not so much whether the district court erred but whether or not the vanguard group and then card marketing corporation are entitled to summary judgment so i'm not going to focus on the district court erred i'm going to focus on why vanguard is not entitled to some reject you say this is the no because it's entirely legal and its ramifications are correct or not look at the facts you don't care about any facts i don't know absolutely the court the facts matter but california law and they are well based in california law edwards faces jenkins the california supreme court of the day stockbrokers failure to deliver stock when requested by the client  tort it's also a breach of contract but it's a tort it's conversion well how do you deal with the issue of the contracts here that are the court below found that there was no disputed issue of fact about the fact that these contracts sisted the perspecta says the brokerage agreements which permitted vanguard in this case if there was a reasonable dispute not to turn over the fence in the case is your position that there is some factual issue as to whether these contracts govern the case is that your position to begin with yes there is room in the council though it's like we've got some people in the back come and sit here in the front if you'd like to come around here through the side and come sit here in the front so you can participate if your students and folks who want to hear your argument counseling came today question not a factual question whether they amended the contract right well then if they get the yes but then it becomes a question of what the reasonable expectations of doctors can work but before we even get the as i understand it they said we always send these amended notices they go to everyone with these accounts in the normal course they would have been delivered to him we had his address correct i mean why why isn't that enough to show that they sent the contract because that's not what mr who e mailed them to we don't he does not say which is surprising even if nancy in the normal course of our business these documents would have been made so you say we don't so it doesn't say who we sent them to but as i can read paragraph six it says it's the standard practice to deliver copies of vanguard's brokerage vanguard's brokerage account agreement to each investor with such an account isn't that telling us who they send them to know because if you look at his actual words it doesn't refer to the specific documents he's talking about it doesn't say when they were sent and we also have the contradictory fact i can't remember that these documents we don't know when they were sent they didn't tell us when they were sent they didn't tell us if they were sent before or after doctors often don't but counsel with respect and following up on my my colleague's point if i understand correctly it was clear that dr  sign a couple of original documents after that it was all sent in the mail maybe maybe you say maybe but the reality is under california evidence code six hundred and forty one which i think is what the district court was looking at in a uni unilateral contract like this there is in effect a presumption that he got a military can prove otherwise or you can prove otherwise he wrote if there's evidence of his man but isn't that what six hundred and forty one dollars is designed to cover no six says there's a presumption that it's put in the mail it's been delivered how is it not enough to say that it's the standard practice to deliver copies to each investor with the such account when did they do it and why does it matter as long as they did it when they had been some time in the month or so with the new perspectives why does it matter because they didn't tell us when they did it and if they did it after something died it doesn't matter now remember i pointed out is that even true if you have an account with a with a brokerage firm and they continue to send out what they would in the normal course of business not knowing whether dr saul can is dead why would that be any different oh you did you were dealing with a representative of course but  isn't it the same kind of deal a unilateral contract well no because the premise is when you send something the recipient actors all can have the opportunity to say no i disagree with this so you're saying you're saying can died all bets are off any contractual obligations were over is that what you're saying they couldn't change the contract at that point and what do you rely upon for that point with a unilateral contract and a pattern of prayer and practice that shows that that's what they did on a continual basis when he was alive what i rely on is common sense and the principle that the whole idea that vanguard corporation can impose on a consumer new terms to consumers such as doctors often has to have the opportunity to object is that what happens for example with credit cards we get those everybody gets them all the time and says if you don't if you don't object or use them after this point you're deemed to be accepted them a unilateral contract in this case the money was still there they were handling the money nobody objected i was dead but a representative does that didn't claim to be the representative he was appointed by the court as the personal representative for the state he's the name beneficiary of the ira understand it did he immediately say i don't want any changes he did not like i also didn't receive the documents understand that because there was a dispute with somebody else about who was the appropriate representative right well that kind of lease of the next question comes next assume that those contract documents apply now really getting into questions of fact because vanguard relies on a provision that says if vanguard receives reasonable notice of a dispute it can freeze the account inside for a  one that never asserted a claim to the our she didn't call you council is a reasonable notice it's not whether the dispute is reasonable correct it's reasonable notice they certainly were notified that there was a dispute between pollock and out the window while they were clearly on they perceived a copy of a t r whether it was in effect or not there were repeated calls by each side saying it's my money now it's my money so why isn't that reasonable giant corporation who keep saying that i understand it's very popular in a progressive state to say that but this is a court so let's just deal with as a plaintiffs and defendants and ok let it go at that ok nevertheless it's drafted by vanguard they have to make sure the question is what was it softens reasonable expectation assuming he got those documents what was his expectation as to be the court and know that st serve and guard finds out there's a dispute here that's in court about whose money this is why isn't that reasonable notice of a dispute but we also see under california law particularly the mr wall case then guard has a duty to investigate they have a duty to so when the mess or wall case mess or all case the boat was there but there was no other litigation going on and the court says why don't you at least ask the owner of the boat who the boat should have gone to but here there was a litigation going on and they got a notice of a t r o so it seems really different and then they were told to never effective but they were told that by one side on the other side is calling and saying we're going to sue you if you listen the other side made no but your but but but at that point though you're client went into court seeking an order demanding that vanguard immediately release the money and what happened the court said no when i can do it right because that notice the court said there is no showing urgency now i get that require the reality is hard to base your client went to court to say this other party has no right to this give it to us tell vanguard to do that and the court said no i want to send guard supposed to do at that point say o at that time were declining and what the prices decline and then they start going up so at any given day how do you know whether the next day it's going to go up or down that's what vanguard goes they analyze the market they are experts at that i think it's going to be really hard for you to prove th vanguard can tell the future i mean they may be really good investment company but i don't understand how anyone knows on the next day whether it's going to go up or down and if it's going to go up then you're going to hurt your client by selling and it and so i just don't understand how you can have this argument because brokerage should grammont they specifically say that they are not to be whole lot for any trading losses so that might be true if there weren't agreements here under common law duties but they said graeme and supersede the common law duties do they not sit for the next case and we will we will now hear from vanguard and then we will wait with anticipation for the discussion of the splitting gave vanguard the right to do what it did here where where were the contracts and you haven't produced the contracts that existed in one thousand nine hundred and ninety seven when he opened the account correct they are not part of the record you are no because those were in effect at the time we did contracts govern let's remember about the here that he also filed a breach of contract case so where the contrary i mean i think what we have here is a little bit of a shell game going on is do you know where is the contract we provided the contracts that govern here and there's no reasonable dispute about that declaration that describes how these contracts are sent is actually fairly vague so is there a reason why there aren't really good records about when someone was mailed a contract that governs their account i was surprised that vanguard couldn't have given a better declaration perhaps they could have put more detail in the declaration but it wasn't reasonably in dispute that these are the account agreements that govern so i mean in the beginning of the case when a motion to dismiss was filed we submitted an affidavit saying these are the governing counting grievance they conducted  no discovery at all to undermine that point so i mean from my perspective from the beginning of the case this wasn't really an issue that there was a when when a dispute about here he's arguing these aren't the contract we never got them was that not argued in the district court it was no argued until our their response to summary judgment your honor i think they all they did remember they didn't provide any evidence they just provided a bunch of boilerplate objections which is a beaut which is reviewed by this court under abuse of discretion standard and clearly the district court did not abuse its discretion in finding that these were the authentic contract documents of government today they still can't tell you ok well then what is the contract that governs it's these documents and these documents gave vanguard the right to freeze an account if there was reasonable notice of a dispute  o the side for a moment what judge freeland talked about in terms of the market going up and down the term freeze in this context is not exactly clear as it i think it's clear what i mean it means  court action to describe exactly what he did i mean it's there is no jury question as to what phrase means here your honor ok for that bottom line is your stand if there was any question it would be up to the jury to determine what the contract meant is that what you're saying now i'm  saying is a matter for the court to decide in the st instance if the contract is and they give us the con and it is not ambiguous what freeze means freeze means that we are not going to let access to the account when there is a dispute which is actually what happened to you you have any case or case that came out very recently we didn't cite it in the brief because it was unpublished but there is a california case involving a bank that and its limits that lays out case defined freeze not allowing access to the account when there was a issue that that that the accounts are not allowed to spur this basically you could do whatever you want to with the account you just couldn't allow them to have access to it we wouldn't allow distributions from the account to either party until the dispute was resolved and allowed to do naked shorts that's that's the reason why freeze is meaningful in this case because you could do it well we couldn't do anything with them and the these sort of but for world that they postulate here that we should have liquidated all of the assets and then is makes absolutely no sense and that might have actually given rise to a breach of contract claim and it's interesting that in their own brief on page sixty four when they're talking about unconscionable they say that liquidating accounts would have horrendous tax consequences so if we liquidated the accounts i imagine would be here on the on a different plane if and you know on the interplay to point we don't have a duty to enter a plea because the contracts don't require simply that's why we have them are these in your view unilateral contracts they they are unilateral contracts in the sense that they are not negotiated with the with the customers of vanguard which again there's we cite a number of california cases and every those are perfectly in forcible and even if it's technically and he's in contract it's not in control what the terms are and reasonable this isn't unreasonable it protects the assets so that they will go to dr salk and intended them to go to and there was no issue about unconscionable lety rights below curry was late they didn't raise it until i think their st or nd motion for reconsideration bill so because the contracts gave us the right to do what we did that's the end of the case that contractual justification now that the district court relied on the economic loss doctrine if the economic i ira account because if one they were notified of it's a dispute about the will or whether there was a trust and the ira account couldn't really be affected by that anyway then how is the ira account really in dispute we had a t r o telling us not to original t r o the nd order where they went in seeking authority from the court to authorized us to release the accounts which was denied it was in there it was in december it was being discussed all along it was indeed the ira there was a claim to the ira and it's not  the nd the october efforts to authorize vanguard to release the accounts is now there's no immediate irreparable harm because the assets are safe and secure at vanguard if they thought there was an issue with the way the funds were invested they probably would have raised it then they didn't raise it until the market decline do we have to to affirm the district court rely on the economic loss doctrine or can we simply rely on the contract well i don't think that this cordon is the weight into the depths of the economic loss doctrine i think it's contractual justification a said if the economic loss doctor means anything it means that a duty in tort cannot supersede a contractual right and as we argue and of receiving if there were no contracts i don't think they've established conversion or negligence and on the conversion point under the i always have trouble pronouncing the jacqueline scase if there is a dispute over ownership it's not conversion to make a qualified refusal to turn the property over until it's been resolved this was being actively litigated and on the negligence claim there clearly is no duty to predict the future of the supreme court the united states said that in the didn't offer case and that was a fiduciary duty case on a motion  turning over the money not i mean that was one aspect of the negligence the only asked for it you should have given it it was which is different from the claim of the rights of the scope that's it's contradicted by the contract and any  independent now you're talking about assuming there were no contract you were making the argument that there's still no negligence like conversion right and i would argue that as a matter of law i mean you don't need to reach this issue but as a matter of law it is not unreasonable or like and i guess shortly thereafter the other claim and the time that the t r o was shot by them to have you turn it over i'm sorry that the old ones if you want to read it over time occurred so the t r o was entered and i think late july two thousand and fourteen and then we immediately received a letter from al did wonders council threatening to sue us if we released the money and providing us with a copy of the t r o then in october they went into court for an  its title authorizing vanguard to release the funds which was denied awfully three months four months something like that between those periods i think that's about right from the from the time that there was st notice of a dispute which was and i think july until the money was released in march whatever that is my math is a record reflect what losses if any had occurred during that time in the account of the market the market loss now i'm not i honestly i'm not sure there is evidence in the record of what that was but they didn't offer any evidence on camera judgment or than an affidavit celt i mean i will stipulate that there was some loss but it was unpredictable right unless the court has any further questions i think not well thank you both so the case just argued is submitted and we will