judge ryall should not have granted the summary judgment if there are numerous issues of material fact which are controverted one of the rights taken in a summary judgment is that of amending a complaint but in a nutshell in summary judgment motion in inference which could up imply not just state but imply a material fact is to be interpreted in favor of the  referencing both of them so is it your position that judge riad did not acknowledge a material issue of fact regarding the existence of the independent contractor agreement that's one of my position how did that matter in this case the independent contractor agreement drudgery all dismissed because it was not signed a poem site the entitle mint representation agreement which was specifically referred to exhibit ok you've moved from one contract to the other so i was asking about the independent contractor agreement judge we all recognize that ok that's what i thought so we're talking about the on  had a declaration from ryan all go nick that declaration read biz know when i reached an oral agreement then in addition to a monthly draw might be eligible for a discretionary success bonus oral contract and i will describe how it is a binding contract but good code so if the contract provides total discretion and i gather you're not contesting that not no your honor that's not correct and that's what judge we all cited under california lettuce growers versus union sugar forty five cal second fo seventy four when a contract confers on one party a discretionary power affecting the right of the other a duty is imposed to exercise that discretion in one of the party is anything other than any loser recontract what case makes that an important contract california lettuce growers versus union sugar company forty five callus second for seventy four year honor the at for seventy four eighty four the case provides that the party who has the duty must warders must exercise that discretion in accordance with good faith and fair deal when i entered into an agreement mr ogle next words that is an agreement now what happens to the discretion my declaration paragraphs ten and paragraph thirty five show that plaintiff's actions generated ten million dollars in profit the property was purchased for six point one million dollars the property was sold for seventeen million two hundred fifty thousand dollars there was no controversy about those numbers so the question is in light of the duty of good faith and fair dealing which is implied in every california contract even ones that are subject to the discretion of one party w plaintiffs be entitled to anything of that ten million dollars and certainly the inference is and this is where we get into summary judgment that's a matter that reasonable jurors could disagree about so your honor i do believe there were two contracts mass speak to the second contract the second contract the title not representation agreement which judge ryall had his hands and did not accept you refused to accept on the basis that  transcript how would i go about finding that document the document is called the independent contractor agreement it's one that judge  had in his hands and was referring to and it's the one which incorporated specifically section three point zero one exhibit b exhibit b is the entitlement representation agreement this is not controverted judge ryall did not accept the entitle mint representation agreement because it was not signed that's a mistake of law an exhibit does not need to be signed to be binding in fact benny exhibits are not signed it is axiomatic that if a contract is signed the signature on the contract accepts the contents of the exhibits now defendant will claim oh but this was just a draft it wasn't binding which then gets into the record in my declaration i disc i declare and i was the attorney for mr ogle nik i received emails these are not subject to valid evidence harry objections these satisfy the federal rules of the of the evidence i received documents that document included an email from mr ogle nik which said i have sent the the e r a no further changes period additionally it says something about he wants to wait and see how successful i am with city council well that again goes back to paragraph ten and paragraph thirty five of declaration plaintiff's actions generated ten million dollars of profit that is entitle to an inference of success so it is plaintiff appellants position that there were two separate in distinct contracts and drugs ryall just got it wrong may i speak now about some defenses in quantum era what with regard to the defenses federal the partly rules of professional conduct three days three hundred unclean hands my declaration clearly provides that i sent mr obama a letter the letter said i direct you to retain separate counsel to review our relationship the letter said i am happy to discuss concerns were separate counsel mr old golick sends it back signed twice the first signature appears before i write a no go nick between august ninth two thousand and eleven january two thousand and twelve consultant independent counsel regarding this letter i have been fully advised by such independent counsel he signs the second time yes and also may i ask when he signed that was he signing on every entity mr ogle nik states i represent and wore it for myself and for any entity in which i have an interest after consultation with independent counsel i believe all transactions between me and robert h biz know orbit is no development enterprise or any entity controlled by robert h business or biz no development enterprise l l c are fair and reasonable to me so long through not the point the point is there is a concern that this is in the loser recontract so at least in my mind i would be reassured if there is a california case that notwithstanding i'm bridled discretion in one of the parties there is nevertheless and enforceable contract in the private us to california lettuce grew us today but that citation was not made in your briefs so why should we accept that argument your honor that's one of the purposes of oral argument i am not the purpose of your argument for you to cite to us cases that you have not cited in your brief if an argument is not made in a brief generally we don't entertain your honor to entertain it here would allow an injustice because virtually all deprived from plaintiff the opportunity to proceed to a trial i'm simply laying out the two contracts that existed current california law unclean hands relates to my interfering with matters in front of a court sanctioned sale but my declaration paragraphs ten and thirty five are clear it was my actions that generated an additional two and a half million dollars and proceeds for the sale of the property and on the topic of inferences there is no statement declaration by mr ogle nik suggesting unclean hands or a rule three three hundred violation and the inference there where mr ogle nick has provided testimony he knows about this combined with my declaration my declaration being the additional profits that i generated for the company overcomes this theory of unclean hands which as everyone knows this is a fact specific and fact intensive defense as is a rule three three hundred violation old google nick didn't suggest any of those and i think the inference is clear your honor i will reserve the balance of my time a minute and fifteen seconds for about how thank you i just don't it just for the record that independent contractor agreement is that reserves sole and absolute discretion which is the language used in mr ago nik's declaration then that override so to speak the covenant of good faith and fair dealing in other words if the if mr going to preserve sole and absolute discretion then no exercise of that discretion could possibly violate the covenant of good faith and fair dealing that's point one on that con on that alleged contract point to  his point to even if there were some kind of you know if there were substantial evidence of some kind of a contract that's not good enough for mr business theory mr business to prevail must prove that he ha contractual right that we interfered with to a percentage of the profits otherwise his intentional interference theory doesn't doesn't hold together in other words his position profits so at a minimum in order for him to prove in order for him to establish interference with that contract he has to show that the contract was for a you i'm going to give you a monthly payment and if i really really really like the job you did i'll give you some more you can't count on that because it's within my sole and absolute discretion where did the point come from the forty percent from the entitlement represent the written agreement that was never reduces the value of the land so in in later proceedings we have the matthew a court appointed receiver sought to remove that restriction on business on the one hand was hired to obtain entitlements for the property and then he actively opposed an attempt to i'm at a minimum well there are several that there are several issues that are involved on the merits of the on the merits of the amended that he spoke to proceed really i would expect that mr based on his opposition papers had an obligation to indicate that he had some interest in amending the complaint especially since the hearing for this  on leave to amend a plea do you consider summary judgment to be a pleadings motion absolutely not and that's why any and that's why i make the distinction that if that is a way to make a distinction yes you are a counsel could i just go back to the quantum error issue again you heard opposing counsel say that mr ogle nik signed on behalf of all interested and the concern i have is whether or not the agreement was with the d c at the met or with one of the other entities can you help us figure that out yes the independent contractor agreement which company now i do want to flag a couple of things that are in the records and certainly if you're conceding the quantum arrow issue then oh no not at all not at all now he was paid out of the into pending contractor's agreement there's this was theory it is that the the individuals and entities who are parties to this appeal i believe he's seeking leave to amend that they were alter egos a v t c of the net and my only point in response to that is that even if perce good morning your honor i represent the three defendants that appear at the end of the caption ridge mountains vestments alec isco and david omer they referred collectively as the ridge mountain defendants the point of my oral argument is that they're more appropriately referred to as the forgotten defendants there is no mention of them in the operative pleading other then to collectively define all defendants and throw them in to the pa in the court the opposition at page ten and in the record that is excerpts of records page eighty says in an effort to cheat bt out of its not only are my clients not described in the opposition not only are there no facts in the opposition or the opposition to the separate statement but the thesis of the argument in the trial court repeated here on appeal is that my clients never consented to the nine hundred ninety nine nine hundred ninety thousand dollars payment to avalon that is the basis for liability the basis for interference in this case because the argument is by  company but the argument is that and it's correct that on partial summary judgment in a case between these very defendants my clients want on the issue that they never approved that nine hundred ninety thousand dollar seventeen of the reply brief are the sole effort by the ve to make an argument as to why my client should be in this lawsuit the argument starts with a concession and the concession is that again well yeah your clients didn't really do anything affirmatively that would have cause liability but then without a single citation to any evidence anywhere in the record page sixteen then says my client acquiesced in court of appeal to address the point of my oral argument that my client somehow i've gotten caught up in this whole mess and don't belong here so it starts with a concession that essentially there is no liability for my clients no affirmative action response that does not state any of the elements of an intentional interference claim there's neither in intent or is there any interference there's no citation to any authority for it's not the law that sitting by and allowing someone else to engage in misconduct itself constitutes an intentional tort there's no negligence or no negligence interference claim in california it has to both we have to intend to interfere with the contract and we have to actually interfere with the contract by our action not the derivative action of the party but our action itself has to interfere with the contract about the ratification theory your client subsequently acceptance that would constitute the intentional tor the second is again there's absolutely no evidence of that the only citation in the record is both e r two forty eight and f e r ninety five  those are the two documents that are cited by in the reply brief of page sixteen itself seventeen those documents literally are just my clients were copied on e mails twice copied on relevant e mails in th being copied on an email again cannot state an intentional toward it cannot constitute interference under california law beyond that if you dig into those two e mails which i certainly invite you to do if you haven't already they are e mails that describe that mr biz know has brought an agreement and he attaches a document that has a ten percent not a forty percent contingency interest so it's a document different from what he's suggesting in this very suit he should be able to enforce and then the next email after that document has been refused to be signed by mr o'gallagher nick there is a reference to there should be some exhibit b in the agreement literally the evidence at best at this point against my clients the ridge mount defendants is that they were copied onto e mails and didn't do the very misconduct that underlies the tour in this case i would suggest the wall we join in the other arguments and i think there meritorious separately as well a basis for affirming judge reals an alternate basis for judge ruling on summary judgment for my client would be the absence of a shred of evidence regarding either intent or an actual fair thank you thank you that's one of the reasons that we are asserting that we should be directed back to the trial court because we did not have a right to amend the granting of summary judgment is so draconian there is no right in the of our day in court if the summary judgment motion is overturned which we believe it should be on the interference with contract claim at that stage we have leave to amend we are back in front of the district court we can amend counsel said it was a sitting down and it does not fail it says that the material the material terms of the contract have to be set forth and that was the question we had with you regarding the contract because it w five clearly provided that the defendants encouraged participated and benefited from the additional ten million dollars i created and they didn't pay for it in and of itself it's respectfully submitted that should be quantum error and with regard to the e r a there was a question of who is bound under paragraph four oh go mick and your affiliates counsel before you