take a fresh look at it which is what i've had to do because we were brought in to file a substitute reply brief and by the way i'd like to reserve five minutes for a model i could please when you look at it a new it becomes clear that the district court judge overstepped his bounds in granting summary judgment what the judge did was he took a very liberal view if you will of an integrated set of documents to avoid what he characterized as a harsh result i absurd kind of brings me to some comments that were made in the respondents brief characterizing the deal as extortion and things like that and calling my client a green mailer that i've been on both sides of these and quite frankly i don't find hyperbole like that serves serves either party what you had here was sophisticated business people on both sides of the deal initially and then when they settled the deal and you had sophisticated business people that negotiated a number of agreements the settlement agreement the promissory note the mortgage the shareholder pledge agreement and the collateral assignment all of these documents were part of the settlement of a dispute that came about through mediation the parties were free to go shape any terms that they'd like the fact that the respondents would call th deal extortionate quite frankly is is absurd to me because one thing i know when you're in back to the district court for a moment because what the district court said is that these were documents that were negotiated entered into at the same time it was all part of the same deal it was an integrated settlement so the court was trying to reach that document in context to in order to discern what the parties  with the settlement agreement if the respondent wanted an opportunity to cure a breach of section five point two let's talk about that initially ok which was the one where you had to destroy documents and provide sort of if they wanted a cure they could have bargained for that and you would have found that in the settlement agreement they simply didn't do it where the judge went to ryan if you look at the agreements and i know you've read are you so not going to go through them this isn't a spicy case if you will so and just let's start from the pledge agreement when you start the pledge or given is a separate document it pledges membership interest and it starts at the top and it says this agreement that's a separate agreement the judge amalgamated everything in an effort to get at the result he wanted in my opinion and you can't do that and in doing that he did violence to the fact that the parties negotiated separate and distinct terms for each and every one of these agreements i don't have to tell this court that there's a difference between a membership pledge agreement and a mortgage i don't have to tell this court that you could have a note unsecured these are all separate and distinct documents dealing with separate and distinct events and that's how the deal came down who crafted these documents if you look at the agreement it's clear that both sides crafted the documents no one is the one responsible for no there there is nothing in the agreement in fact there's language says that no one's going to hold the other party responsible saying they're the drafter that type stuff this again your honor what  occurred here was there was a lengthy mediation i wasn't there i mean i hared this there's and the mediation and at the conclusion of the mediation sophisticated parties negotiated these deals ok and it's not for the district court judge to go back and cut a new deal and that's simply what occurred here and i can tell you there's something else that came out to me as i was read reading through this you don't even have to get to all of the various the language in the morgan language in the pledge agreement just look at the no ok the note says what it says and then it has the default interest payment ok and the note says that mortgage or any other loan document so what the note did is it incorporated definitions definition lisa language it was in the mortgage if you look at the mortgage it makes it clear that and event of default is a breach of the settlement agreement period plain and simple my client sued to recover under the note they had the option to do that they didn't have to go after the real property securing the note they didn't have to go after the membership interest that were pledged under the under other two agreements they had multiple remedies to pursue here and they pursued the remedy under the note nothing more nothing less now there is no dispute that there was a default on the settlement agreement there is no dispute as to that they didn't provide the appropriate certifications in time there was no opportunity to cure that under the note or under the mortgage if you want to incorporate the mortgage terms what the judge had to do not that there were still questions on whether there was a breach of the materiality of the breach that the district court didn't reach so if we agree with you that these were sophisticated parties that that the difference in the language between your provisions in the mortgage and in the pledge agreements were purposeful and we set it back what the party said lydgate the materiality at the breach at that  point i don't i don't think we have to do you know why because i can turn to the agreement itself and you know what the party said on this five point two obligation under the settlement agreement the party said it was material so there's nothing there to litigate it's already been to failure to provide the certification with material absolutely it well look at five point two let me just fine point two of of the settlement agreement on i never got just one second used your best efforts but they failed to list two people who they and so when it comes down to that you're saying no matter conclusive that the last sentence of that section is spotted i am ok this was again this and there's no question about it there's no discussion went there's nothing they come come in under hawaii a lot to say with the context of that statement well i don't believe there ron or not when you have agreements that were heavily negotiated through months of mediation well i've been in once of those two counsel well at the end at least under california law i am not an expert on the white law that's that's why i ask whether there's going to be continuing litigation as that point because this is something that the district court didn't reach as i understand it don't let me phrase it this way am i correct in understanding and referring to five point t you rely on that eight was complied with the it was complied with c was partially complied with i believe you are correct there was a partial complete let's put it this way there was partial compliance with section five point two at the end of section five point two the defendant parties expressly acknowledged that this section was material to this agreement and it has been necessary to do so the plane to parties my client to enter into this agreement you could not have been clearer during the negotiations and you know this vague question is the selection is material it's not as of they blew it off they went substantially substantial compliance and failure to fully comply itself is not material to a breach there's no language in the agreement and in the us your opinion is as you 't become a continuum where if one person or maybe two you have substantial place then three then four in this actually gets me to a point that that i wanted to make because of with all the vitriol going back and forth we wouldn't be here but for the fact they didn't comply and then i want to also touch and that they breached the agreement wanted to save time going to close to the end i can see if and then all i'll say is on the records issue and the inspection the one thing that i think the district court should have done what should have allowed my prior counsel the opportunity to make the offer of proof given the vagaries of hawaii law in regard to the mediation act there were certainly there was certainly discretion that's vested in the district court judge to allow her to counter the accusations that were made about the promise at mediation and that should have been done and i'll save the other minute that i have thank you in the settlement agreement is the only integration clause in any of the settlement documents there's no integration clause in the mortgage or the pledge agreements the integration clause makes the of all of the exhibits that are attached to it which includes the pledge agreement includes a mortgage integrity parts of the agreement ok that's us that's a starting point that the district court looked looked at and it we can start there and look at all of the documents to accept that there were no we're clear differences in the cure provisions these were sophisticated parties represented by counsel why can't we look at the document in total  and conclude that those differences were purposeful your your honor and just look at the plain language they well they were subject to paragraph seven point one subsection i in the definition of events of the fall in the pledge agreement there was a similar language mirrored in the mortgage the parties must have intended it that way will just read it and apply the like the plain language of these provisions yes yes your honor i think when you read all of the agreements together that they are consistent on the material points reading makes an argument based on the definition of lo mortgage agreement in the cure provision seven point eleven rome at ten different i'm sorry is different from the definition of loan document in the pledge agreements but the court doesn't need to go to that definition of loan document if it looks at the preceding and i'll get into that analysis so if you look at the more mortgage agreement seven point zero eleven and this is our one sixty two so section seven point eleven roman that two reads and i quote any breach by a defendant party as such term is defined in the settlement agreement of an obligation of such a party under the settlement agreement or any other settlement document so a breach of the settlement agreement is an event of default under the mortgage when you go down to this is no e r one sixty three and you go down  to section seven point eleven roman that ten it says if a default shall be continuing under any of the other obligations agreements undertakings terms covenants provisions or conditions of this the same in the pledge agreements and so what this means is that a breach of the settlement agreement is an event of default that is curable under section seven point eleven roman out of ten so you don't need to get to the definition of loan document in either the mortgage or in the pledge agreement seven point eleven is called event of default the find and if you got the roman at two it says any breach by defendant party and these settlement agreement defines you know so there is  well section seven point eleven roman that too is a provision of the mortgage and it refers to a default breach of the settlement agreement so reading those two together a breach of the settlement agreement is a default that is curable under section seven point eleven rome that ten and that allows the court not to have to get to the language or any other loan document which reading relies on to distinguish the pledge agreements from the mortgage agreement here lies on the note though well the  that's correct they might have a little hesitation there well they each have their own purpose but they but the larger purpose that unifying her purse was subtle additionally if you just complete this whole agreement was there a separate need for the pledge agreement yes there was a need for the pledge agreement to collateralize the note and there was a separate need no that's correct there and the mortgage to back up enough correct so i think the way to look at it is the subtle one agreement is the mother document with the integration cause saying that all of these exhibits that are attached are integra parts of this settlement i mean you point your hysterectomy to the no this is wh this is the focus of our well the breach was of section five point two of the settlement agreement settlement agreement require he was attempting should say he was attempting to invoke the rights under the know well those rights could have been invoked under various agreements but they chose to exercise them under the note which is to advance the balance of the no well that's correct but the breach ultimately that we're talking about is a breach of section five point two of the settlement agreement the failure to do what you're point is the overall market settlement agreement has these various we have these other documents those documents curable well that must also part of the no that can't be well as your honor pointed out it was it was performed in large part and there was a delay on getting i think two more signatures for two other people so i don't know well wait a minute why doesn't that carry through to the overall cost so to speak well your honor i think it would i think that does frame the it's the same issue that we went through with opposing counsel yes which is that under five point two of the settlement agreement almost everything was complied with except two defendants names were missing from that final certification under s district court didn't reach the question of whether the breach was material is there anything left to decide on that question if i'm understanding which fisher's going correctly can i get back to your definition of seven point nine eleven because i want to make sure that i understand your interpretation of why a cure is permissible under that provision your argument is that a violation of the settlement agreement is a provision or condition of the mortgage as defined by seven point eleven subsection two is that correct it's correct but under that reading would be the terms other obligations of the mortgage so if you look at roma now seven point eleven six seven eight and nine those are obligations of the mortgage and i think what the other is pointing out is it's saying shall be continuing continuing under any of the other obligations which then would include seven point eleven roman and two and your honor turning to the second issue on the mediation act the mediation act was effective in two thousand and thirteen the mediation took place in two thousand and nine the statutes are not  evidence during the summary judgment hearing reading had noticed that that was an issue for some time reading had gone before a federal  magistrate in camera on a a matter that was related to the mediation so reading had the opportunity to provide evidence reading waited until the summary judgment hearing very briefly on the last point i think the record is very clear mr broster was asking it indicated that she was concerned about waiving the privilege in hawaii has very strict waiver laws on privilege and so she was asking the court to exercise its discretion and let her put in some avenue affidavits or some declarations once she knew what the judges position was and i think that discretion should have been granted but more importantly let's go back to the beginning the only reason we're here torturing the client look at what was bargained for that was a specific provision put in the agreement was very important to search and destroy your honor seize that in all sorts of of agreements sometimes it's an ip context sometimes it's anytime you're dealing with confidential record that's important but here it was more important and you can see why there was a lot of personal stuff in there and it was specifically made material this is what i don't get after eight months of mediation or however long it was and after the negotiation of all these deals why couldn't they comply why couldn't they comply with our request to get records why why why those questions have never been asked they should have been on top of this and they weren't we're only here because they don't like the agreement they thank you council we appreciate your arguments this morning the matter is submitted at this time