court my name is harry carmack i represent george prince doing business with prince commercial real estate services i refer to my clients as the brokers and i also represented the brokers in the trial and prepare the underlying listing agreement they had an agreement of some kind with melody to be paid if the city had not been on the scene or ever appeared on the scene in this transaction that had gone forward from the seller to the church involved the there was a separate agreement between the seller in the church executed which we've called the melody to an agreement in the record that was executed between the time of the offering noticed and the the acceptance of the offering of this by the city of anaheim that agreement contained a clause that require payment of a brokerage commission is there any written agreement between and agreement for their commission we're all familiar with real estate residential real estate commissions we probably all bought and sold homes of our lives least some of us and no question if analogy work you know i don't believe it does i believe the broker must rely upon the document states to write to a commission and the this is a little bit of an unusual situation in that as you have indicated your honor the sale of the property was subject to a preemptive right held by the city of anaheim and it also was subject in this preemptive rights were requirement that the seller provide an offering notice to the city of anaheim and that requirement was triggered when the seller was prepared to sell the property when to have a desire to sell the property and was prepared to sell the property that had to to this case between right the first offer in a right of first refusal no i don't believe there is in fact i i have not been able to find a single case under california purchase price was six point seven million dollars that purchase price included in writing a brokerage commission of three hundred ninety thousand dollars what we're saying is that under this preemptive right under the express provisions of the grant the section for twelve the seller was required to extend the exact same terms and conditions to the city of anaheim including the brokers commission well w to the seller the brokers demanded payment of the commission in the seller refused and that's the basis for underlying lawsuit we believe that the district court erred in applying to not match the terms of the offer in certain circumstances under naturists that circumstance was the holder of the preemptive right subtractive the broker's commission knackers does not stand for the you had leave to me and you would do certain things or show certain things in my correct that you need that representation yes it is correct that if we had leave to amend we would include additional facts into the complaint and such a provision easily have been put into the letter of intent the sale agreement or the nothern void provisions what they can see empted the brokers commission is our position i'm like the position was willing to sell the property the city then had to say yea or nay but that's the question is whether we know the minimum terms you see give the purchase price and the material terms on which is prepared to sell the property and it gives the purchase price specifically does not say anything about the brokers commission our position it didn't need to because the brokers commission is not something that the city had to pay the city only had to say we're going to accept it by for six point seven million dollars remember the city of anaheim was not profit as n g by the actions of the broker the city had a preemptive right that extended back i believe them i think ninety nine r and i think i seventy and it's right have nothing to do with any efforts that were occasioned by the broker the broker was going to get a fee if there was a sale to melody or fine it's really case if there was an attempt to if the seller refused to go through with the sale the melody and i am or if there was an attempt to cheat the broker out of commission but that's not this case this isn't if you suppose the city could have said well are further negotiations but we were not required to put in that amount of a matching amount this is that and once again i think exception with the argument of counsel i see a big difference between a the only restriction is once we made that offer to the city and the city said no then we can sell it to somebody adding the lesser price but that was the only restriction placed upon s m g by the terms of land in order to go to the city and say here city six point seven million we didn't need that at all we could have gone to the city and said six point seven the city could have said no and then we would be free to to enter into negotiations with anybody to sell as long as we didn't sell for less than six months and we didn't need that on your hind offer you didn't even have to have an offer did not need to have you could write you could go to the city and say we're thinking about selling this property within the next year two years whatever and we think it's worth about six point seven million if you wanted the clock's on for you to exercise your first offer rights otherwise we're going to go out to the market and sell  once that happened we don't have to pay the commission to the broker and there is no agreement here that survived the city's exercise of the right of first offer which seven point one have an integration costs stating that all or all negotiations prior negotiations or all say statements have been superseded to the extent that they're claiming that they're a third party beneficiary to the grantee just express terms of the grand feat of a preemptive right to say they have to stop court for material terms and the reason the brokers commission is a material term is that under the holding of inaccuracy had the city other offer included a broker's commission we don't know because this is a talk six motion what were the reasonable expectations of the pardons we don't know whether the city of anaheim intended to pay the broker's commission your it triggers his desire to sell the property but he doesn't agree with the offer so he can still go through the city of anaheim with his own terms and conditions and give those to the city of anaheim neither of those things happened here there was