pelly was required to show two things first it was required to show that it had the right to enforce at least one of the two contracts that included an arbitration agreement and secondly it was required to show that at least one of those arbitration agreements was in fact formed as an agreement under california law in opposing the motion was required to show a genuine issue of fact as a contract for me i mean i'm confused about your position in this case and maybe you can help me with that is it your position that the other side if you all cases are strange but i get this case and you don't say in response to the motion of every trade hey we never signed that agreement there's no such agreement you simply say well the son of the signatory doesn't recognize his signature right you don't say i can't ask you why not the signatory doesn't say hey that's not my signature you don't deny that there's you don't deny you just simply say we put you to your bur is that your argument that you put into their burden they didn't meet it well essentially that's that's correct in the context of a motion to compel or the tray shouldn't with a second circuit seems to say in order to put this issue you've got to say something like we never had it into that agreement that's not something we did your honor you're referring to the doctor's case and that standard has not been adopted in the night sir i know we might adopt well in that standard would not be appropriate though in the context of this motion why shouldn't we at least require you to show up in court and say we never signed bad agreement your honor we did we did allege in the in the in the complain that the contract and again we were referring only to the r p s and not to the request to bind that the r p a was an inforce of all for a number of reasons including fraud in the execution right t and he would have had to take the stand and either swear that he signed it or didn't sign it so what you did was cute maybe the wrong word but it's a little cute he said well you haven't proved we've signed it because all you for your guy said was he sent it to us and it came back you got to do more writing to the district any time any time an authenticity of a signature or handwriting is at issue the district judge or the trial court can require the parties to submit your honor there the record doesn't go to that issue we would have to and that was something that that was something that the app elite could certainly have raised in the in its in its papers they could certainly have put in examples of your position is that this is a fraudulent document that your client never signed it somebody else signed your name to say your position your honor the answer your question the at pelly put in the contract  evidence i know i know all that i'm not asking that question my question is your position in this court and introduced record that somebody else signed your client's name to this without authorization i'm not aware of what happened leading up to someone else putting the signature but that was not my client's signature and now you see your position is that your that nobody on your side signed this document i am not privy to what march but don't you have to don't you have to in order to put the arbitration clause at issue come into court and say we never entered into that agreement we are saying that that agreement on which they rely for arbitration does not have our signatures and it's their burden to show that a contract was formed that they failed to write so your position is that they didn't meet their burden your position isn't that you never entered into an arbitration agree should view is that the that the plaintiff must unequivocally allege in its complaint and or in its opposition to the motion to compel that  the contract was not formed and that's what we allege and that's what we say in our in our in our opposition not only because of the signature issue but also because of the uncertainty between the two conflicting arbitration those no it's a conflict the are the arbitrators would figure out no it's not no it's not for the arbitrators because contract formation also depends on mutual assent based on certainty of terms that's not an issue for the arbitrator that's an issue at the outset for the court to determine the parties cannot be compelled to arbitrate something that they didn't agree to one clause says you arbitrate in the brassica under the breast uniform arbitration act which by the way says you can't arbitrat dispute and the other one says oh and that's under jams and then the other one says or you are betrayed in the british virgin islands under aaa rules though those are irreconcilably in conflict then you add in the insurance policy to which both of these agreements unequivocally relate and that says dispute resolution is according to the administrative procedures act insurance code and these dispute resolutions relating to rate proceedings and try your arbitration issue the contract formation to which you have to demand a jury when you oppose arbitration no not according to the court in believe it's g i b l l c you think it's enough to have demanded a jury on your when you deny that a contract was entered into you then an arbitration agreement was entered into you don't have to demand a jury trial on that issue you don't think oh no they arbitration sorry section four of the arbitration act just says if they jury has been that a general demand is enough yeah i believe the g o p case would withstand for that because i guess my practical question was if you go back and try this in front of this judge right and he has to you your honor i believe that if we went back and actually had a trier of fact look at the issue of whether a contract was formed we would be getting into other issues such as ratification which is something say that your general demand for a jury trial on your substantive claims is sufficient to trigger section four of the arbitration act i would say that it's not in front of us and so i don't want to case really in addition to the signatures and in addition to the uncertainty which again and there's a lot of material that we submitted in a motion for judicial notice and that goes to goes to the district courts comment that the dispute resolution provision in the insurance policy was not intended to deal with collection actions and that's certainly not not the case when you look at  the when you look at the exact same dispute has come up under that dispute resolution clause in the insurance policy with the insurance commissioner in a case called shasta linnen that's in the  supplemental motion to take judicial notice that case on the identical r p a raises all sorts of issues relating to enforcement of the r p a by the elite so that dispute resolution provision certainly does apply to the same kinds of issues and then the other documents that we put in on our motion for a judicial notice were the judicial inciden in which those exact same issues have come up again so there is a lot of overlap between the disputes that are go to the insurance commissioner in each disputes that go to court have disputes that go to arbitration and in light of that you cannot read these two arbitration clauses as consistent with that dispute resolution provision even if you view them as incans as consistent with each other with the time i have remaining i'd like to address the standing is an interesting issue because of how it's come up where in federal court normally the plaintiff is the one that has a problem showing standing this may or may not be an article three issue but it's certainly an issue under california law because the party seeking to enforce a contract has to show that it has a right to do so and any way you approach this they have the burden to do that the federal arbitration act doesn't create an exception to that standing requirement and the case in the eastern district aoki dealt with that issue directly other cases to talk about the general idea the parties may specify with whom they choose to arbitrate their disputes arbitration is a matter of consent and even the california court of appeal and connect dealt with the f a a issue and held that it does not compel arbitration by any party is not included in the agreement with respect to the our p a a we put in evidence that that document was assigned back in two thousand and twelve to another entity they didn't rebut that evidence the district court just said well i'm just going to take that at face value and i'm not going to give the benefit of the doubt to the nonmoving party i'm just going to sue that well since they tried to enforce it and this was only a draft complaint that you showed us saying that the contract was assigned i'm just going to disregard that and i think that that was  receivable from apply right c i c an oath hasn't it doesn't say that it doesn't say the contract was signed it says accounts or something does a because then it says the defendant always asks any the money and ass any praise for judgment against the defendant enforce the contract would be the rights to you so you think if you would sign let's assume that that judge may owes me money and i disagree and i sign the account receivable to a collection agency does that mean that i think contract that all rights under the minimum this raises a genuine issue of fact that needed to be not only used there's no genuine issue fact the only fact you have is that a complaint was filed that says accounts receivable have been signed your legal position is that that fact gives rise to the inability of the other side to enforce the contract any more they no one would have standing to enforce it if under about it that's correct ok well so what cased that strikes me that extraordinary proposition if i assign rights to collection agency to to make future collections of past due amounts that i can no longer enforce i think that running on that raises the question about whether you own the contract in your required in bringing your motion to show that you do what they said they that accounts receivable were signed on on the r ph there are other issues it dealt with in the briefing relating to it with respect to standing with respect to stand a no on on standing there there was another issue which was dealt with below it was kind of glossed over by the district court it had to do with the transfer of corporate rights from the british virgin i don't know can you understand that with that to the us i understand the same name and that and the reason that was in there was that that also raised an issue now it's interesting because the district court accepted the evidence on the reply to satisfy the defendant's burden on the surely you can you can testify that you have a document it appears to be signed by your wife or your partner you can say i've lived with that person for fifty years and i've seen that person should signature a thousand times hypothetical perhaps but in this case it would not and the reason for that just as your question was does this give rise to it the question of the authenticity of the execution of that document and mr  never denied that that doctor was cited by mr rebel senior in never first and also going to these guys he said that doesn't look like my father's signature he did not and if i if i may your honor he did not he did not say it was not he said not he was not he would have to that's correct you're you have to be a guardian angel to his father and see everything the man did and then be able to say he didn't sign the sink but he says i don't that's not  interesting this they have to say we flatly deny there was such an agreement as opposed because if you don't we talking about whether there's sufficient evidence to create a triable issue of fact here in general you lose you know you've got to be arguing that they have to do more than simply produce this evidence there are multiple layers to my arguments here are first of all they do have to flatly deny the existence of a secure arbitrator well your honor i suppose there isn't a case it is just simply common expert and if that person actually had you know you have to be an expert for a law allows a lay person to give an opinion if i may complete the statement if this person can complicate testified as to knowing all the different signatures that principle a particular person may use and also can testify that mr revill a senior for instance didn't necessarily authorize someone else for instance decide that signature because there's a number of reasons how that  perhaps that declaration by mr revill of jr may put into doubt very minimal doubt as to whether or not mr revill senior actually executed that document well that is what gives rise to trials it was not in this case because what is incumbent upon arrival to resist the arbitration is to show that there is a genuine dispute over the existence of an agreement arbitrary that was the contact case and the trial court determined case we would find this was sufficient to give rise to genuine dispute with intensity of the signature so are you arguing that in your betrays you context more is required well i would i would all i would argue that and on review by the ninth circuit that it is not simply for this panel determine to know whether or not that issue would have given issue given rise to a genuine issue of genuine dispute a material fact i think it was a trial in a district court no no no know no no what i'm contending that is well no i'm motions to upon motions to dismiss and motions to compel arbitration those are reviewed to no accept for the factual findings underlying those decisions sister judge didn't the district judge just looked at the document and said it's not enough surely we don't defer to the do well your honor if the district court determined as it did that there was an existing our agreement arbitrate that sounds like a factual conclusion to me that's a factual determination that was based on evidence presented to a room would do new self serving statements do not give rise to genuine issue material fact when i don't put anything really in this case to your opponents argument that you didn't meet your initial burden of showing that an arbitration agreement existed i think you did with what you had to the question is whether the other side said well you met your initial burden but as to whether or not these agreements were actually entered into it's not that you didn't meet your initial burden of putting him in the other side then comes in i understand that and the reason i raise that your honor was to address this perhaps the mr apprehension that at least for life perspective that the trial court did not make a factual you see i don't think i don't think the trial court made factual findings here the trial court to determine whether or not the evidence was sufficient to raise a question of fact and that's the trial court said this is not good enough to raise a question of fact crocker didn't make credibility findings he didn't it didn't here live witnesses it didn't conduct a trial could indeed indeed that's what they're seeking the trial that i understand but it is the case that the trial court considered the fact that there were these agreements that they were provided and they were maintained by the company in the normal course of business and these agreements show that they were executed by what you're having difficulty with me on is convincing me that the district court made any factual determination if the district court determined that mr robert who's affidavit was untrustworthy then he erred in doing so but without without having a trial it seems to me that that determination was a belt and suspenders to determination that was in addition to the fact that there were agreements with arbitration provisions there in that were arbitration you need to say something very explicit like we never signed we never entered into that agreement as opposed to just being somewhat cute which is what i think happened here do you do you think is that we apply a standard contract construction to determine whether there is an agreement to arbitrate and if so whether the subject is within that agreement for arbitration we don't deal with arbitration agreements differently from promissory notes and contracts of construction do we that i would say not normally except with the enforcement of arbitration agreements there is a strong federal policy that the doesn't exist step one is does is an agreement step to listen forces i see what you're saying you're no than i in that respect there wouldn't be a distinction or there shouldn't does provide specifically you won't get insurance unless you execute this but by the way i should be clear i don't see how they possibly prevail on this claim if you tried but that's not the question in front of us understand so is the performance this performance moot the issue contract formation performance in way in some ways i think it really goes to the point of ratification for instance that even if mr rebel was not the cigna tor by performing on the contract four two thousand and fifteen case in the northern district deals with that secondly there is a legal issue and your honor has a question on where my question is that the only question of fact you ready just below the only submission you made was the you're required to create an issue fact if you created an issue fact it's only on one question in my mind which is whether or not your client signed it you don't create an issue of fact on anything else right but i think we'd be entitled if we did you can make that argument to  right this is the second point i want to address quickly is has to do with the burdens for each side and i think when we talk about what is a genuine issue and what is a minimal we're talking about is who's burden really is it on this motion to show by preponderance of the evidence what they're trying to show and this case in this case it's the other side's burden and it's our burden to show the about whether a level of senior could have submitted a declaration versus whether app elite could have submitted additional evidence or taken a deposition again goes to that issue of who