briefing and the record in this matter is not very extensive because the case and it very quickly and i'll get right to the point that kate the case kind of boils down to two two issues and the first issue why two different periods of time yes and i've been explained that the the lease has two different dates which is your position that the decision on whether the whether there was a waiver of the right arbitrate and so was going on here because the district disagreed that it had to do it but there was a waiver well the issue of whether the district courts could decide waiver or not there was no argument or evidence presented they should not decide that issue in the first place because the church did not make that argument the district court didn't make the decision as to whether there was or was not a waiver but what now wait a minute i don't i don't think the district court decided the issue that judge base is speaking of the district court said it's unclear how the issue of whether a previous state court judgment has preclude a fact and whether it could itself be subject to arbitration i don't think the district judge said the parties can't  arbitrator can't take on the issue of waiver that's your second issue which i think you're going to speak to but the question here for me i  don't i don't agree that the district court mandated that the arbitrator not look into waiver i think the the real question is where federal law comes down in terms of whether or not the two thousand and two arbitration is going to govern she's me the two thousand and two litigation in the churches pursuit of it in an in instead of arbitrating is going to govern whether or not this seventeen issue gets arbitrator put go right ahead yes so so there's two to compete even issues here one of us it is our position that the church waived its right to  arbitrate the second run adjustment based upon all of its conduct and actions in the first action and i could understand an argument let's let's say there's a lease and you allege that you know you breached some notice provision of a lease and then you litigate that case and then ten or fifteen years later we have a a an issue where you argue rent wasn't paid on time i could see an argument there that there would be no waiver because the issues were different in our case we have the exact same issue the exact same parties and it's been previously litigated and not just previously litigated in court it went to a lawsuit a counterclaim  first appeal to the california court of appeal a trial and then the second appeal the church not only initiated with their with their cross complain but litigated those cases extensively with discovery experts everything and so in a case where you have the parties litigating the exact same issue fifteen years earlier and then now fifteen years later they want to arbitrate those issues when they litigated them to the nth degree the first set but it's not is that i mean ok if if if the church litigated the two thousand and seventeen terms in any way shape or form and then tried to rely on a arbitration provision that would clearly be precluded i believe but i don't think you can give precludes of effect to a two thousand and two litigation because the economy's changed rent prices of change all these types of things yes your honor i do understand the fact that numbers and the economy and there are changes in the market but as we alleged in our declaratory relief the issues are the proper scope on how to evaluate and measure the rent adjustment based upon the terms of the lease the methodology to be used and the fact that we believe they waive those rights but we've little by litigating those issues before we've litigated the methodology how how to implement the the lease provision regarding how the rent should be adjusted that is all been decided  arbitration which obviously you have to act inconsistent with that existing right and you would you saying is that having taken a position in two thousand and two taking a different one in two thousand and seventeen i inconsistent i guess they litigated those issues completely in two thousand and two there are no good again of the issue as to methodology right but is it inconsistent to take a position on the right of shawn fell schoenfeld against blue cross that was a situation where a blue cross reimbursement they filed a lawsuit to seek reimbursement for what monies paid they lost the then that  and a court of appeal said no you waive that because you were involved in prior litigation on actions that were either derivative or similar to what you what what is being addressed now how is your client prejudice by being compelled to go to arbitration when you can raise that precludes if in fact at their earlier state proceedings and the arbiter can decide what extent they in fact are clear issues  judgment yes your honor with respect to prejudice you have to you have to actually go back to the district court's ruling because the district court determined that while the methodology and the rental determination would go to arbitration that the issue of issue clue was not subject to arbitration and that's why we have our inconsistency and then the district court dismissed the case even though the court determined that part of the action was not subject to arbitration and so going to the issue of prejudice the prejudices which is which once you initiate the litigation process which was which occurred years and years ago on these exact same issues the prejudice is those issues have been decided and they're trying to  litigate them again and that is then actually there are those cases which refers as a presumed prejudice having to relive again issues that have already been decided in addition additional prejudice is that we may have inconsistent decisions now we have the district court saying yes your honor at one forty three and one forty four actually i think it's at the top of one forty four the state court preclusion issue is not subject to arbitration and that's where we have the disconnect here you then that was my initial comment your honor either none of it goes arbitration because our position is they waived or all of it should go to arbitration the whole object to that that i do not object to that you're all right so the other words you would be satisfied with court did not determine that the court in deciding that waiver did not write preclude arbitration in my position would be is that with respect to the methodology in the amount that this report was a decision would be affirmed that it can be the subject of arbitration and i think there is controlling authority from this court on that point it's the collins case and in that case collins versus d r horton decided by this court in two thousand and seven the court said and i quote arbitrators are not free to ignore the precludes of effect of prior judgments they generally are entitled to determine in the first instance whether to give prior judicial determinations precludes of effect so it is an arbitrary rule question that's not in dispute judge bay has set it right there ought to be in the permits here but with a note from this court that the both agree on that why are we here well it's a good question i think because they want to press the point that living gating the rent reset in two thousand and two constitutes a waiver decision perhaps we should mention home i'm happy to address it to the extent the court would like to because the facts are so different there it was a reimbursement case blue cross thought reimbursement they lost the case and then right on the heels of that the person who won the case filed the malicious prosecution suit the first case the case for reimbursement was subject to arbitration but blue cross elected not to arbitrate they went to court then when the winning party filed the malicious prosecution case on the very same issues blue cross said will that one ought to go to arbitration and the business was this then all the issues between the two parties are to be arbitrated yes but the court of appeal said no no no you just litigated that case you waived that so but the difference between schoenfeld and our case is the facts the issues in our case are completely different because the issue is what does the real estate market in orange county support for a rent the district court the jitter kid the case in two thousand and two so that the methodology the manner and the specifications for doing it even though the time difference in the values are are different and your position as i understand it is fine why don't we see if the arbitrator wants to file we'll argue about whether or not the arbitrator wants to follow the district court's methodology and will call it a day right just so he does we have to honor the arbitration agreement we also have to to give effect they are betrayers have to go effect to those prior decisions they do now i'll just say for the record that they're not correctly stating what the what the court of appeal ruled in the first case that arose from the two thousand and two reset here's the quote from the court of appeal we agree with c p b that the lease does not require or exclude the application of any of the particular valuation methodology is relied on by the parties so that was the ruling but they're free to argue that there are some fre in fact and we'll argue that there's not in the first instance the arbitration panel will decide that issue and they'll give it whatever preclusion of effect they think it deserves and that's how that issue will be resolved and if they don't like the way that gets resolved your honour's will know the limited palette rights that may flow out of that arbitration but saying that the market in two thousand and two is the same issue as the market in two thousand and seventeen that's a fantasy there is going to have to be a whole new set of evidence it is to buy expert appraisers to say this is what the market would support in rents in two thousand and seventeen that's what the panel will be called on as arbitrators to decide not what the market was in two thousand and two well the methodology elected by the court the decision that that was made in which i just quoted to you says no any methodology is fine the decision of the court of appeals in that twenty one fifty one michaelson case from two thousand and two was well we're not going to overturn the superior court they had substantial evidence to choose what they chose to rely on in terms of i like this appraiser better than get out of arguing about that in  determination as to what the meaning of the words in the contract are reclusive i don't think there's really a dispute about it the basic rent a just met says that it's going to be adjusted on the twenty fifth and the fortieth anniversary said the ground rent lease quotes to that sum which the lesser could derive from said property if it were made available on the open market for new leasing purposes with a building on it or that would cost or assume what broader fit you could do to build a good building is you or you could do it that's right use some a scrape site of a can site with none of the improvements that were made by the developer and that's a twenty seventeen determination on the methodology is the deciding factors in this case and the methodology of what to look at in terms of a building being scraped and building new billion that was all decided previously and the problem we have is that c p p can can state and write and make all sorts of references about how the issue preclusion effect can go to arbitration and arbiters can decide that but we still have a district court decision which says that is not subject to arbitration and that's why we have our problem and and that's what needs to be corrected before we have can proceed with that and and and again my position prior to that is that they've waived this right to proceed to arbitration based on their prior conduct ok you all right thank you twenty two handed to brian nichols then versus