please the court my name is gregory acre i represent the part riggins association in this case there are three appeals before the court this morning one is the association's appeal on the rental value issues i will address that argument the primary basis of the associations appeal on the rental value issue is that the trial court in this case improperly instruct the jury that its first had to find the association would have rented out this building in specific performance of a promise to convey real property the injured party is entitled both to specific performance title to the property and to account for the delay in that remedy if there has been one they're entitled to  monetary compensation to relate the remedy back to the date when the property should have been conveyed that's quite clearly stated in the ellis case california supreme court and there is no requirement in any of the hundred six when p r a announced they would make no further payments and did in fact make no further payments that was a major breach of the agreement and it in the breach was established as of that thank you so for the last seven years p r a has had title to this property when under the district court's ruling it should have deeded it to the association in january one thousand nine hundred sixty the this whole would have actually rented requirement is not in the law and that's clearly demonstrated by the meyer case which extends the ruling of the ellis case to non income producing property in the mire case the plaintiff was suing because they hadn't received a residence there was no intent even for them to rent the property and the courts said you were still entitle to monetary compensation even though this was not an income producing property as a measure in means of yeah there are two things and these are really separate items of compensation one is the payments under this nine hundred eighty two agreement for the right to operate within the development and to receive of the agreement so that it sort of like a place holder or something just pretty much to be there right payments to operate within the within the development receive services use the common areas the recreational facilities  but there was no payment under the eighty two agreement for the physical occupancy of the building that p v array had you know title to it and at least for the term of the agreement gets into the issue  of double damage as well as just really are you entitle to both the payment center that you need to agreement and ranch and i think the answer to that is quite clearly if you look at the eighty two agreement and if you look at our in this action what we have asked for is compensation for the payments do under the eighty two agreement and actually even if there was a concern about double damages the district court solved that problem by requiring that any damages for rental value exceed the three hundred eighty five thousand and the court was already awarding for damages under the eighty two agreement for the monthly payment so there could be no possibility of a double recovery that could be whichever is greater i think we're entitled to both i think under the law these are separate items of compensation but what i'm saying is if this court as a district court had in their way of approaching i don't think so because there is no question that p r a has continued to operate under this agreement since one thousand nine hundred six and there they are right now collecting agency said ok we realize it's over here's your property back and here's a check for the three thousand or whatever it was per month three months we didn't pay plus an interest component to catch you  if that happened what would be your new images well let me make clear first of all peter a was not in default before january of ninety six they were current up to that time the very adult they recognize that there's there in my hypothetical that they committed major breach under the agreement and that entitles the homeowners to reconvince of the law and they do it immediately and at that point they're paid up on their monthly dues payments under not only a payment for the right to conduct business within the development receive the services but also now as the owner of that property it could receive and you know there was a value there for the right to occupy that very nice building at dunes so i you know i think in essence so i'm back to my question why isn't the appropriate way to resolve questions about contract damages versus loss of use damages  well what's wrong with the way he did the use was that he required the association to first prove that it actually would have had a renter of that facility back in one thousand nine hundred six and that's not the law on the law as clearly that you're entitled to what he should have instructed the jury is that they're entitled to damages based on loss of use your job is to determine how much that is based on the value of this property i think you also have to recognize though the year most recent to the trial president testified they had recovered two hundred fifty thousand dollars and any property that rightfully at that point belonged to the association collecting from its tenant that money should go to the association so that's the measure of damages i think should should apply from april one thousand nine hundred forward  they didn't rent it from anybody they were free to rent it to anybody and the fact that they were able to get some money from somebody for renting that property at some point has nothing to do with any contract obligations that we had or that  we could have breached to the association but i think i can address the questions that the court was asking on this issue very simply as a court recognizes their argument really is although the court gave the jury an opportunity to find that there were additional damages over and above the payment of the amounts that were called for by the contract the jury concluded that there were no such damages and so the argument is with the jury's verdict except insofar as they can argue so somehow that verdict was improper because there was an improper instruction and the argument here is that the instructions that the jury had to find that it for the breach that would produce the damages the difference between what actually happened and what would have happened that's what damages always are so like they could show it don't they can make the argument  n your honor that there were that they had damage just right from the from ninety six on that they would have been able to rent out the property moons with your argument that they couldn't reason and no evidence that would support a belief that they would have been able to make the same deal either with that party or with any other party and it least that's my understanding and going back to the instruction instruction says you have to prove the fact of damage that's what that instruction says you have to prove that in the as in the absence of this alleged breach you would have had the property and you would have been able to rent it out with one of these it  was this a special form of verdict the generically referred to as a go no further i believe it was yes and yes it was the first question was have has the homeowners associations suffered a loss of use something like something like that had they established a fact of damage and the answer was no right so they followed the instruction and did not go further that's right they didn't have to determine the amount because they determined that there wasn't a that there was someone waiting to rent the property from them despite the fact that they didn't own it and that somehow that created the logical situation for the jury and therefore the jury if dealt with that in a logic by just answering odette first question but that isn't the way i would use understood that isn't the way that it's presented in an instruction and argued in every case the fact of damage as i said i always dealing with a hypothetical situation nobody ever suggested in this case or in any other that you had to prove that a specific party was standing there waiting for you on that date and you would have in fact rented to that particular party  what you always can your honor you can always go out and say well there was a need for this property there were other people who were around who had an interest in the property and would have had a need to use the property property that may or may not be able to be used for any commercial purposes and that goes really to the heart of the appeal the process people in this case which really is the heart of this case i submit  it's this is a case where the party that won the war below also won the race to the courthouse to file the first appeal and to claim that they lost a few minor battles along the way my party clearly i the one who lost this case below and therefore we really are in the position of the appellant here and i think it's very important to address the issues of our appeal across appeal and i also would ask the court for the opportunity to respond rebuttal because it's inappropriate for the other side to have the last word on what are really the central issues in this case since there are issues cross appeal if i could if i could raise that in an address that i know that that's this is a case i believe you can see from the briefs and you'll understand from the arguments in which the cross the feel is really the central role in this case let me address that this is a contract case the most important rule in contract is the court has to follow the intentions of the parties as expressed in the language of the contract that's a space because it can be when there's a claim that there's a great of a contract another very important rule comes in particular were specific performance is sought and that rule says you can't get specific performance of the terms of a contract unless you can prove that you have performed all of the terms of the contract on your own essential element of your case now the court failed to apply either of those rules in this case properly and they did in the court did so because the court misunderstood fundamental nature of this contract and i think it's particularly important address that because in the initial argument i think there was some indications that this court is laboring under some of the same misunderstandings this contract is a model of simplicity six pages including the signature for a contract the last seventeen years why is that a model of  simplicity because it deals with a very simple situation it is not a lease of real property it's council has conceded this is a case of my client being able to use their own property and then they don't get that there are a non exclusive agent meaning anybody else can offer those services to the members of this association so why are they paying three thousand dollars a month they're paying three thousand dollars a month because before they could operate a business there at that location not far as the association was concerned but as far as the county was concerned they had to have governmental that or otherwise anybody could shut them down at any time a competitor could shut them down at any time so what they were getting through this agreement was essentially an insurance policy and they were paying a premium for that insurance policy and it's easy enough to understand that when you look at page five of the contract which is e r four sixteen right in the middle of that page you can see what the central feature of this contract is because it says this agreement is subject to terminations and shall be null and void if the first party does not obtain and maintain a use permit from the county of santa clara and the california coastal commission for a minimum period of seventeen now the validity of this statute when you have said that they've breached their contract because they didn't obtain a valid permit and they haven't maintained a valid permit statute there was a there was a there was what purported to be a permit issue occur but what was required was an ordinance in order to be everybody agrees on this in order for there to be a valid permit it would have required an ordinance and there was an ordinance issued that's why in the end a court didn't ever address the merits of that point because the court concluded that my client was precluded from raising that now whether or not my client would have been pretty booted from raising that issue it was a third party trying to attack the actions of the county is another matter but what the court found here is that my client wouldn't even raise that issue in order to say they failed to honor their obligation to obtain and maintain a permit and keep in mind the evidence in this case is undisputed that in december of one nine five before my client stopped payment on this contract they had gone to the county and said you never issued a valid permit because you didn't have an ordinance and they said and therefore you the county are not bound by anything that was done before and therefore they said to the county these people have no right to continue operating on in this property not because we aren't giving him that prison permission but because you as a county never validly acted to give them that permission so how could you possibly square that action with an obligation to maintain as well as obtain the operating there your honor there is the operation still going forward under a bomb that was that was issued in the state of the injunction which precluded which would have precluded us from operating the premises but we are operating your honor without any assurance from arm they can look to the bone i'm sorry if we affirm they can look to the bond that's right that's right  but if i can your keep in mind when this language of the contract says that the contract shall be null and void that language doesn't appear anywhere else in the contract the contract talks about the respect duties and obligations of the parties and with respect to every other duty an obligation it simply says that if a party feels to comply with the terms that's paragraph eleven just below then the other party may  would have to a passed an ordinance which they didn't do what does what position does that leave my client and that leaves my client a position that unless my client can procure that kind of permission from the county were subject to being shut down breach of this provision the contract provides what happens the contract is null and void and that means we don't have any can particularly permission from them we don't have any assurance of a county permission we have our own property and whatever we can do with that property is up to last this is a building in dispute not just a building your honor the land underneath that was always owned by my client  is my client's robbery that it would love to be able to use for commercial purposes but it's up to my client to have to go to the canteen and get whatever permissions are required in order to do that or it's then have to face operating under the cloud he's going to do the prohibited from operating there even if we can get permission from the county the injunction prohibit us from operating at all what's the amount of the boeing seven hundred thousand dollars so let me go back then so what you have is an agreement that has a record in it that says that if this one thing happens this agreement is over that's it no ifs ands or butts no notice required no proof of damage or materiality or anything the parties all services or something and this contract no longer has any in force ability and therefore i'm entitled to receive the benefits of whatever and you have competing benefits and so forth i suggest your honor if you look at the agreement again you'll see that most likely you're going to come out fairly even on that because my client also conveyed three parcels that they armed to the association at the outset of this agreement the spikes paying the three thousand dollars per month along the way and homeowners homes that revenue is passed through to the homeowner except the commission so big dollars to go and back and forth but not a big high profit business that's why they only had a three thousand dollar a the homeowner from the beginning that was the case your honor from the beginning the way it works it is homeowner isn't in a position because they don't live there all the time and they don't want to get they want to be bothered by it they're not in a position to rent out their property but then they also obtain specific performance of a transfer of the property even dull as long as my client keeps paying under this agreement the transfer wouldn't take place until two thousand and eight so that once again that violates the basic rule not only that you can't give someone specific performance without them being able to prove that they've offered every provision of the contract but also the basic rule that you can't give someone more relief in terms of claim for breach of contract than they would have received if the current contract had been fully performed at the contracted been fully performed yet they would have received a three thousand a month up to two thousand and eight my client would have been able to operate go back to the jury instruction issue first i have right here the special verdict that the court read to the jury and set your five sixty nine in the very first question the jury had to answer was has pl association proved by a preponderance of the evidence that it would have entered into a new leased to rent the office building on or after january first one thousand nine hundred six if it had been the owner at that time they answer no to that question and they could go no further in this instruction in the verdict form because that was the end of that they were not permitted then to reach the amounts and i think it is clear under the  in properties that are there was never an intent to even rent them at all you're still entitle to damages for loss of years counsel was arguing that the fact of damages has not been established here well of course it has the refused your expert because your disclosure of her reporter's untimely correct test correct because he was not satisfied that she was qualified to render an opinion that's correct what's wrong with either of those well issues and one of the issues that sort of floating around here is whether you were given a fair opportunity to the rules to present your case to the jury and one of your principal complaints is you couldn't put on an expert witness and it turns review as i understand it on both of those is abuse of discretion that's correct i would say that that is not by any means the principle basis of our appeal the principle basis is the the incorrect jury instruction i do think that on such a critical issue as this the measure of damages where expert testimony was so important and where the other side already had its own expert before trial there really was no harm here it was on one issue and the court easily could have said you know allow each side to present their expert testimony there would have been no prejudice but if you had presented your expert report in a timely fashion and satisfied concerned you would have had a witness who could have helped you answer that first special verdict in the affirmative i don't think so because the witness the expert witness was on the amount of the damages not or on whether we would have been able to run out the building and in expert we didn't put somebody on from the association that said if we'd had it in january of ninety six we would have learned that we did but not an expert witness we put on that i had a fact witness said that in the give you five minutes because you're a minute over your thank you your honor that your paragraph ten of the nine hundred eighty two agreement would council was referring to it says the association is to use its best efforts to obtain and maintain a permit already agrees to assist the association in doing that and it doesn't say it does say no one void but before that it says subject to terminations now p of three issues here number one the claims to clearly time barred all the arguments about how it was void and all that have been i think put to rest by the chain case in all the probably half a dozen cases which said this statute applies  actions claim void but putting aside that whole the whole technical arguments about the ninety two permit the bottom line here is that p r a fully got the benefit of the of this contract because there is no dispute that since nine hundred eighty two pierre a has been allowed to operate at par her gyms without any interference whatsoever from the county they raise they talk about this being an insurance policy and they talked about well there was a threat of you know possible county harassment that hasn't happened in twenty years or if the full benefit thing when they got seventeen years worth of they got were beyond the seventeen years the original term of the contract in some later amendment that was extended to two thousand and eight so there you know we're about years five years away from the natural terminations of this contract but there is no dispute that they got the ninety five in early ninety six when the answer to that is number one it's wrong there is no word it was required here as we've argued the papers if you look at the city sausalito case this is a far cry from that all they are doing is confirming claimed the nine hundred eighty two green it was the permit was perfectly valid notwithstanding any alleged procedural defects so i mean the parties were taking opposite positions they were already three years down the road in this litigation in my view it doesn't matter what anyone says about this permit what matters is is it legally valid or not was an ordinance required and if not so it really doesn't matter what anyone says about it what really matters is is it valid from a legal perspective and what was argued things in cases all the time that are completely conflicting yet if it was always the truth the court could never reach a decision so every everyone involved in this deal operates the next eleven years under the natural assumption that it was perfectly valid p r a was allowed to opt generated millions of dollars in commissions and we're talking commissions here  not you know the revenue that's being passed on to the homeowners and eleven years later after it's in bankruptcy it actually is claiming that the cost of a procedural defect in this permit issued nine hundred eighty two the whole deal goes out the window and the association has to swallow the fact that it's not entitled to this property that was promised to them even under the most extreme interpretation of this condition the associated with certainly be entitled to rel the brief for the date today for the first time this argument that where it's subject to terminations that somehow that that means is just like anything any other breach but you but not only is that an improper argument but it's wrong all you have to is read that language when it says the subject terminations and shall become null and void that tells you you don't have to do anything you don't have to give any nose it becomes null and void immediately upon a failure to obtain and maintain the problem that the district court had and the argument that's made here suggest is that the district court took the notion somehow that all they really had to do all the association really had  under this agreement was not to interfere actively somehow in our business and as long as they didn't interfere actively in our business then no harm no foul that's not what this contract says it says it shall be  void and it's just like the insurance contract in that analogy where there isn't a policy issue and the other side comes back and says well you know what you have operated for eleven years and you never had a claim so no harm no foul maybe maybe you know maybe you've got a right to get those premiums back but it is null and void because we didn't cause you any damage you nobody else cause you any damage that produced a claim that's not what you buy with an insurance policy which you buy with an insurance policy is that protection and if that protection isn't there you say then the whole agreement is off that is the end of it now there's also the question of whether or not the court concluded that this whole point was time bar keep in mind that the court did say it was time barred but it said it was time barred under the statutes that deal with attacking actions by a governmental body in the first place this wasn't an action by a governmental body it was a failure to act failure to pass the ordinance that would have been required but second even more importantly this was in a contract time bar this was in a contract statute of limitations will be consistent only with the ninety day stature limitations or the shorter steps limitation that's available for attacking the validity of the governmental action here they don't say anything like that so that wouldn't be appropriate and there's where the court went wrong the court then said well because you couldn't attack it on the basis of that you can attack the counties action here these are the the county you cannot raise it as a problem of  part under the contract there is no connection between those too and we've cited the california supreme court case that says yes you can have an affirmative defense for example that's based upon a stash of limitations even though the statute would run on any affirmative claim you might make and that's not even this case quite because that's a that's a step removed from even this case where it's not even a case of us raising an affirmative defense to a breach  contract claim but a case in which we did it as well but also a case of their obligation to prove their performance and i simply raising the fact that they had not performance that's not affirmative claim it's not an affirmative defense there is no appropriate statue of limitations involved there and i'll finally let me say even if you went that far and took the county statue of limitations in important it into this contract there's a very big difference in the cases we've cited point that out between a situation where governmental body has failed to act and where its actions are challenged later even though there's no question that the action has then taken place and has been done properly cases where the court says the statute of limitations runs within the ninety days after whatever action is taken the governmental body is precluded from claiming that they didn't act at that point and therefore appropriately the person challenging them should be precluded from planing something's wrong with their action but in a case where the governmental body never even acts they're never quick looted by any to simply disavow any suggestion that they did and so what if it would not be appropriate of those circumstances to preclude somebody from saying what they didn't and that's what