fundamental right the right to own property property ownership is one of the fundamental rights of our country and constitution and is what the laws at issue here are meant to protect the laws at issue here i tack that fundamental right i want to just go to the facts of this case in a nutshell defendant best buy own t v satellite receivers that actually help hold health title to those receivers and sold them to consumers and it's retail stores that go into the name of best buy in a bait and switch scheme when the consumers paid money to the defendant for those receivers defendant who again possessed the title actually own those receivers did not transfer that title to the consumers as the consumers expected but instead secretly transferred that title to a third party here in california which is direct t v the defendant did this because it had a secret say that's not your property it's direct t v property give it back to us if you don't you'll be subject to hundreds of dollars of fines plaintiff wise for instance actually under those threats return that piece of property lost that piece of park property play if we got to claire twenty belief that and there's different types of declaratory relief that they can seek one is that the title to the receiver is ours and then they could go into court and say this is actually our receiver that directv had i'm sorry that best buy had right to transfer that title to a third party they told us we were going to own the receivers at that they had a duty to give us title to that receiver declaratory judgment could also be that best buy  had no right to transfer that title and these are fungible goods they actually sell right now on e bay for fifty to sixty dollars and if you want to go buy one of these or sell one of these you could go on e bay right now and buy that in fact the receivers that the are at issue here are still functional you can still use them to receive t v and you can buy and sell and trade them on the open market so with declaratory judgment we could use that against best buy to say if you can't give us the specific title for that you can go and replace these receivers and give us those receivers they may want to do that to catch or they may just want to actually buy those receivers and give them the receivers they may even have some of these back in their warehouses because as i said they owned a  receivers at one point now we've gone through the basic facts and i think this this is no different than if this television set was sold to the ninth circuit and then later some i said actually i never sold out to the ninth circuit standard first of all it dismissed on summary judgment saying you cannot prove standing less you showed that you overpaid for the product at the time you purchased that product and it's a very hypothetical scenario that the court  are and the and the injuries very simple the interests of the people want their property back and i think it's important to look at the cases the reason i think the court made the ruling that it did is because there is language in the kwikset isn't about how you prove injury and one of the possible ways to prove injury so that you have standing is to say that you overpaid for the product in the first place but the problem is the courts that's the only reason to prove standing property or future property interest diminished that's exactly what we have here if these people don't have this property they thought they were becoming the owners of this property and then they don't they're actually not the   and then the third this going back to the tougher supreme court said in one of the new novel ways and these are just examples it's not exhaustive is three feet deprived of money or property to which he or she has a claim that's exactly what's at issue here in fact the court tough new supreme court said ross property is itself a classic form of injury and if a party has proven a personal individual loss of money or property appeal until the final judgment in fact the plaintiff i'm sorry the defendant sought cost against mr masters regarding the plaintiffs regarding cost associated with that and this will be the first met this case has a long history part  that's because it's gone up to the ninth circuit twice on arbitration issues but the honor to answer a question there's a case again directly on point its ninth circuit case of eighteen t mobility versus this is seven zero seven f third one one zero six it's a two thousand and thirteen case it post dates the two thousand and eleven decision your honor raised but it does apply here and in that decision the ninth circuit held california consumer protection claims can apply to out of state residents against out of state defendant if you look at the if you look at certain facts and rejected the reasoning used by the lower court here when it dismissed those claims specifically the ninth circuit in the eighteenth t mobility case said the district court place of purchase rule represented a return to the word in and now largely abandon doctrine and instead the the night target said you just don't look at where the transaction took place or you have to look at the significant contact or significant aggregation of contacts creating state interest that's that's the part that concerns me whether or not there was adequate contact or aggregation of contacts with the out of state defendants such that california should be the four and i  into moment this agreement being executed and else again though california which is basically to only lease these products we also they also talk about the fact that the title was transferred to california to the entity in california so that's where that the title actually exists so our understand to that this where the receivers are that were sent back these are actually in california so california if we win at trial will have to use the california courts possibly to get that property back california the title that they did never received was sent to directv in california we could even build the record more and more with all the e mails between the two parties there's an electronic system set up where basically california entity direct t v was telling best by what to do through this electronic system that it set up how to interact with the customers what to tell the customers the whole scheme this is no different if you look at the facts of the eighteen team ability case these are actually more facts then w that case in that case tonight circuit said you could apply california law the question is not whether you apply california law it's whether or not these defendants whether or not the out of state if in should have to defend the case in california and  to be clear best buy is not contesting that best buy in fact does business here in california the allegations are that they interacted on a regular basis with directv in california and they haven't aggregation of the factors that point to california show why california law should be applied on to the out of state residents alternatively point out we also say that minnesota if california is not applied in that manner and we do think it should be under eighteen team ability that minnesota law should be applied because that raises a different question whether or not minnesota law can be applied extraterritorial and it and it's the same type of analysis and you look at all the factors at play one of one of the issues i think is this is really probably more appropriate dealt with at the class certification stage after a full record has been developed we could we've taken many depositions in this case there's been lots of e mails produced which show the links between the defendant and california as well as to the minnesota link and if the case went back to the district court we would hopefully get a chance to amend that if this court felt what's currently played was not sufficient to include actual evidence in the pleadings to show that there's no question that under eighteen team ability the plaintiffs meet that standard here there's a different lawyer that's before the court this morning than argued in the previous appeal of this case but that's no excuse for ignoring what the procedure is that's led us to this day both procedurally and substantively in the decisions he raises title but there's no title document in the nature of a car title or a house title that gets given to a customer when they're at a best buy store they go there they pay the money and they get a box that's the end of it but the assumption if you purchase something that is your property and purchase that box yes the assumption is that your box and there is no allegation in the complaint that best buy ever asserted any rights against this plaintiff to have to return it there were no lease fees that were paid there was no demand for the return of the receiver by best buy and that's precisely what i'm talking about with what has already come to pass in this case and what the pla denim but it is because of the directv customer agreement and lisa denham that we stand here today that's not a document that best buy attempted to enforce it's a document that the terms of which are the reason the plaintiff claims that or the direct t v would have asserted was the basis upon which the receiver was required to be returned and yet again i'm still of what's troubling me is that it's very clear that these plaintiffs came to best buy to purchase the receiver that's what they thought they were getting that's what they were bargaining for and it turns out that they did not get ownership of the receiver they entered into some sort of a lease agreement that's what's troubling me here help me understand why that's not a correct observation so i'll know for your honor the two arguments that were made before that are on point this is by the predecessor council in the prior appeal it was argued that in this case they're simply making no claims at all under this contract that's the customer agreement and lisa dunham with respect to best buy we are making no references to the terms of the contract later they argued our best argument is the best buy is not a party to this contract and that we have not made any claim under the alleged contract against them so we are not invoking any terms we are not trying to have it both ways that's precisely what they stand before you trying to do today they attempt to say that the terms of the directv customer agreement and it's lisa dunham are the thing that make this a lease instead of a sale best buy has disclaimed any interest in the receiver they have interest in their c v and for them to now say in a claim that best buy is asserting some obligation for them to return it's just not factual and the only possible way that they could make that claim is based upon directv is assertion of their rights under the customer agreement and it's lisa dunham without that this is a sale as far as best buy is concerned they walked out of the store with the box in exchange for ninety nine dollars but if i could turn back for a moment to mr masters and mr murphy i'd like to first what about before you before you leave that point what about kwikset doesn't kwikset justify the claim that the consumers can show under these circumstances that they would not have purchased or whatever they did they would have not it entered into this arrangement with  really concerns the facts supporting whether there is or is not an injury of any kind and that's dependent not upon what the law is under kwikset but rather a based upon what the plaintiff has testified to and those facts demonstrate not only that she did not suffer an injury but had she received a full disclosure with certitude about what all the terms were that she would have done essentially the same thing i refer your our first two  there's not a distinction there as to the dollars or what the effect of the transaction would be the second thing is that she says contrary to the cases the talk about a price premium here she says that she would have paid many fold more for ownership of the receiver so in the usual case what you hear is i paid ninety nine dollars and i would have only paid eighty five if i knew it was leased here she says the opposite  her in the transaction at all she thinks she testified that she would not have paid money nine dollars to lease so the injury she engaged in the transaction that she would not otherwise have engaged in she would have not have leased period well why isn't that injury your honor anomic injury because she's out money nine dollars for something she didn't want her own testimony demonstrates that she would have done it or that she doesn't know what she would have done if there is some contradiction regarding which i would have done and that in my view precludes summary judgment on that point because at one point she said she would not have paid my ninety nine dollars to lease her receiver she injury i'd respectfully disagree if if someone is going to engage in the same transaction and it happens to be with direct t v instead of best buy she's not a penny and the rights that she would obtain are exactly the same as with best buy in fact the testimony i think your honor is referring to is later in her deposition in response to her counsel's own questioning after whatever breaks were taken and the other testimony that exists is that she says i don't know if i would have paid ninety nine dollars to directv for the same receiver that's a t r seven seventy nine then she says that she would have relied on directv to tell her what to do that's seven fourteen then we don't have to guess about what she would have done had she had a conversation because she did have a conversation and we know because of her testimony at seven sixty six to sixty seven what happened in that conversation and when she called directv and asked them about how to get service with one of their receivers they told her to go to best buy because it was cheaper so if there was a misrepresentation that was caused through that conversation that's not attributable to best buy but if she was going to do a directv told them as her testimony says and they told her to go to best buy then she did precisely the same thing that she would have done had there been a different disclosure that that's her testimony the even if you're talking about what that fee would have been and even if she would have paid ninety nine dollars to directv instead of best buy we're still at the same place we are before which is that best buy never enforced any of the terms of ownership vs lease on her it was only directv and the only basis upon which to do that was the customer agreement and it's lease of denim there is no other interest that best buy held or contract that best buy assertive if there are other questions about the injury i'll turn back to mr masters and this from murphy i let me ask you a question about the law of the case in this situation as i understand it th cessna do with the february eleventh two thousand and eleven order yes or as i understand it there was a notice of appeal filed but then there was a waiver of the he'll do i have that correctly you do the right decision was that it was them dismissed on an order to show cause basically from the court because there were still claims of miss weiss pending at that point after that order came back down there was the motion brought to compel arbitration pursuant to the concepcion case which had been decided in the meantime and it was at that point that the court granted the motion to compel arbitration both as to direct t v and as to best buy and at that point mr murphy and mr masters were no longer in the case as to best buy it had been months and months by that point that they had been dismissed on the motion to dismiss it was at that point the direct v though had brought their motion to compel arbitration it was granted as to all plaintiffs the only remaining plaintiff who needed to be dealt with and the only remaining claims that needed to be dealt with as to best buy were miss weiss by compelling arbitration the district court determined the last of the claims as to the last of the parties that had any claims as to best buy a notice of appeal was then file that included the february two thousand and eleven orders expres and in that notice of appeal those issues that were identified went up to this court in that appeal there was a brief that was filed there was a response that was filed in a reply that was filed there was an oral argument and a decision came down and at no time in that discussion was there any criticism of the motion to dismiss and in that decision on that appeal there sir for example murphy versus raise them in their opening brief therefore we do not review those minute orders and concludes however as a result of those orders roberta weiss a california resident is the only named planet with remaining claims pending against best buy and it was on that basis that the case went back to the district court such that the only named plaintiff with remaining claims pending against best buy was miss wise and the case continued along in that claims and then in the judgment that's appealed from here now the court expressly rejected the judgment that was proposed by the plaintiff that included mr masters and mr murphy and adopted a judgment instead which read in part that whereas plants appealed that order referring to the dismissal but abandon their appeal as to that order by failing to raise it in their opening brief leaving only roberta wife weiss as a plaintiff in the case and then it has a judgment shall be entered and enters judgment only from a slice and then how does this have a direct impact with respect to the california and minnesota state law claims it does your honor in so far as those claims cannot be asserted by mr masters or mr murphy at all they're out of court and so we don't in your view then we don't need to reach the question as to whether there were activities in california or the question of whether the minnesota statute applies to purchases versus leases that's that's absolutely right and i should correct one more fact it's been stated here again today and several times in the record that is false which is that we did not on behalf of best buy apply to tax costs against mr masters and mr murphy it's an f e r o one and it was submitted with the reply brief it is as to it references the of dismissal on the motion to dismiss they did not continue on in regard to the arbitration motions but like generally you look at the intact case as long as there is something pending against one of the parties waved on in the notice or include in the notice of appeal but not included in any way on the in the opening brief that the case that the arguments are way i don't feel comfortable if  think let me clarify that more your honor the order on the motion to dismiss as to best buy fully and finally result of the claims as to masters and murphy there was no issue remaining as it was there were you saying but generally if there are issues remaining yes to any party there is there has not been final judgment in that case and i'm not familiar with the authorities your honor has in mind in that regard the ones that i've looked at in that we cited in the brief relate to the waiver of arguments that are that are included in the notice of appeal but not subject of appeal and waived and so to the extent that there is an implied affirm and of the dismissal as to those parties then that would be the effect of the court of appeals prior ruling as demonstrated by the judgment the court finally entered that only was a judgment as to miss weis if we take your honour's premise to its logical conclusion we still don't have a judgment as to mr masters and mr murphy no one has proceeded on that basis at this point whether or not california and minnesota law can be applied to out of state residents and the reason for that is those claims are sorted by this weiss she's asking for minnesota law to be applied nationwide she's a california resident she doesn't live in  as well as she's asking that the california law be applied on a nationwide basis as well so you still have to consider that issue to go to the waiver if you have standing here standing to invoke a minnesota she she does based upon the ninth asserted allowed for how to state residents to apply does that statute apply to leases it does your honor but it also applies to sale and that's what this whole case is about is it a sale or is it a lease if it's a sale there's no question about that and we cited some cases in our briefs that showed that also applies to leases i just want to go to the waiver issue one real quick because if you look at the case that your honor the not going to apologize has not decided this issue and the whole idea of lot of cases that the actual merits have been determined they have not been determined here waiver is an issue about where if you don't raise something in your opening a brief and then try to do a blind side in your reply in the cour say no you wait that that's not fair to the other side because they didn't get a chance to address that their opposition well that's not what happened here the issues were never at all touched or briefed in the first go and they weren't done until the final judgments b rules are very specific and say you have you can either appeal at the time of the order or final judgment and that's where we are now we're at final judgment nobody's contesting its untimely end because it's a multiple party situation rule fifty four  it's not that the claims were dismissed they were just sent to a different forum i just need to bring up one more point big to correct the record what two more points i was co counsel previously when this was argued before your honor's or the ninth circuit was a different panel  are seven nine eight seven nine nine eight hundred are the iraq the tories responded to by best buy and in iraq toy seventeen they state who owned the receivers at the time that they were sold