sir and specifically with respect to the station that at the time he was offered the opportunity of renewing as he was required in and she was required to do in two thousand and one there were it's because when you look at the what the district court found when she interpreted the purchase of the station as vitiate in the fraud claim that the promise to sell the in time until they decided or never or not that they wanted to keep the station forever they can keep the station forever that's i think that the circumstances as mr seabury stated in this declaration that there were operating losses going on with respect to the station that the parties knew that this was not a viable long term station it's a branded shell station here but that doesn't that through the part of his eliminated that first comma and interpreted to read well they could sell it at any time so what do we do with that i think the issue is this level of review i think this or this is an issue of fact because the the problem is given the guarantee of the stations going to be sold there's no point in making that promise that's not my point we have to deal with his declaration and those specific words his explanation of losing money is interesting but it's it has it has to do with what he said they promised him this is the promissory fraud we're talking about and he's saying it was an inducement to enter into the lease what if we interpret those record a denial of any of the discussions in two thousand and one there's it's just like there's there's no response from shall as to what happened in two thousand and one well isn't there a least one very good reason for that in your complaint or maybe it was an amended complaint you pleaded that the fraud was that shell had refused to sell the station at the fair market value the first mention it was a true total variance of the fraud pleaded in the first minute complaint as such it seems to me that under rule nine which regulates one pleading you did not give notice to shell of this late blooming promissory fraud how do you deal with that should you have amended you complain or roof fifteen and say to the fraud that you are now using well and for all you had  shall not at that point in time that anything less disability franchise was expiring at the end of july mason within that ninety day window where they they have to give you ninety days notice of germination on renewal so at that point in time shall they late summer late spring early summer two thousand and four shell is starting to market station doesn't come mr very as and offer him the opportunity to buy it i understand it your letter sent shell in the three year old saying you are not in performance of your promises you promise to sell it to us were ninety one hundred twenty days the first ninety one hundred twenty days those words that those numbers see the light only in response to the motion for summary judgment and you do not and then your complaint under fifteen to state the new and particular grounds of fraud don't you see something wrong with the question is what a reasonable juror find based on this that the ninety to one hundred days means that within ninety one hundred days of selling of signing a three year lease would sell the station think about that as a second you in your office get a three year lease for your office and you say i can buy this in the condominium in nineteen hundred twenty fact that you argued forcefully when we began that the reason your client was all concerned about this because he was losing money but he sat there for three years losing more money and didn't do a damn thing about the fact that that shell of not offered him the cell repeated by the shall representatives after the time i know but as the best said you sat there for three years losing money but then worry about buying the station given that the long term i believe it's just a very sense in this declaration that they were repeated promises to sell him the station i've got a question which is i read the exchange in open court where judge patel is clearly indicating a problem with the com placement it wouldn't be an at least a possible thing to do to say you know i recognize the ambiguity here it's a scrivener's error he misplaced the comma let me get a request was was the attorney that was arguing the matter something like which was to be interpreted i know i understand that's exactly what i'm saying be it would have been easier if you had requested from i'm asking why he didn't do it i mean that gives rise to me to some sense of you know they're just trying to trying to take advantage of ambiguity but you're not interested in clearing it up i don't i don't think i think given the state of the argument being presented and where it was before judge patel that was probably not going to be a worthwhile now effort maybe but i agree i mean we so i think that we have covered most of the bases in our papers and i stand ready to answer any questions you have the only comment i would make is that if you total the election losses they were over four hundred ten thousand dollars and and it's over a period of three years and as judge patel noted there was never one letter never anything in the declaration and i looked again when counsel said he thought it was just a very had declared in fact that the repeated promises and he hadn't and in fact judge patel noted that in the hearing as well but let me clarify right if i heard you correctly i didn't think i saw it either no where in the record does it show that during that period between you notice of what our position is going to be there was no indication that they're going you know these years of promises or the content of the promise being different than what is pleaded in the to complain t i don't think any of the cases that have been cited obviously are on point because they either deal with a new franchise agreement and ours is very different because ours is a renewal there's no question council admitted this morning was a re situation whereas pride which is the ninth circuit decision it dealt with suing exxon for alleged misrepresentations in inducing the plaintiffs to enter decided to exchange prop parties with texaco and so they had to terminate their texaco then came in and offered the plaintiff a franchise which they accepted and in that case what the ninth circuit said was well but they're suing you for misrepresentations inducing them into entering into a new franchise which with would have been with a different company should help me where i think maybe i'm wrong then or  with a part let me let me i've misstated there's two points in time at the point in time where the alleged fraud is said to have taken place which is at the time that he signing the reason you ok in two thousand and one and about to a vendor has franchised and is induced by a franchise or to renew the franchise with a secret side deal will slip you one hundred thousand dollars if you do this for us right  of those facts are there that would not be promissory fraud because there can be no terms other than the p n p a terms you can't contradict i believe that the preemption provision is quite clear you can't contradict or basically the state is precluded by preemption that would be correct in your hypothetical and there would be a remedy but it would be the remedy under the pm p s a which is not i mean i think there's treble damage and one point that i may have that mistaken the california once i withdraw that comment i mean that there are the damages would be and the remedy would be under the n p a sort of like rent control or i'm from los angeles we don't have rent control intention shell didn't do anything in that regard i understand that and when the plaintiffs thought to come within the ambit of consumers which is the sixth circuit decision what we did was we came back and said well  relationship then i think it clearly falls within the pm p s t way because it's intended to govern terminations or non renewals and to protect the the franchisees even though protect the franchise or i think that's probably why judge patel didn't rely on preemption as you'll see in the transcript you really don't want to talk about preemption you go the route that it's a very is argued we're going to run right into thank thank you very much would you like a minute continuing promises paragraph six starting lying thirteen through sixteen