now counsel as you're approaching there are a whole lot of issues raised in these briefs all right we have the time on the clock we're not going to go over in this case i want to make sure counsel focus on the issues that they really believe are the most important issues in the case ok because again there are lots and lots of issues stick to the ones you think are most crucial and stick to the clock and with that i do see i just want to make sure frogging purposes  different people are going to adjust the just the one but you very well thank  you may please the court again john wallace just for john bercow there is also another appellant michigan attorney joseph odisha we do not represent him the and i if i may reserve time for both suffered as well as the pro and non attorneys offered as well as order shown that the judgment cannot stand should not stand as to borgo first of all foreboded the court concluded the court may assume that the undisputed material facts as claimed and adequately supported by defendants are admitted to exist without controversy without know that that's because the court indicated odisha did not file an opposition to defend statement of on controvert facts or bow filed such a statement so when one considers the inference here the court overlooked for both filing and we're dealing with the due process right to be heard issue one file something it's not considered it's not mentioned in the decision defendant's come back and say yes but the court mentioned there was some points from or bo filing that the court referred referenced but those were undisputed items we're both contested some very basic issues in this question of risk in this basic issue of rescission and that is the delay by the defendant the prejudiced to turbo and also the ratification of for pows interest after defendants were an inquiry notice after defendant had actual  my argument is that facts were controversial and those are examples name examples but but but facts pertaining to waiver ratification that that's what you're talking about this context is acting as counsel for cognitive those facts aren't disputed we're trying to focus on what it is that's disputed and what issues that pertains to so for example i hear you talking about the examples you've offered have to do with the waiver and ratification argument that is that if there was a point in time at which the client knew the facts it needed to know to be able to resend and you argue that they didn't do what they needed to do to exercise the power of rescission but before that in point in time are there facts that were disputed were told if there are if if something is to be returned to the district court we wanted to find as precisely as we can what it is that so open the contest oh dish on the record said i disclose these things i just didn't do it in writing and he contends michigan doesn't require writing california does so the question really is how severe is this as undue influence as to orders so even that is contested because order says and i think on summary judgment since it's credi when you are required to be in writing and it wasn't in writing right the question is the whether it was in writing is not contested or the court could say as a matter of law california law applies it's not writing end of story so so that's what i'm trying to focus on and you can contest that legal proposition but i'm trying to fix precisely what it is is contested factually as to that issue i wouldn't say end of story i'd say correct technical violation not necessarily  not necessarily fatal to any claim but yes a technical violation as opposed to he didn't disclose he says he disclosed that's all i'm saying but back to the main point which is yes we controverted some very basic issues that and and our facts our evidence when we're not considered they're not mentioned in the decision and they're really young material to the decision and they should've caused the decision to go the other way we have a delay of a year at least under anyone's calculation the court's defendants the court basically said well so what in an affirmative defense even a time barred claim can be asserted not quite correct a time board claim when you're dealing with money and set off time prejudice in addition you can't get rescission even if you're within the statute of limitations so collapsing this promptness requirement into the statute and saying whenever someone is timely under the statute you can get just strictly decide things as a matter of law it weighed evidence and we gave you specific quotations as examples but with respect to the the issues of waiver and severance and ratification they're kind of intertwined because factually they're intertwined what we have is after the basis for a decision came out after new counsel was hired or bows fill his compensation still confirmed he was an equity owner they were fir to him as a shareholder they referred to the five percent because the original ten percent to be split between these two for bowen odors and the whole concept is whenever or yes but if the defendants come back and say oh dish out you know or dishes out but proposed continues to do work he continues to perform as they asked him to perform should how should he not believe that he continues to have an interest here he continues to expect compensation he's working and instead the result is he did all this work under a reasonable expectation and then the rug pulled out from under him because odisha did something that both couldn't control so odisha is performing services as orders both didn't purport to control him to supervise and to do anything with respect to these very several things legal services business consulting and if after the fact particularly during the fact during the services and afterwards when new counsels hired the position is yes you have an equity interest it's just not reasonable to come in after the fact and claim that proposed position is so tainted now tainted in just conclusory areal yes a conclusion just throw that word in or both claim is tainted by oldish so if i can frame what i think is your best argument here is the idea that certain information about bobo's practices came to light and that the opposing side knew about it yet didn't take action at that point and they let verbal continue to perform the duties he was performing correct yes and that there's a factual dispute over that issue correct frankly i think it's undisputed in terms of this summary judgment why even i'm sure our position i understand i'm sure they have a different version of a lot what i'm trying to i'm trying to crystallize here is that it seems to me that there are that that the big dispute the real live dispute in this case is that they knew information detrimental about b and that your version of the facts is that they then didn't take action on that and they allowed to continue doing his work for the company correct that yes and that you're trying to argue this court at the district court in throwing out the case a summary judgment erred speed there's their version of the facts and there's your version of the facts and your argument today is that a jury should decide whose version of the facts as to this issue is correct right these issues yes for the and specifically i think the one we've been asking about is on the waiver rescission the whole idea that yes bobo may have done some things that were not proper or at least that's what they believe but they knew about and they didn't they didn't step up immediately and say you're out of here right correct and that's why they ok i just want to get you only have a few minutes left you said you want to reserve some time you want to reserve your time that's right our thank you my name is howard fred men i represent the police i would like to jump first to the issue that your your honor has focused on the issue of waiver and of  and there there the the issue was specifically prettification and the court basically says you don't have read if occasion unless the party  advisedly with full knowledge of rights and that's an important point here we're really not talking about facts we're talking about knowledge of rights we're talking about a mixed a mixed issue of law in the of the issue i looked at it and i pull that out yesterday they were the evidence is that mr leslie spring anon lawyer who was the technology person who invented the artificial intelligence algorithms and who patented that that he anon lawyer did research on his own did his google research and the question really appears in the record at or five ninety eight to five ninety nine and the question was so you did your research and you then came to the understanding that the a den dem that you had signed with or on behalf of the company that it wasn't valid because odisha had violated his ethical obligations is that correct and the response no i came to an understanding that that was a possibility i didn't i'm not an attorney so you know i didn't know whether that was the case or not as a lay person it was just something that i thought might be the case where he has if every rule operates these on facts and being put on notice he acknowledges wasn't sure that was a result but i know the facts i know that's a possibility isn't the responsibility at that point on him to consult with the new counsel that he had to find out what he could do as opposed to wait for a long time before and taking any action first of all your honor we're not talking about facts perceval we're talking about someone doing some google research and we don't know if he was doing the research because he knew that the certain facts that's what triggered he believed it was unfair and the heart of this case really is were these agreements that were entered into it on which mr bouck seeks to rely fair and reasonable to the client and we submit we argued a number of points but the district court relied on three things which now propose seeking to take advantage of one is under a little bull stock in other words if the company were to go out to a third party and get additional financing it should come out of somebody else it should come out of the founders the people who developed the technology and who supported the company with the obvious there was one i didn't hear a whole lot about under a little stock in the preceding fifteen minutes when i heard about waiver and and i need to hear from you do something that speaks to that the argument being made is that your client had knowledge of what he needed to know to rescind and didn't prompt notice of rescission didn't give any notice rescission for an extended period of time and by his continued conduct after that waived or ratified some agreement with mr b doesn't answer that question what does answer that question for your honor first of all i would dispute that we're talking about recision what we're really talking about is void ability of contra i'll take your language over same issue i would say that the defense is what we're really talking about ford ability is an affirmative defense so what mr bo is talking about is an affirmative defense to an affirmative defense that you're barred from making that  last may well he is claiming that cognitive code in the cognitive co defendants cannot rely on the void ability because they waited too long to raise it and what i'm saying what i think the fergus case says you have to know you have to be fully advised about your rights and there is no requirement of diligence there's no writ and that's let me not generally the case in the last sound if you're going to say there's no requirement of diligence you're going to have to do some persuading a man least ok the first point i would make is you really have to look at the burden of proof because yes it was summary judgment but this is a unique form of summary judgment i understand anderson versus the liberty lobby you have to look through the perspective of the burden of proof that's applicable and you have to look at the standard of proof the standard is clear and convincing evidence that's under the substantive law and what the district court has to determine is whether clear and convincing efford evidence has been presented to justify to justify an award in favor of the plaintiff and because there's a reversal of the burden of proof and because it's a clear  judgment he's arguing that i have the rights under the original stock purchase agreements those might be voidable because of mr odisha is failures he can contest that but for the moment to get past that there comes a point in time when your client becomes aware of mr odisha as failures after that point in time your client continues to call upon mr br provide business consulting services without saying anything about the fact that by the way we don't think you're a shareholder and we're not proposing to pay you for this but we're going to have you give contributors services anyway now that's the case that's being made i don't say that it's factually correct but that's the case has been made and there has been a factual presentation to offer at least some support for that why does that open the door to summary judgment in your client's favor  that argument where your honor he had to come in with compelling evidence that in fact there was a waiver and a stoppel or a ratification and all he came in was with deposition testimony that the the technology officer for the company the person who persuaded it did some google research and saw that there was an issue in this market and the use the scribed earlier well you're referring to mr spring when you said this was something unfair had happened with regard to mister his representations are you saying that something more is apply them to this case well the the law of the law of california is it's an inherent element of ratification and i would say of waiver as well if the party could be charged with it must have fully known what he was doing the very essence either of an election or ratification is that it is done advisedly with full knowledge of the party's rights no evidence was presented that respondent express boat to contribute services even though he at that point had reason to at least think it was unfair that mr pro be a shareholder well what it one of the problems with this area is it takes a deep dive into the law to really understand a the issue of board ability what are the elements of void ability because they're both procedural and substantive elements b to what extent does it affect the business partner and the client was not advised he did not have any counsel at all other than mr o dish until the following january and you're talking about  and you're not talking about anything said here he was offering up a picture of the scenario i offered up the simming the facts for which there is some evidence it may not be compelling but assume that in fact your client having years have been voided after the fact even though they were profitable like a game of gotcha if in fact you can know what you need to know and not act upon it for a period of time fully advised as to rights is different than believing something is unfair and there are some google law that says that maybe i can do something about it and that's the difference we're talking about isn't the discovery rule that ordinarily operates under california law with regard to determining when the limitations period runs for example doesn't that put responsibility on the person who has suspicions to do something as opposed to leaving blinders on and taking advantage of another part of the transaction which is the factual scenario offered  doesn't matter and i'm not so sure well i understand your honour's and just i mean fergus is one case i'm not sure i read it in the same way that you do there are lots of other cases about the discovery rule and why should we look to those your honor when we're dealing with the issue avoid ability when we're dealing with the inherent unfairness and unreasonableness of the contract i think i think you're that color so what's fair about treating mr barbeau in the way he said he was treated which is with your client having suspicion they continue to call upon him for services knowing that eventually they might take the position just might but might take the position he doesn't have any interest and yet still call upon him and that's fair well again we say that certainly mr pore bo had notice of the unfairness of the contracts that he was relying on certainly those contracts favored him as well as otis and certainly all the rights that mr bo is claiming  are subject to the same void ability to finance and beyond that i would say there has to be one burden of proof that applies to those contracts to avoid ability of those contracts and that burden of proof is to establish that they're fair and reasonable and that the client was fully advised when they were entered into that's an issue of law clear fair and reasonable and that was  my question you're not denying it wasn't fair i'm a question i posed to you was it fair for your client to do that and you haven't answered that question you're trying to say well the other guys unfair to so t time to avoid it yes i would agree with you that that's unfair ok take a has a fact knowing that in fact that if they looked into the to the situation they might reach that conclusion your client acknowledges suspicion suspicion imposes some duty to figure out what you're going to do it doesn't suggest you can sit on it for over a year i would differ your honor i would say that the law requires border then suspicion more than inquiry notice it requires to sensually full advisement of your rights and that is the law in california on this precise issue and that the only thing preventing your client from consulting with counsel to obtain that form advisement well the problem was it was one of money they had lawyers that had not been paid in fact that's why they went to otis and that's why they asked voters not to go back to the lawyers who had originally incorporate of the company they said we owe them money we don't have the money to pay for a lawyer thank you very much triggers further inquiry notice can't be put in your back pocket if ignored especially if you continue to do business especially if there is some further consideration some further activity very difference with regard to how they how that should be viewed with regard to bear both i mean what did what did spring and the other people a cognitive know to put them on notice that the contract was  oh i think they overlap and let me let me just point out a couple of facts because we're focused on one piece of evidence cited by mr frank count however there are a number the c googled he told his wife his co founder his wife went to advisers all of this is what we're labeling inquiry notice you visors we're not lawyers right and not only do we have inquiry notice but we have continued course of conduct it's one thing to in the abstract say inquiry notice triggers a duty to look further it's another if you continue to do business that you don't look further or even if you do look further and you continue to do business and later pull out this rug from it's particularly unfair so so well established inquiry notice can't be ignored you've got a pretty you have to it is when that happens plus we cite the actual knowledge as to o s they certainly had the opportunity to go to council and say well what about verbose portion of the contract or propose involved is that legal and if one could cite to that the fair case for instance which the council cited after doing some basic research but that wasn't done apparently so it was just ignored and so why should per boe suffer from that decision to ignore the inquiry notice the person who does the ignoring of that inquiry notice should bear the risk of the consequences for ignoring that inquiry notice here as of remedy available for the for the court the court can say ok this provision is tainted this provision is not tainted with throwing this one out we're keeping the other one and