good morning your honour's i'm lewis miller i represent rod stewart and related parties with me this morning is my partner carrie garbus right i want to make a comment before i turn to the contracts and get down to it my burden is to show that these contests this contract is reasonably susceptible to more than one interpretation and there are tribal issues of fact i stand here today having looked at the contract myself magistrate judges looked at the contract opposing counsel looked at the contract and the district court judge just looked at the contract and there are three different interpretations that the parties have come up with in writing the magistrate judge and i see this  a force mature situation mr stewart had a singer he came down with those diagnosed with thyroid cancer he had to have throat surgery therefore paragraph v seventeen which is incorporated by reference into the amendment explicitly applies so two of the so at that way posing counsel in moving for summary judgment looked at eighteen in the contract instead that's the that's the clause that applies to it was based on a governmental and i trust decision and in that case a research them extensively in the courts also it depends on the language of the clause and the intent of the parties and they can be fraught or they can be very narrow and it just particular case they drafted the clause very broadly they said if any party's obligations are rendered impossible by then they go through the various flood fire riots acts of god the magistrate thought thyroid cancer was an act of god by the way she put that in her opinion that's an interesting one and then it goes on to say or any other cause beyond such parties reasonable control i think arguably it's just got to be a reasonable interpretation dollar price for the millennium it has to apply to the millennium concert because there was no second pastor agreed to until about six days later and six days after the millennium concert occurred that's when the amendment got signed where you know  that based soley on the amendment the january sixth amendment paragraph to which says in the event that the two thousand and the second concert is not performed on december thirtieth two thousand and seven each subject to an extension is provided below all the funds paid or held in trust would be returned i think the district court's interpretation i think is wrong because it totally disregards that basically a district court judge said that the only way four below he doesn't go to paragraph five below which is the reference back to the first contract into the force majeure and that's that's my position that it's totally reasonable i'm certainly going to do some additional research if i'm  fortunate enough to get back to the district court and but it's it is a reasonable interpretation and the language of the seventeen the state applies in the case of of fire like cancer for a singer who had to have throat surgery now it's interesting because i page three fifty four the record of course the real does not want expect nor will it except performance from mr stewart when he is not one hundred percent physically so i think the record supports the circumstances the factual statement circumstances of this case falling under the seventeen and that that in a nutshell is our position i mean i could go on and i don't think it's terribly complicated if you i don't think it is either i think that's what it all comes down to and i think it has to go back to the  my client paid two million dollars the full contract and then returned mr stewart promised to appear and to perform a concert on december thirtieth two thousand he did not on november ninth two thousand his representative wrote my client a letter and said not that he has five like cancer not that it's impossible for him to appear but rather invoke the force majeure clause here and there is no evidence at all as an illness that would make it impossible for him to appear assuming for the sake of argument that illness indeed wrote that in the event of illness the payment comes back words in a contract are used the same way throughout the contract implicit in the succeeding more specific address is that review and two because of the way in which the contract was the contract history and the wording of the contract the clause with respect to that that's governing here is paragraph two of the amendment which  unmistakable terms that if this concert doesn't go forward on december thirtieth two thousand subject to exception as stated below the money comes back to real mind you we were just making a deposit we were paying the full contact us now general california law and we cite the california statute fourteen ninety says if you and i make a an agreement and you're going to do something on a specific date and you promise me that performance and you don't perform you have to give me my performance back in this case my two million that i prepaid was that you know this great important exception that you got a better deal and then you said that's the only one and then you said and that's why seventeen doesn't apply and then you say oh except that seventeen applie and now seventeen apply but doesn't apply because of eighteen either even that meant either referring to the whole rest of the contract or whatever it is or the amendment doesn't refer to that whole giant contract which has which has all the opera back if it doesn't subject to exception is taken below you he wants to read below to go back into the main contract i say fine i agree with that and you go back into the main contract the problem he has when he goes back into the main one of them said rod stewart had cancer and could not it was impossible within the meaning of force majeure or it was impossible for him to perform drawn they say he was diagnosed with thyroid cancer they give that and it's a classic or situation your this court case and or they want to argue based on evidence that doesn't legitim reschedule and that's his whole point of his opposition was that he had discretion to call in sick and reschedule and that that was the contractual president that was the norm and mr stewart's contract  teen being the exception to the norm the problem he's gone that the law doesn't let you just keep money and reschedule when you have a date certain this conscionable in in the right we couldn't demand rescheduling we could ask whether or not it could be renegotiated i think there's a distinction there certainly he could have asked for it and if we'd agreed to it we wouldn't have been here both sides could ask whether or not something can be changed but if they by their conduct are green that it must be agreed to change their affirming that the contract doesn't permit it unilaterally and that's what occurred here  and i'm it's very significant that the way in which they presented their illness claim was similar to me calling in sick for first school i call in second i say in my discretion i'm set i can't be there under no summary judgment he had to bring out proof he has discretionary i call in sick i get the cancel that he said in his negotiation history was normally on a rod stewart contract that he gets to keep the mon and reschedule he said that's his standard contractual president he didn't put that in the contract he didn't put it in and yet when he wanted to reschedule he acted as if that were in the contract it's not in the letter then he wrote th and it is the reasoned judgment of his medical and other advisors that it would be premature for mr stewart to attempt a full concert appearance on december thirtieth date scheduled for the concert pursuant to the agreement between the parties mr stewart is excused from performing on the subject day that's what they wrote language there's only one paragraph and his lawyers affidavit that they offer is proof of his supposing fourteen is there a problem there with me for just one moment earlier in two thousand although there had been hope for a full recovery by december two thousand it was the zero pinioned of rod stewart and his physicians that he was not capable of performing a full concert such as the second concert the twelve thirty zero zero concert which was scheduled to be ninety minutes and direction that identical paragraph and i'm reading from page two eleven medical condition made it impossible in the global force majeure sense that's nonsense the d d the parties negotiated realize that if i'm going to pay you guaranteed compensation this isn't a down payment it's guaranteed compensation under paragraph eighty two of the agreement if i'm going to pay you the whole contract price up front paragraph eighty two and it sounds to me like you're talking about the millennium concert but it also the concert for twelve thirty one ninety nine when the contract gets amended and it's best to manage coincidence that amendment paragraph two and if i misspoke i apologize i'm not trying to mislead anyone here that amendment paragraph two refer second contract apologized that got carried forward the guaranteed compensation described in paragraph eight to is the guaranteed compensation in paragraph one of the amendment it's the same thing it's guaranteed compensation a term of art under the agreement and i submit that if you look at paragraph da eighteen their argument that the reference to a two somehow means only the millennium otherwise he could call and second get out they had to put that clause in because the law says if you don't have that clause then you're outta luck california civil code fourteen ninety counts you out you agree to appear and saying on a date you visit reasonably susceptible that us cellular cases nonpoint here judge checks found they offered no evidence of some patients to defeat summary judgment that's what he found that's what his orders says and that is in fact what this record shows there's persuasive and elegant argumentation by them but argument is not a substitute for evidence there is no evidence  after to accommodate that and frankly it broke down on mr stewart side not on my client side if we're going to get into it i never say no to a settlement proposal but i i do think that what he just did of what we're getting in this record which is there is so much unsubstantiated improper argument here that goes beyond what are the rules we play according to the rules of civil procedure and they say affidavits are evidence they have to be first hand knowledge they have to be competent it's fun to talk about force majeure are they didn't put up any evidence that would be sufficient to trigger it arguably and furthermore that force majeure clause  nothing about illness d eighteen addresses illness and in the event of illness call and say he has to give back the guaranteed compensation which is what paragraph eight two covers thank you i don't i judge reinhart i consulted with my partner and she said in our research earlier we did find some law from new york based on the particular clause in the force majeure clause in their case they did apply force majeure to illness be happy to they were talking in september and october about rescheduling the concert he was talking to mr fishman and they were he thought they had reached agreement and fishman was on his way to from las vegas to los angeles to actually firm up declaration paragraph twenty four he says he advised mr fishman of rod stewart's manal in a medical part mean medical inability to perform and told him about the throat surgery and he's a singer and he's got to get his vocal chords tuned up and back in action and he can not by that not by the take so there is evidence it wasn't litigated below but there is evidence in the record and it will be litigated and there's never been any issue about the thyroid cancer or the throat surgery it was acknowledge in the letter that i cited a little while ago i think it was a page three fifty four it was acknowledged by real when they said we know and we don't want to perform if he's not up to it and he wants rod stewart if he can't sing properly so that was a problem around that time sorry they couldn't they were really worried about the millennium and then i guess they became worried about it the following year and they wanted to reschedule we even offered to reschedule at the beginning of this tour in the fall in the spring of the following year and should you be able to show it with evidence but it doesn't really matter whether it's things well or not whether they want to them or not i agree i agree let me the last comments i have is what was litigated below was whether  seventeen applied or d h you know play that's exactly right and then the the district judge looked at the contract differently but the reason i bring that up is in the argument it's in the record in the  transcript of the argument before the magistrate miss pickering's partner steve morris acknowledged that the eighteen couldn't apply because the millennium concert had already been performed so a clause that applies to a concert that has already occurred cannot have any applicability i think that's binding i think that's a in the stoppel and an admission against counsel to take a different position now thank you very much thank you both very much