once as a matter of right before response of pleading is served in this case you should move and give a short procedural history of what happened in this in this case this matter was initially filed in the probate court los angeles county in mid january  thousand and five it was removed less than thirty days later took to the district court immediately thereafter the defendant moved to transfer the case to new york or dismissed the case  emotions motion to transfer and motions with man was that was heard by those to court on the full fourth at that point the court ruled without any argument from counsel no discussion whatsoever no discussion of the court's reasonings the court decided to deny the motion to remain and denied a motion to transfer at that point the district court said that it was not aware that there  actually this report said it had not prepared for the motion to dismiss that the defendants have filed and so took that matter under submission once again there was no discussion about the motion no argument by counsel and approximately two weeks later due to the district court issued an order such leave saying the matter is dismissed with prejudice without leaves and that no discussion no just don't no rationale for decision was given  n this this circuit is made clear that the filing of a motion to dismiss does not constitute a response of pleading under rule fifteen a and so the district court dismissed the case without giving my client an frivolous well i think your honor that the language of the statute is is very clear the cases have suggested and i would have to say that they're not all on all fours i would add that in the wages case the court had an amended pleading in front of it and looked at the amended pleading and said well there really is not much more here than there was in the first in the original complaint and that circumstance the court the court for leave to amend in order for the the court to still have an obligation to grant leave to me at least once before the response of pleading is filed if you had to state what went wrong here i would just say well i plaintiff should have had an opportunity to amend its complaint assert to assert non probate causes of action for example breach of contract the second thing that i think happened here your honor is that is that the district court provided actually no rationale replied by that by the other side then it's appropriate but in this case for example the issue of whether or not it was appropriate whether or not if your contract claim could have been stated was not before the court anyway the court district court can didn't consider it could have considered the there was no discussion of it in any pleading or any any motion or moving paper in front of the district court so so in that situation in this situation  but that was that that lack of rationale justified a reversal of district court's decision to dismiss without leave to a man in that situation on limbs of four i think there's a third or fourth amended complaint question the same thing was it was that issue in rationale provided by the district court in that kind of situation reversal is appropriate for this court this court has said that i can and again and again and and in this particular situation there was no rationale provided to the deed and the the other documents in the probate action which i think you did yes your honor so all of those were before the court with any other documents that you didn't give the court well assume you're not relying upon those agreements because you use the last agreement which superseded all the rest well the last are going to supersede it but the other agreements may well that they they provide color for what  those cases are all distinguishable on the basis of the fact that they are all real estate related cases in those situations that the the courts in california are looking at those at those i can guarantee you that but so little time it's a long time your honor i agree but the fact that they continue to operate it suggests that they understood that they have an obligation to do that as well and i think that if if we were unable to take discovery we would be able to determine whether or introduce make other allegations about the contract we would be able to introduce potentially introduced facts concerning what the meaning of the contract w i thankfully waned and its funds could be better spent on other educational institutions and projects this led to objections from the alumni of the school a great deal of local document itself couldn't be clearer in its purpose of releasing any and all conditions on the transfer of this property we even a g b u free to do as a cleese's i'm sure your honor the familiar with the document would just to quote one part of the many portions of the document that indicate the clear intent it leaves the a g b u absolutely free to do as it pleases with the properties that were given and transferred to it by retaining the property or by eliminating it and free a completely from all over site control conditions restrictions or obligations whatsoever in the management  property has the right to alienate the properties of the aged be you was plainly the beneficiary here be hard to conceive of a document that could make any clearer and intention not to create a trust and indeed the purpose of the briefing it was a probate petition and the argument was made by talent that the case should not be dismissed because there are additional theories and they argue that google charge and they argue charitable trust we respond later language that sets out the purpose for the gift of them or the expectation of the donor where the gift by its terms is unconditional  contractual it can be seen as a contractual claim there is no contractual right here if there was no obligation to run the school created by contract it's been fully discharged but did does not say perpetual it does not use terms of signal such an obligation like permanent or always it does maintain a school and there are there is extensive case law both in california and from the supreme court that deal with these sorts of agreements elsewhere and the supreme court indicated first that it was concerned that a perpetual obligation may be violated good public policy but in any event permanent did not mean perpetual very easily the patriarch has been paid well more than that which i think is why it was all actually pleaded as he doesn't know whether he's been paid in is received some he's not sure of all he received was paid in pounds sterling anything that you need to tell us that you didn't tell us that very the only thing that we did didn't say in the brief came in there were two twenty eight jane letters that we filed with the court one was to notify opportunity to tulum and that's all right if the amendment would be futile so somehow you want to tell us why in your view  u to maintain the school and to pay these sums off to the to the to the patriarch and so so there is a there is an obligation it's in the deed and whether it's contractual or trust it's there and the question is what is the significance of that and it's inappropriate for the district court to decide that issue first without him seeing a pleading of a contract cause of action and secondly without taking any evidence or hearing anything about the significance of that language the language is there any it creates an obligation by the age of you to do what it says it was going to do which is to maintain the school and the reason that the other cases the other reason evidence and conducted a trial or some other fact finding opportunity to determine what is the meaning of maintain which is emma you know we are not going to know the background of this case you know why the school  located in cyprus in the first instance of course you know the situations that existed at the time and you know the changes that have been made since that is true your honor but if but if they don't we don't just say this is if we are living obligation to them why have they continued to do that and the point is that the that the that the obligation as i said is in the obligation to maintain the school and it should not be for  decide without any kind of factual record about what the meaning of that obligation is and just to throw that claim out with a limited amount of time to present evidence to the trial court a limited amount of time