counsel good morning  is the real issue in this case which has been framed by the parties but i'm going to read from the introduction of the response which says it is black letter law that a party who benefits only incidentally from a contract and it was not an intended party taking that as the standard there's evidence that that's exactly what happened this case for that i would like to address the court's attention to a number of the exhibits that were attached to the initial complaint and also the first exchange program and unit it points out what is well known and that is the cal tech says the only authorized manufacturers and february seventeenth two thousand and ten through the present day authorized to manufacture some really clear evidence that the contract was expressly intended to benefit your client and i don't see it one of my missing well if you  the document that was prepared by lockheed martin and in particular this is exhibit preached well two things first we don't have a copy the contract which is one of the problems in this case but what we do have suggested that's exactly what the case is going to the document that i just got a fight on the last page of the you are suing up on a document that you to say exist but you don't have it so you want to sue him cute the existence of a right in a document that we cannot see is that what you're asking i don't what i'm saying is if you take a look at page twenty eight where they have the military or the material specifications it specifically calls out what is required well i understand again if it's really clear that the government wants things packaged in a particular way it's also clear that your company is the only one that manufacture that but that's a problem between the government and locky if they don't do it correctly the government can sue lockheed say you know you didn't comply with our specifications that's quite different than saying that cal tech's plastics has a  separate enforceable third party beneficiary right to sue lockheed martin and this help me with that one of my missing well i'm trying to explain it ok if you take a look at the last page where they talk about the military specifications that are required it actually calls out the name of the company in this particular agreement says quote you're going to bring products and so my point and one of the problems that we have is we didn't have the contracts but we do have other outside facts but i'm only addressing your point and the point that i would make is maybe that those contracts that they have with these required specifications in order to satisfy the government standards would call out for asterix we don't know so can you enforce that hypothetical right on something that you don't have in front of us well the answer is that yes i think we can because of the fact that we have to be a third party beneficiary of that only because there's no other entity that could well in that incidentally you clearly are there's no question about that the question is is there any express intention that would say in essence if like ian martin doesn't comply with this cal texas plastics has the right to enforce this country no there's no such right is that what the right is different what the right is a government requires  type three to be used there's only one entity that can supply that and so therefore if that's the only entity it's not in and it's not a situation where it's a general beneficiary that could be in a category of a lot of people it's a specifically intended benefit  doesn't it still doesn't say there's an in for civil right though that's called on your part that's correct that's your problem isn't it well that's what a third party beneficiaries designed to give you different kinds of third party beneficiary and there's your clearly your company is clearly incidental beneficiary i don't think anybody disputes that but under under the law we're talking about you have no ability as an incidental beneficiary to enforce if you require lockheed martin to use your packaging to comply with its contract with the d o d or any other governmental entity correct except our position is it's an intended beneficiary only because of the fact it's the only one that could do it if you have any case law sorry but just t business in making an equally good back could you mature because they have to go through the department of defense in order to get approval and the reason they have to go through the department of defense is because there are certain regulations requirements to stop the packaging the items that are packaged you know from degrading and ever make a brother think good because you know order for the company to make that product it has to be on the qualified products list and the only way you get on the qualified products list by the government is if you comply with government regulations and there's only one company that's done that w you have today so unless there's something in the contract that indicates they intended to benefit your company why are you not just an incidental beneficiary but i suppose the answer to that is it would be then a member of a class  intended beneficiaries if there was more than one but here there's only one so what happens in the future may be good it gets changed but as at the present time that we have it's the only company that's authorized to manufacture the product when if there were two companies following my colleagues just if there were two companies would your cause of action disappear forever would likely do it with so your your whole argument hangs on the fact that since you're the only entity that makes this approved product at this time that at the present time you have a cause of action because you could have your the only one that could have possibly been the intended beneficiary there right that's correct you know does that pose any difference does it pose any problem to you that if that is true what you say is true  i just named your company we didn't name walk you know understand what you mean i'm sorry why wasn't your company just named in that instead of describing describing it this describe what they what you must have as manufactured by in other words at the moment it's open ended and the question to you was with an open ended can anybody fulfill it using only one company at the time could fulfill it but that could have been another company that could be another company if the contract doesn't specify you it's the question at least you can tell me whether it's true or not but i think you've got to get yourself away from just an incidental beneficiary so that you would be the intended beneficiaries but i think here is the answer at least from my perspective maybe not from yours but here's the way it works  government wants certain requirements to be satisfied if a computer chip for instance is packaged in a product that is not military specification and something goes awry with it and you put in a missile you've got a big problem so in this particular instance what you have is the only way that you can be authorized as a manufacturer is if you get the department of defense to approve it and you're on the q p r so there's on nobody who's looking and the contracts themselves require certain specifications as i just identified in this sheet over here which where it says you need m i l p r f eight one seven zero five so if you go on the q p r list there may be lots of people that do lots of different things but not for this specification there's only one company that does his specifications thats it so yes your honor is absolutely right in terms of my interpretation ok so clearly i get your point  beneficiary claim number one and number two as we've said in the allegations of the complaint the government doesn't have the financial wherewithal to go after all of these things to find out whether or not you agree that we would be making a new law were we to buy your argument now what we get your position yeah we do ok folks from akim with or without monster drinks i suppose i should ask you know now karen it please the court fred really jr for lockheed martin corporation i'd like to start out with judge smith's question to my friend about what the crux of the theory is and my friend responded that the crux of the theory is that they were sole supplier the problem with that theory is that whether you apply california law or federal law and i think judge anderson got this right that's not enough under the restatement that is followed by california law the fact that you've got a sales contract or a contract for services that calls for the delivery of of a product that is provided by a third party that's not enough to make a party intended third party beneficiary it could be enough to make them an incidental third party beneficiary but it's not enough to make them an intended third party beneficiary and particularly under federal law and this court's precedents which require a clear statement that that is what the principal parties intended it is not enough that a third party is the sole supplier of a good or services that is a good or service that is required for one of the parties to comply with its obligation and the contract is judge anderson observe the purpose of these military specifications which is as calte concedes are very important is to benefit the government the purpose is to ensure that the government receives military grade packaging the fact that there are third parties who may be suppliers of that packaging doesn't isn't enough to reclamation contract cases in orphans one of those cases make clear that even if the principle contract actually contemplates that a third party will benefit even if it mentions them that's not enough the contract has to give them in forcible rights and we party beneficiary contract in this first instance right yesterday smith and that's made clear by the relief that the plaintiff seeks under the u c l theory because it's essentially specific performance even if the court were to go beyond that ground which we think is sufficient to affirm there are multiple other grounds on which the court could affirm the dismissal of the u c l claim and that would include preemption even under california law if you apply california law choice of law principles and my friend did not respond to this point in the reply brief but even if you apply california choice of law it would still point to federal common law here and this claim therefore could not go forward if there are no further questions lock