icon fred siegel sold his retail center on melrose avenue to the brown family for seven million dollars several years later approximately four years later my client cormac hill purchased that property for forty three million dollars the parties before you today are not the parties to the license agreement but rather their successors and interest to those contracts my client is the owner of fred siegel retail center and the plaintiff here although named fred siegel al c is actually not fred siegel the man it is the subsequent licensee that received the license rights under that agreement there are three primary issues that i would like to raise in connection with our appeal and all of them center on the construction of the license agreement that's primarily at issue with this in this appeal st and foremost an issue that is critically important to the construction of this contract but that is not disputed on appeal is that that license agreement between the browns and mr siegel has not terminated as the district court concluded it did not and when the browns sold their property in fact it is expressed in a written to survive a transfer even a transfer outside of the brown family by its express terms it perpetuity to the extent permitted by law so long as the center is used by the licensee or the transfer of the center pursuant to section eight point one which i'll get to in a minute primarily for the sales  retail sales of fashion merchandise and that's section six dollars of the license agreement accordingly the district court ruled that the agreement did not terminate upon the transfer of the melrose center to my client cormac hill and that will transfer is outside of the brown family and thus it has not terminated so the question then focuses on what rights if any does my client cormack you'll have and the plain text of section eight point one provide the signs will stay up if the transfer my client is not a member of the brown family as we explained in pages fourteen and fifteen of our reply brief the pertinent section of a point one really has three key clauses and it provides in full if the transferee is not a member of the brown family clause one the individual talent tenants shall retain all of their rights with respect to the name the name being fred siegel and cla two none of the signs in or about the center shall be removed as a consequence of such transfer but and this is cause three such transferees shall not succeed to the rights of licensee here under rights are very limited your honor the need to be clear we have not argued in this case or in this appeal that we have broader rights and that respectfully is one of our primary contentions on appeal with if you look at what is the scope of your rights as compared to the license very limited the browns had broad rights to use the name as provided in this license agreement our client cormack hill only has the rights to maintain the exterior signage on the fred sieg and the signs isn't that directly related to the tenants rights not the transferee right it's not your honor and here's our primary contention appealed that's not what the language says it's it is can john that is the way i read it as it says to me  comes into play section six point one in perpetuity but only so long as the center is used for the retail sales of fashion merchandise so for example if it became a parking lot or something else then under the pe terms of this agreement my client would not have those rights because the license agreement under its express terms would have terminated under six dollars so the whole agreement goes away without the agreement there is no right to maintain the signs for non brown transferee if i get turned back to judge ward last question the reason why your honor we think the use of the conjunction conjunctive is significant is because it's setting up two separate clauses st of all in several places the agreement makes clear have the rights to use the siegel change and and that was part that was contemplated in this agreement that the tenants rights could outlast a non brown family transferees rights that that's correct your honor except we need to distinguish between the tenants rights to sell merchandise fred's siegel branded merchandise is important to remember the history of this property mr siegel started i dollars to sixty one dollars and one dollar excerpts of record fifteen dollars sixteen cents those are the tenants leases that are in the record not a single one of those leases gives the tenants rights to exterior signage and so therefore in order to read this contract in and its whole provisions consistently with that what the st clause refers to is that the tenants rights to sell merchandise or to use the name for other purposes for example there's evidence in the record that mr robinson's door had a fred siegel logo on his front door and that was as of the hearing on summary judgment in december of two thousand and seventeen and so that's an example but that is not exterior signage ok that's why that nd clause and none of the signs in or about the center shall be removed as a consequence of such transfer must be independent because at the time and even today the tenants had no rights to those signage and it makes sense this was an iconic historical building it makes sense that mr siegel would want his building his retail center to survive the transfer outside of the brown family and again to be clear my client claims no rights broader rights that's another error of chief judge phillips he concluded that by allowing my client to maintain the signage it would sometime somehow have broader rights than the browns that's not the case we cannot sell fred fred c well branded merchandise we could not use fred siegel in marketing or promotional materials but however this agreement that mr siegel executed and the record evidence we think that the contract is clear you don't need to resort to extend to cabinets but judge phillips ruling specifically cited evidence that we submitted that when this clause an eight dollars was added there was additional consideration for it flowing from the browns additional five hundred thousand dollars for this provision and the rd cause an eight point one that i didn't get to is that such transferred my client the non brown transferee shall not succeed to the rights of licensee here under so that's a critically important limitation on this clause and why we do not have broader rights we bought the building with the signs that's all we get under this agreement nothing more but nothing less and so that's section eight dollars in the use of the exterior signs equally important to my client is when this agreement was amended there is a express radius provision or radius restriction and this is in paragraph three of the st amendment and this provision expires explicitly provides that license or mr siegel agrees that during the term of the license agreement there shall be no other fred siegel buildings within a three mile radius and that's exactly what's been violated in this case shortly after judge phillips issued an early ruling on a motion to dismiss in this case the plaintiff here constructed to sign another fred siegel branded store within that three mile radius and although that issue was given very brief attention in the district court's ruling it's still extremely important to our client because they paid forty three one million dollars ok six times what the browns paid only fifteen years earlier for this property and now there's a competing center within that radius thing about the issues before you today is that the siegel family and the brown family created an extraordinary record of what they were agreeing to and what the gree meant what their intentions were the district court correctly found that cormac hill is not a rd party beneficiary of the license agreement the contracting parties made it absolutely clear that only the brown family would have limited license rights and only quote to the extent the brown family owns and operates a center that's at page two paragraphs three dollars of the license agreement non brown family transfer and that it has no rights as a licensee but it contends that it should have greater rights than the licensee as a rd party beneficiary power the rights contends it has greater than the brown family rights so  when the leases and when the the lease is at the facility ended there'd be no more rights for example the brown family didn't have the right to enter into new leases giving them rights or when those leases expired without any extensions those leases would and no tenants would have name right and when the brown family transfers to a non brown family transferee it loses all rights under the will be able to maintain the fred siegel sign on the building forever and the browns never had that right so the rights are more than what the browns had to begin with and certainly that the retain all the rights with respect to the name and none of the signs in there about the center shall be removed as a consequence of the transfer so your reading you want to link that together as tenants rights but if the record suggests that the tenants rights were always meant to be independent of the signage on the building doesn't that then be couple the two phrases eight point one that councils relying on you know and the reason or right is that it's very logical  the tenants had rights in their own leases to use a fred siegel name on packaging and gift wrap and they could use the name on the store they could relate to the to the world as located family and the brown family were concerned that once the property if the property was sold to another family transferee and there were still tenants in the facility that had name right it wouldn't be fair to take those signs down so the languages that the signs don't have to come down as a consequence of the transfer re the transfer to a non brown family transferee but it doesn't mean that the signs have to stay  it just means that nobody's going to force the non brown family transferee to take the sign down if there are still tenants with name rights that's what that language  means and if the agreement has to be looked at as a whole you can't look at one term in a vacuum the party who were very clear about what they were doing nine brown family transferees had no rights there was no license you can have a license without a license see and the argument that is made here is that the radius of laws attaches to to the property forever is completely inconsistent with the language of the agreement the radius clause is part of the license rights of the brown family the brown family paid a lot of money for that radius clause in an amendment to the agreement and it that radius clause attaches to the license rights once the brown family transferred the property to a non drug family transferee it lost all those rights and that there's no more license and there's no more licensee so it doesn't make any sense that the agreement last forever it just doesn't make any sense under the language of the contract center using the fred siegel name thats it that was the purpose the motivating purpose of the agreement there was no motive and purpose to allow a non brown family transferee to have any nobody would have expected that that was not an expectation of the agreement of the contracting parties in fact for much heller and family transferee is nowhere mentioned to have any such rights whatsoever as presents all kinds of issues to the district court facts well influence a court's interpretation of the law interpretation of the rules to apply and undeveloped records of facts change as as time goes along and when a court a district court denies a motion for summary judgment all it's saying is you haven't proven your case there are the facts in dispute or you don't have enough and you're going to have to come back and do a better job at tr case because summary judgment by definition is based is not based upon a fully developed record and as i said the denial of the motion only means you'd better do a better job and you're going to trial and evidence in the record is incontrovertibly that only the single family and the brown family had the right to extend name rights at the expiration of the leases the browns right to do that ended when they transferred the property to a non brown family transferee but the district court citing flash car decided that she had already ruled on that issue of law even though  that the ten has a right to extend and then if they do that the extension is governed by the same terms as the prior written contract so the distinction here is a fairly easy it is true that a california law presumes that elana gordon tenant can can extend the lease as long as both of them agree to do that and they can extend on a month to month basis the problem here is a little different because while kill could extend the leases which we never opposed what it can't do is extend the leases with name right well but the lease is themselves contain says that only the browns can extend the leases with name rights or the siegel's but no one else so there is there is nothing to allow a non brown family transferee to extend name right it can extend the leases but not the name right if that were t the case then the language in the agreement would be meaningless because that would mean that a now non brown family transferee could extend the month a month leases forever and the signs on the building would stay up for as long as they wanted to do that and that's not what was contemplated by the agreement at all only the brown family had the right other than the single family to extend name right and when the not when the brown family transferred to a non brown family member those rights disappear and he could not extend the leases with name rights and that's why and the court didn't have that evidence in front of her because she didn't really look at the side letter or agreement of the license agreement anyhow i mean after all those agreements are in the record right they were in the record but for a completely different issue that the rights could no longer be extended and the court found at that point in denying a motion for summary judgment that that issue was not right and that is  twenty four so the court itself found that that issue extending leases was not right based upon our motion leaving that motion the plaintiffs said ok well we didn't do a good enough job to convince the court but certainly that was not a rule a law of the case decision and the interesting thing and i'd like to point this out this is in footnote six of our of our brief when a district court in connection with with a summary judgment motion wants to take something off the table whether it's a rule of law or fact it has a procedure to do that under rule fifty six  dollars it can take something off the table it will provide notice to the parties and it will it can resolve that issue in connection with a motion for summary judgment and that's why the case is not really necessary a necessary tool in connection with the denial of a motion for summary judgment because there are other p c jurors that a district court can follow to take an issue off the table if it so chooses at the time law of the case a lot of the case doctrine doesn't make sense in connection with with the denial of a motion for summary judgment and i think the court in peralta recognize that and therefore there shouldn't really be any exceptions to the the doct this very briefly on carmichael's main appeal mr russ made three points that i would like to address st of all he claimed that car max hill's rights would be greater than the browns if you agree with our interpretation of the contract that is not true the record evidence proves that's not true we cannot sell merchandise we cannot use the name in or about the center except in so far as the existing signs need to remain we could not put up new signs and that is a critical difference this license agreement grants the browns certain limited rights to use the name in fact the license agreement does not allow the browns to use the name in cyberspace for an advertising but that does not mean that the license agreement is limited only to  that is completely inconsistent with section three dollars of the us under your interpretation do you have the right to veto use of the name within a three mile radius well we have the right to enforce that because the the amendment is clear that for it's in perpetuity but that's the nd point that mr ross made that i'd like to address he said that we can keep the signs forever not true mr siegel was very clear that the non brown transferees rights are only in so far as the center is used for the retail sales of fashion merchandise so if it becomes a business park it becomes a parking lot a gas station the license agreement by it so that unlikely in that area on melrose unlikely on it but there are many many many other uses in the surrounding area there are not retail sales of fashion merchandise so again mr siegel was very specific he would allow the signs to remain but not in perpetuity full stop in perpetuity only in so far as it's used and my client may very well decide to develop the property in something else for example if it's a retail store that's not fashion merchandise you can't call it the fred siegel record store or some other retail establishment the rd point is he said that this we need to understand why this actually makes sense because the browns were not just purchasing this property a random piece of property on melrose they were purchasing an iconic location and they purchased that knowing that at some point they may sell outside of the brown family so this was specifically negotiated five hundred thousand dollars additional dollars for this provision and guess what they realized that a six times profit on the center fifteen years later when they sold it to my client so it was very significant but isn't it significant that the language of the radius agreement provides that the licensee has the right to enforce sort or i guess we told to use outside three mile radius and you didn't take on the rights of the licensee so i have a hard time kind of reconciling that against just the one provision you're relying on which yes that signage in the building shall remain up and your honor we focus on the earlier term of the amendment which states and it's an amendment to the license agreement which states that as long as the agreement the license agreement has not terminated and that's what we are that's what we're really relying upon here and i would like to know that even if you stephen if you decide this aggregate the signage provision an eight there anything in the record that could shed light on why there was this condition of the transferee remaining a member of the brown family is there anything that shows is there any relationship between there is your honor i'm not sure if it's in the appellate record but i can tell you having worked all of us worked on the district were proceeding the browns i believe were mr siegel's insurance agent but they were also family friends and so there was this critical important distinction there was a relationship and so perhaps there was additional trust when it was being sold to the brown family that even if it wasn't mr brown himself if it was one of his errors or someone else within that family there would be broader rights given under the license agreement so in other words and this is another point in perpetuity if mr brown continued to sell and continued to keep it within his family mr siegel appreciated that that might go on forever and that's why you have this condition that it still must be used for the retail sale of fashion merchandise ok that's a critical important distinction once that ends the license agreement by its own term terminates and that's why i started with it is not an issue on appeal that license agreement remains in effect today by its own terms you're over your time did you want to respond to that district court and the cross  ok so we prevailed on summary judgment but now we're going to argue that the tenants no longer have any rights that's just completely inconsistent and her ruling we need to remember there were actually two different motions before her she decided them and one ruling there was the motion to a it was actually plaintiff that sought to amend its complaint to make a new argument with respect to tenants and judge philip said that the deadline to amend had passed eleven months earlier there was no effort to amend the scheduling orders that was ruling number one ruling number two was there was insufficient diligence down at the very end she said and by the way already construed this contract in a way that you urged plaintiff the law the case statement is a thing is a throwaway line respectfully at the end it's dick day wasn't the basis for her ruling but what does that mean if you were to reverse and say it's legal error to apply a law the case to a summary judgment ruling it's the same contract it's the same interpretation whether you call it the law of the case or something else it's a distinction without a difference and the final point i would make is mr russ claim backdoor way of rewriting the license agreement away judge phillips rejected that we my client could extend the month to month tenancies forever that's not the case ok there is a financial condition on this again number one if it's not used for retail because in fact it's making the tenants it's were difficult for the tenants to compete tenants which may or may not and i should be clear today they are not selling fred siegel branded merchandise but at the time of the license agreement they were and it would actually frustrate those tendencies if you allowed a competing store within the three mile radius so there are multiple beneficiaries of this contract and under that scenario but my point is we couldn't continue month to month tenancy as forever there would be some market rates being paid for a prime location on melrose avenue so the notion that it would just all allow us to backdoor this well that's a risk that mr siegel took when he if you're going to construe the agreements providing rights in the tenants thank you for the additional time all right thank you