all right well we appreciate everybody's corporation in the us than usual methods of talking to one another we are ready for argument and our five mispronounce things  k thank you ok yes all right thank you for accommodating me this morning i i do appreciate it i'd like to reserve five minutes for a  you have to keep track of your i will i want to do that thank you your honor i'd like to start i would start by saying i think the matter is been fully briefed and i won't belabor most of the briefing but i would like to just draw attention to a few points and i'd like to start with page two of plaintiff's opposition brief filed with this court in which it says quote apple e's did not need to address the delegation clause argument because appellant's had abandoned it and quote this is a necessary statement from the plaintiffs because they did not in any portion of the proceedings below address the delegation clause and so their only strategy is to assert abandonment the question really becomes when did that abandoning happen according to plaintiffs it happened in their moving papers and it happened when they anticipated and addressed what they believed the plaintiffs would argue and if you look at the motion to compel i apologize i'm not used to the camera so i stepped forward but if you look at the motion to compel page fourteen it's page thirty six of the administrative record there is a section c the st sentence states plaintiffs might argue that the agreement is unconscionable that is not a waiver that actually meant anticipating and addressing what they believe plaintiffs will say is not a waiver or abandonment if it is then a moving party is never able to anticipate and address the opposing parties arguments and it's moving papers at the risk of abandoning the argument that they have made in their briefing so i had a question different court at one point i believe  part ending appeal which is page one hundred of the administrative record the trial court acknowledged the team raised the arguments that the arbitration agreement was valid in and forcible but then says team quote only made a passing reference to the dell of cation provision and didn't raise it in the reply or at oral argument and then says quote having considered the matter abandoned the april th order proceeded to address plaintiff's arguments regarding the unconscionable ety of the arbitration agreement so the question that you're asking is is a reply failure to raise the delegation clause in reply waiver we would say or banned it meant no we have no obligation to reply to reply to nothing if they didn't raise it in the opposition the delegation specifically there was nothing to reply to and if you look at the united states supreme court's rent a center case five hundred and sixty one dollars u s reports at page seventy two dollars seventy three cents the supreme court says quite clearly that the plaintiffs has the obligation to raise the delegation clause specifically in its opposition or it's uncontested so they did not contest it in the opposition and therefore we have no basis or reason to reply to something that wasn't contested so we don't agree those are familiar feature when you're objecting to venue or personal jurisdiction where there is a removal issue that if you don't want an issue to be decided in that forum that you run the risk if you press ahead and ask for and get the ruling that you will have  your personal jurisdiction waiver why should we apply the same rule here to the delegation issue i raised it in the motion if it is there but then it was never heard from again and you pressed ahead for the substantive ruling that inconsistent with the maintenance of that of that defense why should we treat this like a personal jurisdiction you've waived it by getting the merits were well we we don't agree with that and i would say two things st we didn't push ahead and seek a ruling on the merits we again are cute anticipated and are cute what we believe that the plaintiffs would say we never abandoned threshold issue as a separate arbitration agreement so focusing on that you did press ahead and get a ruling on the merits of that issue that subject to that sort of separate run or center agreement that that's the not what rent a center says it's not what the other cases we cited in our brief reply brief page thirteen of our reply brief to this court say the late come st us security so is he a sions case or the shams for c v s health case you are you are in effect saying they are absolved from their failure to even raise delegation because we didn't continue to press it an issue they didn't did not want him to decide this issue while you argued at a hearing in front of him you didn't have to tell him by the way i don't want you to decide as if your go ahead here's what to do you  showed up and asked him to rule evokes sandbagged i think justifiably by that well he never asked about it i don't i don't just i guess disagree with your characterization  and still believe that what you're saying is the burden is on defendants i don't think there's a legal burden maybe as a strategic matter we should have reminded him by the way you don't have authority to do this but that doesn't change whether there's a legal obligation for the plaintiffs to address the delegation clause specifically oppose it in some manner they've never raised it not once in the proceedings they didn't raise it at oral argument they didn't raise it in their opposition the court never asked about it and they had won on the merits of this issue would you then insist that it still have to go to the arbitrator i can answer that i'd i don't know i would say speculative i think as a practical matter probably no at that's just a basic reality but i don't think that should be determinant of what the law is on the way for an abandonment the issue here is abandonment did we abandon by raising an issue in our moving papers that was unopposed by the other side and i don't think the answer to that could be yes because then that actually just sandbags moving parties because now they're put in the position of have to either not address the opposition's arguments and to spade in those arguments or they have an  affirmative obligation throughout the proceedings to keep going back to the arguments that are unopposed and i don't think the law requires that or places the burden on moving parties it wasn't that complicated or difficult for them to have raise the issue of the delegation clause they chose not to do that and we considered it a waved and moved on we replied to what they raised in their opposition in our reply way here and in the following sense of the moving papers said and i as a legal matter there's a delegation clause that requires this issue to be decided by an arbitrator and the response said nothing in opposition to that on that issue so why isn't that a waiver on your client's part of any right to argue that it's been correctly stated in the moving papers well your honor we analyzed the issue and we saw that with independence papers they weren't actually seeking the relief that they purport to seek now after the fact in these proceedings but i can say you never you never sent that to the district court in your paper so you didn't saying well this isn't really big they're not really asking for it and delegation decision because x y and z or there is no enforceable delegation none of that as is at least as i recall is in your response to the original moving papers am i wrong about that your honor we did not address the delegation clause in our papers because we saw that there was no affirmative statement seeking relief in their notice of motion the introduction to their brief statement of issues to be decided but relieved that they did speak to the district court and to quote defendants at the outset of their argument was to the extent that the court does find that any provisions are problematic defense respectfully asked the court exercise discretion to review and other to examine and either sever or refuse to enforce the agreement in this case it is the court looked at this agreement as a whole and noticed that and saw there was a systematic effort to impos and comment that the remaining hottest of the agreement would look like strips with cheese no reso many holes in it the court indicated that or signaled that this was going to earth this reflected a systematic effort to impose arbitrary and inferior form on the plane as and most likely identified the public policy reasons that were cited in our brief i believe the case was completely the finish line which frowned upon employers imposing one set of arbitration agreements that have and that and then having courts work be required to hack away at a constant provisions in till they reach  agreement that looks suitable to the court and complies with the law judge also obviously looked at this agreement and thought that this was the faeries effort by senior no prizes in this instance to pull put defendants in a position where their rights were seriously abridged into an under california law and i think that's probably what motivated him to which is to force the agreement you know only as the truth and neither well i think there's a public policy interest here in preventing in appellant such as tim enterprises in this case from not making the arguments to the court to seek the ruling that it seeking in this instance and then allowing court to rule on the court it seems to me it really is just speaking for myself i made a mistake by missing an issue that had been presented to me that's why front with religion it seems seems to me as  district judge that they didn't do it and don't we have an obligation to send it back with the district judge look in the st instance well in this case the defendants palance in this case they say they raised the issue but then they took the contra position and they spent still a lot of ink three plus pages of their opening brady addressing the merits of the case so they took the gateway issue here they open the gate they walk through they closed it behind them and one of the court to issue  seek an argument an issue on the merits and frankly had they obtained the issue the decision that they wanted finding that there are trace an agreement would have been was not unconscionable they surely would have been happy with that result and they would have been they would have proceeded to arbitration and showed the arbitrator their decision here they would have potentially used this favorable decision from the district court in future litigation at their arbitra answer these she was raised in the games and so you know saying you know what the incentives are to pursue them it is interesting but really to me not dispositive for the issue was raised and the court simply didn't rule  go i'm looking at your notice of motion does it say anywhere in this notice of motion that the the delegation issue that the arbitrator has to decide the issue of in force ability is that mentioned in notice of motion it is not mentioned in the notice of motion and then you have statement of issues to be decided right at the beginning of your motion did you mention the delegation issue there did you tell the judge also in the statement of issues to be arbitrator and then it was never mentioned ever again and you got the merits ruling that you wanted but that if you got the marriageable you didn't want and then all of a sudden you hold this out is that is that how we i don't know the answer to so that your honor to be honest i am not i'm not well versed in venue what i can tell you is this the section b three page fourteen of the motion to page thirty six of your record frankly lays out the issue sufficiently it follows iraq it states the issue it cites the rule citing the supreme court decision it applies that rule the actual language of the agreement that's the analysis and it reaches the conclusion had they set something at any point in the proceedings i am sure that we would have addressed it but they never did and now again we are being put the defendants are being put to the task for not further addressing something that from their perspective plaintiff had abandoned or left uncontested without any sense of really is it a reasonable reading of the miners behavior that they want the issue of foreseeability to go to the arbitrator was there anything in their behavior that indicated acquiescence in that not at all your honor but the problem is they bear the burden of contesting the arbitration agreement and i would refer you back again to the supreme court's decision and run to center and the other cases that we cited on page thirteen of our reply brief that are very clear that the plaintiffs must specifically contest the delegation clause they did not do that they contested five things that the it was take it or leave  it illegal attorneys fees clause there was an improper choice of law provision there was a shorter statute of limitations and it was subject to unilateral modification that's in their opposition brief it's pages seventy one dollars to seventy dollars of the record not once did they raise the delegation clause and again what they're saying is they don't have any obligation to raise that delegation clause in opposition because we had already abandoned it in our moving papers so the reply and the oral argument is you know after the fact thinking because their position is actually we abandon it even before they said anything and i don't think that is true at all and if that is true then it means parties in their moving papers cannot address anticipate and address the opposing parties arguments and do their best to explain to the core in advance wrong and i don't think that's the law i don't think it should be the law i would say two other things quickly in the last thirty seconds so the relief issue is a red herring the relief sought was compelled this case to arbitration it was not specifically broken down by this subset of you know this is a binding agreement this is a valid in and forcible covering of the