at that in favor of the nonmoving party but instead the court concluded that that statement put your balls on the table and take risks can be inferred to be an invitation to do business with i would submit it's also a reasonable inference based on that offensive comment that it was showing a lack of respect and disdain for the person he was talking to a female so it's further supports a discriminatory animus finally the co erred on the motion to dismiss by not permitting an amendment in the opposition to motion dismiss we request of the amendment and the court denied that request in its order and said an amendment would be futile the court's rationale  allegations that are are not not consistent and and proceed on each theory until the information is developed at trial the other thing a the other error about the trial court's determination is discriminatory motiv under the under act doesn't have to be the sole causal factor for the loss of the business it just has to be a substantial factor so under all of those facts the trial court denial of the men was improper the trial court also improperly denied a motion to amend which we brought after the riddle dismissal of the unruh our claim that amendment put forth additional factual allegations which is assuming the the victim of the discriminatory conduct and as such precise as independent standing under the under act to seek damages for the losses the osborne case which we cite supports this is so ca sion standing intended to make precise the sole source manufactor so how is that consistent with an assertion that it was gender based discrimination well it as i said your honor you're allowed to make allegations at the pleading stage that are not consistent so it was an alternative theory that precise believed and that's the way it's praise precise believe that mag did not intend to perform its promises when it entered into the agreement in two thousand and twelve or two thousand and thirteen but it wasn't it's not established and it's an alternative theory upon which you pursue your claims independent of the enron claim the other fact that it's important however is after the original promises were made that were and on information and belief fraudulent it was an additional set of promises and march of two thousand and fourteen following that in two thousand and fifteen that's when mr leonard was  the manager of the account the precise mag account and then the discriminatory conduct took place and then the business was taken away soon after those those statements were made in june of two thousand and fifteen by size  last that is the place for me that i'm talking about the the balls on the table comment and then the following up harassing and billing telephone calls those are in june of two thousand and fifteen following that then business did go away they took away a substantial amount of of machining they also took away orders and they started sending the they the projects over to another plastic injection boulder stand and that's countries with that as a result  separate that was much later so well before then the the defendants in the underlying cases started to breach the promises that were made the original contractual promises and it's our position that that was a result of the discriminatory conduct towards miss abbey when she objected to that well we did address that your honor this is specially manufactured goods there's no question about that everybody agrees these are especially on the facts you can clarify for me when you're talking about the specially manufactured  exception in the statute of frauds how many us how many contracts how many oral contracts were you alleging were here is it one oral contract is it two is it three i had some difficulty gleaning that from your briefing your arguments and your complaint yeah it was it two basic promises your honor two basic contract so there was a set of negotiations or discussions and promises made in late two thousand and twelve early two thousand and thirteen and then what happened was mag took away they promised five million dollars worth of business they took away two million dollars worth of business and what was the nd com then the nd contract comes after precise complains about that and then in march of two thousand and fourteen there was a promise of continuing to do three million dollars worth of business for the next ten to twelve years is there anything in any of the complaints you filed that actually sort  thirteen there's five or six aliments and then we have alleged how that was reiterated by mike neves the purchasing manager in march of two thousand and fourteen i think he said march two thousand and thirteen now from march of two thousand more going to that's the nd proces so yes we do allege that the specific terms of both of those contracts are so dealing with especially manufactured goods exception there's basically two parts to it if you have a substantial beginning of your performance or you have commitments for  then you fall within that exception here of the trial court only address the st one substantial beginning and it made a ruling that was directly inconsistent with the statute the trial court says that precise was performant was not a find that and get that for you that's the reference in the in the for the performance and i apologize deposition but i was asking about where in the complaint you made those precise allegations regarding the con and i will get that for her ok so back to the substantial beginning the proud court basically reads into the statute an exception that if you are doing the substantial beginning presented to purchase orders then you cannot avail yourself of that exception however the vision tech case is is a well reasoned and held that if you are performing pursue the purchase orders that is sufficient to fall within the applies where they manufacture such as precise purchases equipment materials or other things to to perform the contract here precise did to thank the allocated the bulk of its production facilities for this and thirteen letter as i write yes your honor so does not take both contracts out of the statute of frauds or just one of them and if it's just won is there any place you actually tell us that this is the one that this is this is dated december th grade two thousand and thirteen yes so it would take the st contract out of the statute of frauds because this has to do with the revolution toilet project which was part of the original five million dollar of business that was promised to mack just resides by meg and then was taken away so that confirms the revolution toilette portion of the original contract and it is it is infinite invitation to a meeting but it congratulates precise on being awarded the project the district court improperly read the letter in favor of the mag and discounted the interpretation in civil code two to a one subpart one in these in the area of sale of goods you actually don't have to have the terms and conditions you just have to have some writing confirming any the agreement well even even if we were to agree with you the district court interpreted this in the light most favorable to the moving party what can we take from this writing as to anything about the nature of the contract were even what part of the contract you've been selected for even if even if we agree that this this is actually welcoming you to the team because there is something i mean this is exceedingly general and went to a whole bunch of partners well but it went specifically to precise by e mail by the purchasing manager and that information was presented to the trial court in summary judgment are over four to six and it says you considered as a key partner for the sex of the new product the new product is the revolution toilet project which is part of the original promise of the five million dollars of business per year so it confirms a major component of the discussions that were had between magen precise were confirmed in at least in part by this letter the council i'm looking at your st a minute complaining when you come that i'll give you a minute for a bottle so hit the nd cause of the action that talks about late two thousand and twelve and early two thousand that were raised by palin's counsel and his argument and hope they respond to the court's questions as well so starting with the unruh act the plaintiffs pleated factual allegation to support that claim is the allegation about the clear balls on the table statement and you heard his counsel tell you that well there were allegations that after that statement was made there were as he described it further harassing and bullying phone calls that's the those are conclusions that's a conclusory allegation that's not sufficient under  complaint cannot contain allegations that are inconsistent with your original pleading so although you can plead alternative theories for example you can plead in your complaint a set of facts and then your cause of action can be there was a breach of contract but if it wasn't enforceable for some reason then we've got an unjust enrichment theory so alternative legal theories based on the same set of facts in your original complaint the ready case says and again and plaintiffs acknowledged it that when you're looking for at leave to amend you have to be consistent with your original pleading so they could know and this is not a simple collateral thing this is like wanting to allege that the traffic light was red but you know if you don't like that you're on the traffic light was green this is not a collateral allegation they none of the additional backup so they could not planets could not have the amended their complaint to state a claim without contradicting their fundamental bedrock allegation because it has to be the discrimination has to be a substantial motivating factor now perhaps in theory they could have come up with allegations to show some kind of causal link that would have been an additional substantial motivating factor that word substantial is important or substantial motivating reason for the eventual termination but they didn't they didn't do that they never did that at most what they were proposing to allege was sort of the sexism in the air that maybe mr leonard was a sexist guy but they never linked to that to any kind of any kind of actual causal link to the termination and in fact they couldn't because their own allegations make clear that meg continued to purchase parts from precise for two years after mr leonard became the vice president of procurement and remember their complaint says it was only after mr leonard became vice president  and fifteen that sexism and misogyny crept into the dealings well after mr leonard became the vice president procurement as they say themselves they continued to purchase for another two years and in fact another eighteen months even after the alleged june fifteen june th state two thousand and fifteen statement in addition to that at the time plan of sought to file that nd amended complaint they had in their possession documents that ha so none that none of the allegations that they proposed to include either in their opposition to the motion to dismiss or in their proposed nd to magic complaint establish a causal connection between the alleged massage me and the terminations there's has to be a substantial motivating reason there was no evidence of that judge clowes owners interpretation of the specially manufactures goods provision and in particular what it what is required to meet that and what to substantially getting is is absolutely in line with how other courts and commentators substantial beginning requirement have construed it narrowly consistent with the purpose of the exception which is to prevent sellers from being saddled with custom goods they cannot sell yeah but but the statute talks about specifically substantial beginning of their manufacture or commitments for their procurement stuff the legislature could have passed a different statute and the trial judges policy arguments might well be correct this policy arguments but it seems statute other than the one the legislature i don't i don't think that's true and i think actually his interpretation is entirely consistent with the plain language of the statute in a couple different ways one is it's important to know that this exception is expressly limited to situations where the specially manufactured goods are not suitable for sale to others in the ordinary course of the seller's business that language that language supports its demonstrates the statue on its face is concerned with the situation with the seller is going to end up stuck with custom goods that he can't resell except it has specific language that allows it to be asserted or you've made his commitments even if you don't have the goods i will agree with that your honor but i also think it's important to look at what the actual language of that piece is as well because what the language is is commitments for the tain possession of so commitments to procure in compass is if you as the as the seller have to go out and procure from some rd party the specially manufactured goods that the buyer will then  get like a middleman and in fact that would be the distributor or case with the shower doors in the mirrors that was example of that case the the seller in the distributor case had to buy the special cut mirrors from a rd party that would a commitment for procuring those specially manufactured goods division tech case similarly the plaintive had to make commitments to procure specially manned manufactured components that then went into the goods that it processed it put together for the defendant none of those cases or anything like what is being claimed here which is because we went out and bought machinery just you know standardized capital equipment expenditure it's not specialized machinery it's standard injection molding machinery you know showing it can't be used to make just about any parts it's not designed or specialized for our by the record i think it's absolutely supported by the record that that the case law is clear that just going out and buying machinery you could say thing i invent i bought this warehouse that's not that's not what these specially manufactured good language that way and it would really undermine the whole point of the statute of frauds the the point of the statute of frauds and this is in the commentaries and in the cases is if they if they if he seller has actually undertaken and manufacture these goods that it can't sell to anybody else and again that's important thing it has to be you can't resell these goods that's an important element if they've actually done that that is good evidence that they must have had some kind of a commitment for the for the purchase of those goods and in addition even in those cases the courts have almost uniformly limited the the recovery to the goods that were actually manufactured and so you have you know cases like the upright vs i b m court case where the court said yes your actual manufacture seven thousand specially made machine parts as part of an allegedly oral contract for fifty thousand machine parts did not constitute substantial beginning sufficient to make the legit or contract for the whole fifty thousand and forcible so well in force the seven thousand you'll get paid for that but otherwise you you could say well i manufactured seven thousand so that takes the revolution toilet project out of the center for us nothing else but i think the reasons are exactly what what you said your honor it is an extremely generic letter as you pointed out it doesn't even identify what part of the project we're talking about it goes to suppliers a variety of different kinds of suppliers of different potential parts of the project so it doesn't even identify you know injection molding as opposed to judge sentencing want this line you are today considered as a key part been picked as a partner but that we're just looking at you as a clerk wasn't the judge interpret in this in the light most favorable to you i don't i don't believe we're going to because i really don't think there's any other reasonable interpretation of that we're talking about we're looking at you as partners to help us develop this this toilet to help us design it to help us find the best way to manufacture it does it give the people being invited a potential inside track on getting to the job of course it generic and it went to a variety of vendors so did they have promises that it was confirming as well i mean doesn't it doesn't make sense to take this generic letter that went to a where in the complaint can we find the allegations for late two thousand and twelve early two thousand and thirteen when your client was promised that one million and then in march th teen promise three million was sent in late two thousand and thirteen it confirms the promises those promises then are except for the revolution toilette reiterated in the march two thousand and fourteen meeting so the reason why it's supportive of a an agreement is it's a consistency there there's an original promise made in late two thousand and twelve early two thousand and thirteen and reiterated reiterated in march two thousand and fourteen your honor the counsel mention th all this information about business allegedly increased after the discriminatory conduct by mr leonard that's well beyond the appropriate analysis for a motion to dismiss and we would dispute that in terms of what happened after the discriminatory condo with regard to the commitments for pure term and i just like to point out counsel statement that this was standard machinery and could be used anywhere is contradicted by the record mag was aware that precise was purchasing this material and this material was these were quick minutes were not something they used for any other customer they bought them specifically for the mag account