of those rights the manner of exploitation including the timing of exploitation may be the subject of an implied covenant claim in california the implied covenant is used in precisely these circumstances where you have arguably a very broad range of rights bombed out i mean that's possible to absolutely has and that's what trials are for your honor if we had a trial and the defense could very well prevail and they could say we've introduced evidence we did this for the following reasons we didn't do it to undercut your benefits they've enough to raise the tribal issue of material fact to get a trial on this claim and following up on that are you saying that right paragraph five it's i don't quite understand the logic you're saying that it contract on details that would be necessary in order to not just produce but to exploit a motion picture the contract itself as you've mentioned has an express train will get to later the talks about if needed the parties will negotiate a long term agreement but the plaintiff's own expert indicated the grim sound with respect to things like budget with respect to things like accounting now the subject of another action with respect to things like distribution and the and the order of distribution the memory itself talks about paying for theatrical motion picture dr hay didn't get one he got a video first released which was subsequently released in theaters whether or not that release strategy was bad faith is an issue that should have been resolved by trial court and twenty two it was raging i still talking with truffles here you know it may well be lurking in the record no doubt there are lots of things lurking in the record if we went flying around and found them but the question is your honor i'm not going to say that that was front and center in the motion for summary judgment but it was raised in fact it was raised in  t and reliance and that with respect to disputes over the contract terms of issue here well the district court made some findings about what was and wasn't promised yes and aren't those finding broadcast convention and they talked about the discussions back and forth and they didn't talk about what ended up in the contract because they couldn't they were talking about formation issues they talked about things like that of course that the authors ultimately granted the rights to the court's findings are limited to decisions the the authors made at the convention which said will go with motion prichard picture production company not motion picture pressure company b court never made any findings with respect to contractual provisions concerned distribution strategy it could have and it wasn't court didn't make any findings with respect to contractual provisions regarding budget if i could afford you learn buy a car because i like the way it looks or the way it handles and i don't rely upon the warranty or an obligation by the dealer to fix the paint if it chips if it chips i can still sue them for breach of contract even if i didn't rely upon as a promise and entering into the contract much the same true here what the court is talking about is what did the what did the plaintiffs in this case listen to and believe in choosing namesake over noren now what did the contract and then and what terms of the country and what it couldn't because those issues government cannot be extended to create obligations not contemplated by the contract defend its narrow construction of a scene helps them and hurts us and it's wrong a different agreement and that's the rub because all of the things that are mentioned in his letter he would like to negotiate or as much as y but the fact that the office compensation tops out at a certain number doesn't tell you anything about the budget it just says if we hire tom cruise for this movie and it adds an additional twenty million dollars in the budget your compensation doesn't go up you can't impl if if you were position before the trial court was correct the trial court would have bought into the proposition that you were a lot of one of forty million dollars a crown court found that we didn't rely upon a budget figure entering into the contract the question of whether we negotiated one and some point after january of one nine hundred ninety seven is a completely different issue and again once you have a contract as everyone would have to see that this one  addressing that issue this is a contract in which cloud ten and namesake has no obligations to do anything they contracted in paragraph sixteen of their agreement that the owner the  clouds and is not promising to exercise an option not promising to produce a picture of not promising distributor much picture they hate an option fifty ultimately option exercised or the right to buy all of the motion picture video or television rights the court has made a finding that that's exactly what they got they didn't undertake to do anything for dr kay they didn't undertake to do a distribution or have him question their distribution strategy they simply bought the rights and then they have the rights to be able to exercise them this is not a case like the march through case or like the law case in which the defendant is undertaking to do something for the one we're not undertaking to review film scripts like the  undertaking to do the distribution of merchandising like in the market case we did not undertake to do anything in fact we stipulated that we weren't agreeing to do anything in fact we say we don't have to make a picture we don't have to distribute it and there was nothing the agreement which limits cloud tens of writer namesakes rights to be able to distribute the picture in any way they want and that's a reasonable position to have given the fact that profit participants can't be going around second guessing the way studios are distributing motion pictures if every time a profit which isn't it was able to stand up here and say well wait a minute i disagreed with the way warner brothers or sony distributed a particular motion picture we would have nothing but litigation over various its different views as to how that should be done and even if the court were to consider an implied covenant existing in this case how would that implied covenant be proven it seems to me if there was a breach of that implied covenant you would have to argue that there has to be back to that faith in the law case because whether it's distribution by the or the african how the distribution goes is certainly a matter of creative artistic decision as opposed to a hard and fast rule and how is this court to adjudicate that in light of the record before the court there's nothing the record about in the court as to cloud tends belief or disbelief in their distribution strategy backsides and believe their strategy dr the hey at one point claimed he disagreed with the finding which i think is relevant to the issue of was there implied duty or was the fact that the the medium in which this was going to be distributed was something that was not relied upon by doctoral hey in deciding to enter into this contract and i'm talking specifically about fining them between the three in which the states in deciding to grant the rights to name six the authors did not rely upon the discussions of budgetary figures the authors continued participation in the movie production nor been discussions of the style scope medium medium of the contemplated the finally now that is a binding finding on the plaintiffs if they do not appeal those finding if you go through those findings i think they give you a roadmap to a lot of the deficiencies in this case if you're findings question which is different from anything we've talked about so far and that is the connection with the declaratory relief sequel or and you have a kind of we'll what are we supposed to do about that well first of all that's not an issue that really is the subject of any of the briefing on this appeal the court did not make finding on the kids rights issues that was something that was simply not addressed in the findings that's not an issue that deals with the thrust of their quarterly fashion however which was  certainly the agreement contemplated the possibility of the parties entering into a long form agreement at which point the parties would negotiate not the terms that they had agreed upon but upon industry standard trends like accounting issues  situations where the parties need to enter into further agreements and i mention the short term option and assignment of rights and copyright and that kind of thing and then in the same paragraph the very next sentence the parties say if needed the parties will enter into a formal long form agreement embodying the terms that have been  was renegotiate the terms of the parties that discussed and they refer to this april eleventh letter which is in the record which is there evidence of our failure to negotiate in good faith and those terms and that's a good at it page five thirty thirty nine of the record those are all terms of the parties had dealt with had addressed in this agreement and they weren't dealt with in the way that doctoral hate one deal with them but they were dressed and so the idea that we can be in breach of contract for failing to renegotiate terms that the court when they conducted a trial on the merits found were never contemplated terms of the contract seems to me to be an attempt to relive a gate those issues that the court  articles i thought i saw the word we'll negotiate in there well i mean what you want to do you need to be more than me he says if needed the parties will enter into a long form agreement embodying these terms i think the will says enter into a long form agreement embodying trying to do so as well and it also mentions the standards of the industry correct the next sentence is the only sense that talks about negotiation and that is the sentence that deals with the customary other charms the other standard terms of an arse of a an option if you don't think you are obligated to enter into a long term agreement which would incorporate the terms and conditions standard in the industry as to the standard terms and conditions certainly if there has been a presentation to us by the plaintiffs they wanted to negotiate those other terms and standard terms and conditions we would have had an obligation to negotiate them and we had heard so good there were additional terms that were standard in the industry that weren't included in their corral there are other standard terms that one included that there was never a request to negotiate those terms if you look at the record at five thirty nine which is their letter of april eleventh that's the letter that they don't think that letter contains anywhere a request to negotiate other terms and conditions that are standard in the good in the industry it is a request to negotiate the terms that the parties already dealt with in their short form agreement and a a breach of contract for failure to negotiate there was never a failure to negotiate standard industry terms and conditions because that was never presented what was presented which is it is that page five thirty at night of the record was an attempt to renegotiate the points that were dealt with and the agreement talks about a long form agreement will embody these terms in other words the terms we agreed upon and in addition other terms not these terms but other terms will be the subject  it could be i don't believe it's an industry standard term and certainly the agreement in our case gave clouds and the namesake the absolute unfettered right to decide which way they wanted to distribute it if they wanted to make a movie at all so there's nothing in the agreement that limits it and there's nothing to say that the parties and as i think it would contradict the blanket and unequivocal grant of rights in the agreement to reduce those rights by saying but you can only do it a certain way i agreement is very clear that namesake and clouds and have the absolute discretion on how to make the picture how to create the elements for the picture and how to distribute picture there's no limitations whatsoever imposed and there's no obligation to even do a distribution of the picture so the question is do we have to do a video first or the african first we can elect to do neither are either and so the question is is does a request to negotiate limitations on a contractual law we would have an obligation to renegotiate this as part of a standard long form agreement that dealt with other terms that didn't dealt with the deal with the terms that the parties that already discussed have already negotiated already agreed to and in fact i think the court findings are instructive that that was not an issue on pun which the parties relied to enter into a contract so consider this if this case was remanded for a contract determination of whether this was a part of the contract or not the court's already made a finding that the medium in which this contra the movie was going to be released was not something that the doctor lay relied upon in entering into this contract if these discussions were not concrete if they were not promises and if they were not relied upon by doctoral hay and entering into the contract for the purposes of a fraud case how can those same promises and representations be a contract it seems to me to be absolutely inconsistent was that if there was a situation where the parties needed to have a long form agreement such as for getting third party financing or getting a bond or some other third party reason that the parties would create a long form document that embodied these terms and then they would negotiate the standard other terms i don't think this issue ation presented itself there certainly was no request here to negotiate those other industry standard terms i don't think if needed means that if the parties disagree about what they've agreed to that we then have a negotiation over those same terms again to decide whether or not one party's interpretation with the other party's interpretation is going to be upheld that's what courts are for and if the parties don't have a that they don't have an agreement the judge here considering the evidence found that there was an agreement and found that the representations that they claimed were inconsistent with the agreement upon which they relied were in fact not representations they weren't concrete they were promises and they weren't relied upon so the idea that there hasn't been an opportunity for those issues to be fully heard and considered by the truck what i think is completely an inaccurate statement of the record i think in this case we have those representations discussed at great were no other representations in place of the level of promises and the parties plaintiff did not rely on those representations in any of that so therefore the contract isn't forcible so the court's declaration and the findings really i think respect that occurred before making that decision were not any different from the ones that occurred before the agreement was entered and again i don't wish to dispute that but i don't i don't know i don't know for a fact that to be the put any evidence or trial on that issue because it was passed with respect to the video first strategy we did deal with it in the opposition for motion for summary judgment it isn't pages fourteen fifteen and twenty three and with respect to our demand for a long form agreement i'd like to just look at the writer rather than accept mr o'connor's characterization other the authors or she's me dr hayes sent a letter striving the necessity of entering into a long from agreement he listed a series of things he company baskin robbins yes we've had we've had four videos that have come out that have gone directly beneath it we just ask you whether you actually asked for negotiations on standard industry terms and conditions and the short answer is we didn't ask for in this precise terms we said let's negotiate a long form agreement including these other issues and they said no this drill kind of characterizes that is the best meaning to take back what it already been granted in the contract but really focusing on what issues the are your client wanted to negotiate we said the issues that require clarification include without limitation scope of motion picture rights budget authors  producing the movie distribution of the motion picture other products and children's books we hope you will comply with the spirit and letter of agreement by immediately entering into good faith negotiations that resolve these and other issues we will never know how far we would have gotten with the negotiations because simply put we never got there and now we're down below suing for an accounting because there's no accounting provision and here they have to sit down and negotiate they never did and we have been damaged and we're entitled to a trial no the first movie was made mr alon the producer of the movie has decamped to the tax haven of barbados with the seventy million dollars he made on the forbidden we're not trying to very good parents must question the money so long lines i quite like the line i'm not asking about anything discussions you've had my questions really simple and that is have you given any consideration to mediation because the circuit does have a rather effective mediation office on either through the through our office your honor we did try mediation and we certainly are willing to consider mediation given the fact that they've recently filed yet another lawsuit against my client it seems like the parties seem to be a bit polarized but that's something that will always