good morning your honor my name is calling ballin i'm here on behalf of the plaintiff appellant g i s there are the district court made to summary judgment rulings against g i s that are the main focus of this appeal number one the ruling on how the purchase quotas which are to be measured and number two on the coverage of the electronic warranties which are referred to in this case as e f p p's i'd like to start with the quotas there was a fundamental mistake here the district court made a fundamental mistake on the quotas with respect to the quotas g i s was a moving party g i s sought summary judgment based on the theory that by virtue of the parties twenty five year course of performance the contracts were no longer subject to the territory quotas as written in the agreements and instead were subject to  single aggregate quota across all of the territories and that was because of a waiver stoppel theory right we argued waiver stoppel and implied modification or did you argue implied modification and just your court words implied waiver can you explain what you think you argued what we argued was that the parties conduct for twenty five years had been antithetical to the language in the agreements and that under california citing to buy the argument in discussion and by citing to the controlling statute which is california commercial code one thousand three hundred and three dollars f and by citing to the leading case the wagner case which is the same case that says the doctrine of a stop will further provide and then you cite these things so it seems like it was about as thoughtful and waiver not about implied modification it your honor i believe that we raised it sufficiently in the manner that we did but i'm pointing to you when you understand what we're relying on but the point that i think the bigger point here is that even if we had not moved on implied modification we certainly weren't required to bring a motion on implied modification we were not required to file any motion on summary judgment and the big problem here is that the court that should have had no effect a trial whether or not we brought that motion should not have foreclosed us from arguing implied modification at trial because we were required to argue implied modification we should not have by bringing a motion we should not have been foreclosed from any of the arguments that we wanted to bring at trial and what happened here is when the district court denied our motion it should simply have denied the motion and the case should have gone to trial instead the court foreclosed us from presenting any any any evidence or argument on these theories and what's weird to me is the awful arguments are both premised on the idea that you had to depart from a clear meaning before and that the clear meaning was that there were territory by territory quota right territory by territory agreements one of the things that i territory by territory quotas one of the things that i'm struggling with is kind of why i argued it that way because it seems like it might have been more natural to start from the beginning and say this contract ambiguous here's our course of conduct to interpret this contract that's ambiguous that's ambiguous but i don't think that argument has even been made now i ever that like just from the very beginning this was an ambiguous contract it doesn't have to be and big i content contract in fact what we're talking about is is where you we were saying even if the contract can be read as having per territory quotas this antithetical course of performance that has gone on for twenty five years changes the rules by arguments you made about that in the district court were these waiver in a stop the ones which depended on your opposing party knowing that you weren't actually going terror tory by territory in terms of quotas would say a couple things about that what what what what what they were what korean was required to know was that the terms in the agreement required of a perk territory quota they not only ignored the p territory quota they substituted the aggregate quota what they did was they had monthly reports that tracked and measured our compliance against an aggregate quota and they  that you weren't actually complying with the territory by territory quotas right well they didn't know because they were substituting a different quota well they might have been both consistent you could have been meeting to i mean the point of the aggregate is it adds up the territory by territory right so you could have been complying with both well let me say this there is evidence in the record that was not the basis for our summary judgment motion and again i think the bigger problem here or the procedure problems on summary judgment but there was evidence in the record of not merely the ignoring the per territory quota and substituting and measuring us by an aggregate quota but of an expressed agreement to treat the quotas as an aggregate quota and not as a protest or tory quota that was evidence there is evidence that was in the summary judgment record not the basis for a summary judgment motion because we were trying to win summary judgment on what we thought was undisputed facts and so we came forward with what we came forward with saying here's of course the performance based on this course of performance we are entitled to win on our theories of implied implied waiver stoppel and i also believe implied modification we didn't come forward with all of the evidence all of all of the relevant evidence we only came forward with what we thought was undisputed we wouldn't there was other a whole universe of other evidence related that was disputed or that might have been the speeded including evidence of the expressed agreement that was not the basis for a summ judgment motion we would have left after trial and the problem here is that we made a motion the district a motion for summary judgment the district court denied it it shouldn't have affected that should have been ok we go to trial but instead the district court instead of just annoying the motion the district court made a statement in the context of denying our motion the district court said i think these quotas should be treated as per territory and not in the aggregate it treated that statement again made in the context of denying our summary judgment motion as a dispositive ruling against us it then in fact granted summary judgment on that basis and a partial summary judgment to guardian because what it did then what else could i ask so it seems that the premise again of the arguments you made on summary judgment was that the language was clear that it was territory by territory but that there had been a waiver but that going back to the original language of the contract it was clear that it was territory by territory quotas we said that even if it is territory by territory we made an argument we said even if it territory by territory by waiver implied waiver a stop will and i believe implied pontification i hear that you do not we made that argument it should be viewed as a perch territory quota so  but if the court understood you to think that language is clear is there something that you could have done later that would have changed the clear language yes what as i said we the the the the length implied modification implied waiver and a stop all are all theories under california law that change that language as a result of conduct guardian's conduct antithetical to the language in the agreement for twenty five years gordon relinquishes the right to require something like let's take take that you in summary judgment didn't argue implied modification that shouldn't have for closed you from arguing implied medication trial absolutely nothing that we argued on summary judgment should have foreclosed us because the court was simply denying our motion a denial of a summary judgment motion should have no effect on what we're allowed to argue a trial and what i'm also saying is that we didn't argue everything on s judgment we argued the stuff that we had that we thought we could win based on an undisputed evidence there's a whole universe of other evidence that we could have brought including of this express agreement but we cross motion for some regions there was a cross motion but it was based on a very narrow issue the only issue the guardian moved on was a supposedly lack of recoverable damages and that was a motion that district court properly denied and so we had no no if we treat this again this was a statement that the court made in the context of denying our motion there was no cross motion on the quote was correct saying they were entitled to a partial summary judgment on that right absolutely correct your honor and that is my point that what the court did here is it took a denial of our motion made a statement in denying it and then treated that denial as if it were granting a motion suit with spontaneous to guardian on that issue without giving us the required notice an opportunity notice that the to certainly apart from the quota issue you had these two other issues correct there were many issues one was on the commission and that's right as i understood they were saying there was no consideration they were saying that for savage was was part of a settlement agreement of clay yes yes they were and what were the guy just what  understand what exactly were the claims being settled when they wanted to when guardian wanted to sell to buy directly was your client saying demand with a demand letter we had a dispute about it we met we've had letters emails back and forth and then we settle that dispute with this agreement that is in and it's a written in the e mails business context in which that kind of thing seems often to be done well me has this so you had this rd claim that you stressed about the weather the electronic nine agreements the florida cook county and minuteman tick agreements and it relied exclusively on a provision that appears in all nine of the agreements that it referred to as the product of language and the product language raises this question of of what the attached exhibits say the exhibits attached to the agreement say are the covered products the district court singled out those three agreements because they had exhibits attached but those exhibits did not say enough p p s on them it did not rule on the other six agreements because the other six agreements didn't have exhibits and so the court took that to mean that it was going to let those go to trial so the again the court's ruling here on the product language but guardian did not move for summary judgment on the product language it not only didn't it couldn't because it's witnesses testified at trial they admitted that the product language had nothing whatsoever to do with whether products were covered under the agreements they testified at trial that instead guardian had dispensed with the dealing with exhibits back in one thousand nine hundred which explains why those six agreements didn't have exhibits and instead had replaced them with a single price list that it updated that price list apply to all of the territories equally and the price list listed if p p s so i thought they did work their cross motions on judge there were cross motions but they did not raise this issue the issue of the product language was raised only by the court so what is your understanding of the basis of their cross most their cost motion was based on different language of the different provision of the contract that was based on two grounds one it said these are not covered products because they are underwritten by a rd party and not by guardian and two they said these are not covered products because they don't say tomorrow to submit the exhibits and what we did was we submitted a price list and we said the world has moved the garden has moved on they're not using exhibits anymore they're using the priceless but the court ignored that and said if you want to talk about this you should have or you should have talked about it in your summary judgment brief but of course we couldn't have because the product language was an issue on summary judgment this wasn't an issue raised by guardian it was an issue the guardian could have raised because as guardians witnesses ultimately testified at trial the product language and the attached exhibits were not were not relevant we had moved on to priceless and so the the court sue is sponsored raises this issue after good morning your honour's may please the court calvin davis for apple ease i want to just start by correcting i think a couple of misstatements about the procedural history here that were just made st of all on the quotas there were cross motions both sides made motions for partial summary judgment on that issue so the issue of intrusion was just about damages it addressed damages your honor but to address the damages issue both parties both in their motion are moving papers called upon the court to interpret the quota language which the court did and that's the rule and that's the ruling it reached so there were definitely cross motions the nd misstatement your honour's is the argument that somehow plaintiff here appellant was foreclosed you implied modification of the trial that what happened at the summary judgment stage it's very careful we have to be very careful here to separate what happened in summary judgment what happened what happened at trial i think there's some conflating there and some confusion going on there so the court ruled with respect to certain contracts that were before it on the summary judgment that the quotas were monthly in by territory it also ruled in certain contracts that were before it that electronic warranties were not included within those contracts definitions of guardian products because of the exhibit a language and those contracts had exhibited days however plaintiffs were free to and did try implied modification of one of those jury on the other contracts that weren't addressed so cross motions on quotas were absolutely made and they were not foreclosed from arguing applied modification in front of the jury on the key on the parts of the contracts that were not addressed by the court but but on implied modification which is one of i think the two main arguments they're making here along with us is that the court rules with sponte on applied modification look the court asked question about why didn't you just start with this argument basically and i think i know the answer to that when you're suing for breach of contract and whether it's a trial or it's summary judgment it's a much more appealing powerful argument to say this language is clear you don't need extrinsic evidence you don't need anything else look at the language and then what happened here is they relied on that argument along with some waiver and stoppel arguments which as courts pointed out sort of go against the idea of the languages well it's sort of a sort of some like almost contradictory but it any rate they made the argument about a waiver a stoppel in front of the trial court of summary judgment the court ruled against them and said i don't think so i think the clear language here says that monthly and per territory quotas i think the clear language says with respect to these particular contracts it also says electronic warranties are part of this so i think frankly what happened here is counsel and plaintiff regrouped and said that argument is not working and we better come up with a new argument which is implied modification or of the interpretation which the parties placed on the language of the contract the contrary can say we will sell you only black diamonds but the course of conduct can be  is we have cases on it in diamond merchants deal just in that way yet and i think you are what you're asserting right now that's an implied modification argument worth's someone says even though the language says white that the course of conduct of the parties is black absolutely and if they praised implied modification they'd be entitled to raise that their argument now if they introduce the evidence of implied modification and come along later to state the legal argument error made by the district court is that she ignored their argument on implied modification that is just incorrect the argument they made before the court was waiver in a stop will not implied modification and so when you look at the record before the to say is from day one these contracts were implied lee modified right except they don't make that they make no such statement there pleadings it's not an affirmative defense to our counter claim and i think the most the most significant proof that they ha never raised implied modification is they move for reconsideration on the court's denial of their summary judgment motion where they have an opportunity to bring clear errors of lot of the tension of court they never mentioned implied modification because it wasn't part of their i interject on that i don't really understand the law of the case argument based on what the court said if the court has a motion for summary judgment from that time on that issue and the court makes a statement in resolving the motion was filed saying it looks to me like like these are by by say by state separate quotas why would we think that statement is based on a few of the evidence in the light favorable to your client as the non on the there are sort of mirror image claims plaintiffs brought a claim for wrongful termination we brought a counter claim for breach of contract in the early mirror images of each other both sides moved for partial summary judgment on the on those claims the court was called upon then to interpret the language determine whether there was a breach or whether there was wrongful termination so the court looks at the language and the breach notices were sent out based on bridges a quote is so obviously to determine whether a quota has been breached the district court has to look at the contracts and interpret them and determine whether or not the clothes had been breached and what the quotas actually consist of the court looked at it there's a great deal of detail in the district court's ruling about this and the courts specifically finds as a matter of law that these contracts or the quotas are to be interpreted as monthly and b territory and it specifically reaches that ruling it's not a casual statements not offhand statement the court rules in the case and in the decision as a matter of law i find that these quotas are monthly and by territory that becomes law the case it is not going to be departed from absent an abuse of discretion and that was litigated subsequently there were arguments at trial about law of the case there were arguments about jury instructions that were given to the jury based on a lot of the case and the  found that the subsequent litigation of this case was governed very significantly by those rulings on law the case and she was not going to go back on the decision she made because she told the parties at the time it was essentially law the case and so that that decision never changed so that the court did do this the court decided that these contracts meant that the quotas were by territory but i think that's some kind of legal determination that would be reviewed to nova by us right correct so what if we look at this contract and think this is totally ambiguous whether it's territory by territory so probably we should look at the course of conduct why can't we do that at this point and say well the party's course of conduct was look at the quotas in the a because what was i think the court has to the court is not permitted to take into account all evidence that went through this case through trial and the court has to look at the evidence and the information that was before at the trial court at the time of at the time of the summary judgment motion and implied modification wasn't raised no such argument was made so what is the error there is there is there arguing there is some clear erro error and interpret in this contract i mean that the court interpreted it and see what what should we do if we think well they interpreted it wrong yes well i think your honor in terms of the court's interpretation of the contracts as was applied throughout the subsequent history of the case i kind and judge friedman's question posed to you now if we think there's a mistake so why would we be bound by law of the case right there are so the exceptions for the exceptions for the case or are the argument that that the ruling was clearly erroneous or there's a manifest in just there's a manifest in justice st of all appellant is citing evidence that came up  trial not evidence from the summary judgment motion so i don't see how there can be a finding that what the court did on summary judgment is clearly erroneous not only that there was an element right there were not one that isn't really the question to my in my min saying i do think i agree with that interpretation however the court's ruling i think you also have to look at some of the the decision making and the the reasoning of the court below which was that there would be substantial prejudice inflicted on apple e in this circumstance because it made that ruling it the parties were and were instructed to to follow that ruling through the course of the case the parties follow that ruling through discovery and trial and now after the trial is over and the jury has rendered a ruling the to go back on that law of the case ruling would cause substantial prejudice so that is something that the court took into account at the time especially in terms of the fact that the the argument that's now being made that somehow this was all before the district court is just not correct it wasn't so how can that be a clear error when this wasn't before the court and the arguments the arguments that were made to this court by al pelletier were the language is clear the language is plain the language is quote unquote crystal clear your three hundred and forty two and they specifically called upon the court please don't rewrite the plain language of this contract in other words essentially don't modify don't modify the contract so the argument was put forward to the court was don't modify it apply the language as written which the court did and for that to somehow and now be an argument that there was a clear error based on the record before the court i just don't think there is i just don't think there's a basis for that filing on electronic  basically this the same issue both parties cross moved both parties put before the court the in tripper taishan of the language on electronic warranties and the court appropriately ruled on that and as i've already mentioned it again implied modification was not before the court at that time on the sewer sponte argument that's been raise there was no source responded rulings by the court here both on quotas and on applied modification on quotas and electronic warranties before the court was the language of these contracts and the court was asked to interpret how do these quotas work what is the scope of these contracts in terms of what products they cover so there is no suicide on to here that the issues were squarely before the court  minute order needed then the minute order was needed because i think the court wanted some clarification on the exhibits that had been submitted i think all that happened on our side of that was we simply resubmitted the argument be the evidence on the contracts we had previously submitted the court because it was focusing on the exhibit a language said i want to be sure i have a complete record here and i'm not missing some exhibit days here so we resubmitted essentially the contracts in the court found there exhibit a's on three below thank you humans so we just heard my opponents say that we moved on the saying that the language was crystal clear and don't revise the language that was with respect to different terms in the contract when we raised implied modification even if you assume we didn't raising a motion for on the argument on a motion for summary judgment and having it be denied should not have affected what we were allowed to bring at trial instead the district court denied our motion and then treated it as a dispositive ruling against us and then had you know granted the other side's motion in limine day to foreclose us from offering any of this  we go from a denial of a summary judgment motion where she says i think it's a protest retore not aggregate she should have just denied it we're done we're going to trial instead district courts takes that language uses it as a basis to grant the us again in the night before trial there was another or argument relating to demonstratives doubled down on that that's an e r ninety nine dollars to one hundred dollars and saying i did not leave any leeway on the topic of purchase quotas you cannot raise them again based on the fact that she denied our motion she's for closing off the trial and then you see the jury instruction n e r two hundred and twenty one where the court says this is an issue that's been decided so what we have is this statement denying a motion that we brought which the court then jujitsu against us into a foreclosure of our ability to argue implied modification waivers stoppel and even express agreement at trial it's just  it's a it's a fundamental error and that's the big mistake here taking the denial of a summary judgment motion and saying without giving us notice or an opportunity that notice that the sufficiency of our contentions are at issue taking that statement and then saying i've ruled against you we're done with this you can't bring this up at trial that's the biggest problem here and that's something that had our hands tied on the quotas so that we weren't able to demonstrate to the jury under any of our theories no matter what seems like you still didn't use implied modification at that point it seems like that would have been a good opportunity to do that so there's the implied modification on the coder's and there's implied modification on the piece at the time of the motion for reconsideration the truth is that we didn't fully understand that the court was going to take that statement from the denial of its motion against us and then use it as in effect ruling against us it was just a statement in her summary judgment order so at the time or a motion for re consideration we knew that the court had made a ruling on the f p p's that we thought was wrong again based on the court's own theory that guardian had raised but we didn't fully understand that the court had ruled that was using our then again there was another motion the night before trial on the demonstrative that we were permitted to use and the court said again i'm relying on that statement i made in denying your motion to foreclose you i leave no i've left you no leeway and then you go from there and then you go to the jury instruction where the courts this matter are already decided the jury doesn't get to decide this that's the biggest the most fundamental problem we have here thank you  is limited and we will stand not only in recess but adjourn for the week thank you very much