misunderstood what the complaint was in our first amended complaint the procedural history of this case got the district court off onto a unusual track because the original complaint filed by the original counsel had essentially said that the employees were not being paid properly under the c b a that attorney was then discharged i was retained and i amended the complaint to make a completely different claim from what was originally amended complaint does not depend on the c b a in any way shape or form it exists even if there was no c b a it's a claim completely under california state law and that is that we have alleged that these charges which are called both service charges and gratuities to customers as you'll see in the appendix eighteen are required to be paid to the employees in the fall no portion of it can be retained by the hotel no because the original complaint made allegations so if they were factual assertions i agree there may be some a stoppel against our changing our statement of certain facts but if you look at the original complaint if you look at the amended led to this dispute is what led to these employees hiring counsel who essentially made a claim under the c p a in a court lawsuit i came in and said you can't do that that would be preempted we made a different claim under state things are are not covered by the state law well yeah i understand you say they are but it could be that these service payments are actually not quite chilled is for purposes of the state law or an act we're not there but that's the marriage that we haven't even gotten the hotel may very well try to use the c b as a defense to our claims i don't think they'll be successful but even if it were a defense that does not trigger three zero one preemption because of the union the hotel  likely to say look at the contract the contract says twenty five percent can go to managers seventy five percent goes to you all we followed the c p a i'm saying that state law doesn't allow the hotel to retain any portion of the charge or pay on it as part of its defense and that would be a whole other issue that could be litigated whether or not and i don't believe it could but whether or not the union could waive the employee's rights under the state law whether there is was an  and again under the case law even if and i'm not saying the court would need to but even if the court need to consult this to see if there was that unmistakable waiver that would not trigger three or one preemption either it would be a defense it would be merely consulting it we're just saying we don't care whether the c b even exists we're saying these are going to it is under three fifty one they must be paid in full to the employees and the fact this dispute originally rose because some busters were upset about how coffee breaks were being treated under the c p a has nothing to do with our complaint as we pointed out the briefing this exact type of claim has been brought and address in hawaii massachusetts and new york in all of those cases cited in our briefs there were union hotel employees or union employees who are making claims under state tips laws similar to the california labor code three fifty one  and in those cases they were unionized employees and the defendants who are arguing the employers who are going to look at our contracts were allowed to do this this raises this requires interpretation of the c p a there's three zero one preemption here and in every one of those cases the courts rejected that and said that there was not three zero one preemption the district court here just disposed of those cases without even looking at them at the bottom of page nine of the decision of the appendix eleven said however plaintiffs fail to cite any california cases or cases interpret in california contract law to support this theory this is not an issue of california law this is an issue of federal law the alamar a section three of one preemption there's nothing that california contract law would have anything to do with this question it shows that the court just completely misunderstood what we were saying and if you look at earlier on that page of the decision on page nine of the decision the court cause of action alleges the defendant failed to distribute the total amount of gratuities on the sale food and beverages that it's hotel from banquets events buffets coffee service and room service the court must interpret imply section nine of the c v a well that would be to determine whether or not the hotel had properly distributed them as a c v s requires but that's not what we're claiming he talked about whether they were paid the appropriate amount there may be one appropriate amount of the c b s a again not what we're seeking but what we're seeking is the appropriate amount under state law and so our case should rise and fall over under whether i'm correct whether the plaintiffs are correct that state law requires the total proceeds of these charges to be paid out to the employees not retained by the hotel and not paid to management in its briefing the hotel tries to get into the merits of the case somewhat saying that we don't have a claim under california law under three fifty one because these were mandatory payments and only voluntary payments would be covered again not to merits issue that's just simply not before the court now that yes one question suppose we agreed with you have considered whether or not it should have exercised its discretion to decide whether a case was far enough along that it made sense to keep it in the federal court or whether it should have remained it to the state court but it but it's true the removal was proper i believe at the time because of the state of the complaint but also courts have allowed plaintiffs to amend their complaint to remove the basis for removal and federal preemption under three one as from the jurisdiction but essentially creates a supplemental jurisdiction situation it is essentially supplement even though there wouldn't be any federal jurisdiction at the time because there is jurisdiction at the time of the original removal it's within the district court discretion as to whether or not to retain their jurisdiction to your honor satisfies the concern about the technical defect in jurisdiction the parties agreed to that everyone understood the case to have been over in the district court at the time so i'm hoping hopeful that  tend of course that it does to fully understand why it does i believe it is important to look back at the original complaint and partly right because it's the original complaint and the documents that stage and shows that the underlying dispute here really did start and continues to be at least in part this issue of whether a coffee break is a banquet or a buffet but what facts were admitted in the original complaint isn't ms lease wording correct that there was an allegation of violation of the yes but that's not a factual admission it is not a factual admission where the factual admissions in the original complaint i don't know the factual and i'm not contending that the factual admissions in the original complaint are necessarily relevant other than the fact that they were pleading a claim under the clock to bring to me what i am saying is that  for service at the bank at the at the hotel i understand the employees are supposed to keep that and not have to get tenure but yes now you're saying that that may somewhere along the way what is one of the subcategories of that will be these coffee breaks and what difference does that make either they're either right that these are service that these service payments are covered by the state statute or they're not many other cases that if you just look into the collective bargaining agreement for some numbers that's not going to matter i would agree with that that's that's absolutely correct however that's not what we're dealing with here going to be very specific because honestly i don't understand what your argument is absolutely be happy to the the issue of the coffee breaks is important for this reason i think first of all we don't believe the plaintiffs are saying that the issue of coffee breaks is not something they are seeking money is a coffee break the bank would or a buffet and we have to look this up there yes or why because if the issue is whether the money is going to the right people it seems to me the complaint touches upon the money for each of those and it whether it's banquet or buffet the plank is claim is that state law requires the money to go to this group of people and the hotels practice divergence from  why does it matter whether a coffee break falls on one side of the other if the complaint covers the whole universe because the way in which the coffee breaks are treated are different under those two sections  collective bargaining agreement and so they're claiming for both so why for this purpose does it matter which side of the bank what buff a line coffee breaks are placed they claim they are being shortchanged on both sides well your honor the fact the matter is that the language of the collective bargaining agreement is admittedly goes a little bit both what's it talks about gratuities and it talks about service charges and under section three are we talking about something which implies are we talking about the section that refers to banquets referring to the section of buffets all of these are questions which without answering we don't even know if there's a violation to begin with that depends on stand off because their position is in any event there's a violation of state law and certainly implicated your honor i would doubt that i mean the can't can't get around the fact that there is a state law question here but there is in order to reach the determination of whether there is a violation under that state law one house to look to the collective bargaining agreement in order to reach that initial that going to trying to figure out is your contention that the collective bargaining agreement can supersede the requirements of state law not supersede your honor no i'll let you try i suppose california has a minimum wage law twenty dollars an hour and there's a collective bargaining agreement that provides for fifteen dollars an hour and the collective bargaining agreement have the effect of saying no state law so fifty no don't know twenty dollar minimum no don't lease or so here we have a state law that speaks about how the money in this category and that's going to be a big fight what's in that category but the gratuity category where that goes could the collective bargaining agreement alter that if if if if this contract spoke using the same language gratuity and sad way of the statute says gratuities all go to this group of workers but under the terms of th a twenty five percent of the gratuities are going to go to this group of workers instead in this group want to get seventy five percent would that supersede state law that would not supersede state law your honor but that's not  i understand that i'm coming up to that so what but understanding now that the state law is going to be there and you're going to have a state law claim separate and apart from the c b a what is it about the collective bargaining agreement that important is that because the statute that plaintiffs are seeking relief under refers to gratuities and because the collective bargaining agreement refers to gratuities and service charges and yet plaintiffs are claiming that they are entitled to monies under both of fact i mean in this is one of the things that the plaintiffs say i mean eight it may be that they're all covered by the state law that's their own position that it doesn't matter which it is ok secondly if it turns out it doesn't matter which it is then you can go to the actual receipts for all these various events and see whether they were treated as essentially voluntary or mandatory charges and whether the c required it or not is just immaterial you just look and see how it was treated respectfully disagree or not and this is what bothers me and i have a feeling that there's something at the core of what you're saying but i can't figure out what it is you just haven't managed i mean it's to give us any concreteness as to why one would have to look at the collective bargaining agreement to resolve anything in this case i mean there is the legal question does it play  which and if it does matter whether it's quote unquote in the voluntary sense or not then you can look at that at the actual om bills for the various and then you don't have to look to the c b s so when you have to look at the ok let me go back to that question and judge clifton asked the same thing which was not doing apparently a good enough job in explaining the coffee break issue so the coffee break issue is that under the banquet section it refers to service charges it does not refer to today's under the before right before the coffee breaks that actually a curve yes you charge whatever you treated it however if you want to know how you treated it you can look at the bills and see how it was treated right it was either on there is a service charge man or it was added as a voluntary tip i don't know that's not what they're trying to find them well i think that goes back in part to where i started which is that i believe it is important in order to inform the court's view of the entire case to understand its genesis which was this coffee break issue plaintiffs here are trying to plead artfully around the collective bar you know they've abandoned it they're allowed to abandon it i mean at this point they're saying look even if you did it wrong to do the c b a we don't care we're not trying to recover from that mistake if you made it well there are i don't believe that the courts have been as generous as allowing them to simply abandon if you if you one were to look at the history one reason was they had stacks files completely new case then what of that have been ok if they were to file one that's not where we are but if they were to file a complete new case we would have to look at their pleadings we'd have to look at what the the that in order to and we're trying to find out what the basis of that argument is very cause because the past history about coffee breaks at least so far had an impressive as that might have been then this is now what is it about the current dispute based on the state this court bus of which i wrote and maybe they've clarified things and maybe he would have said the same thing now perhaps but you know when you look at three zero one preemption your honour's i think it's important to remember it is one of the broader preemptions that the courts address and it is its purpose is to keep intact the sanctity of the collective bargaining agreement and to give the this notion that we are not talking about the merits is is not true we raised in the court below that this was not a through the three fifty one did not apply here and  not decide but i do believe it is appropriate to raise at this point and we did preserve it at that time so and for the reasons stated in our brief we believe three fifty one does not  want to take a break right at a short break right after this play i hesitate to add anything but just to just to crystallize i think two points the hotels argument is essentially that substantive question about whether or not these are gratuities covered by three fifty one or and said mandatory charges that they say fall outside three fifty one they're saying you have to look to the c v a to see that and that's just not correct because the issue is as we have alleged our complaint whether these are gratuities under the state law which would be whether reasonable customers would understand them to be gratuities but if the state if under state law it were to turn out said we agree that for these purposes gratuities means this and service charge means that service charge includes things that aren't that go beyond what is covered by gratuities charge and our merits argument when we get to it is going to be that reasonable customers understood this to be a gratuity it would be absurd under three fifty one to say that something that reasonable customers understand to be a gratuity in fact the hotel here even calls a gratuity can't be a under three fifty one whatever the hotel agreed with the employees union about that has nothing to do with the question is going to be whether reasonable customers understood they were paying a gratuity and this type of case comes up all the time in both the union contacts and non union settings where there is no collective bargaining agreement and you look to what the reasonable customer's understanding is of a charge home and whether or not it's a gratuity under the law and that's what we're saying is the case under california law like it's been understood to be the case under the laws of these other states that have gratuity statutes hawaii massachusetts new york so again i and i disagree  fifty one to the extent that argument got interwoven into the briefing we did put in in brief our response to that but that's merits issue that we believe is going to need to be sorted out once it's been established where this case should