stake in the different lawsuits and it looks to me as though the primary right was not a contract right on the contracts with the seller of gasoline because there are of contract alleged the primary right appears to be the right to be free of predatory and discriminatory pricing that right is common to all of these franchise guest stations different prices for different purchases of gasoline to compete for the same group of customers that's what we're talking about here so the issue in the case it was what customers  doesn't compete with the stations therefore we can charge them different prices with the plaintiffs in this case was alleging is that for example if you have these two separate quite songs but those prices are actually complete for the same group of customers therefore shell is discriminating in price by charging different prices in different places so the issue in the case was when the main issues in the case was is shell's price zone that it has designated as a competitive marketing area does it accurately reflect the competitive market and the plaintiff in the case was saying no it doesn't and that the actual market is bigger and that right for him to be able to come out and say that and make that argument a rises out of his contractual relationship with shell in which shell has agreed to supply him gasoline and the statute that we're talking about but tax franchisees so the prerequisite to get your foot in the door under the statute is you must be a franchise eat and otherwise you must have a contractual relationship with the supplier and that is why i was saying at the same time and i was not affected under california law because this sounds like you but you just described to me it sounds like you're trying to vindicate write our contractual relationship with that with that shelf in that market that we were talking about and so if so this particular deal had more than one station and we're only talking about two stations and he in this case a prior station these stations are thirty miles apart and there's no additional of these stations compete with each other are or should be in the same marketing area but each station has its own contract its own franchise agreement so this is where the primary right comes out because in the california law if you have a different contract or relationship then the primary right arises out of each country just consider the separate primary right and  there is no price within the contract that says we're going to charge you this price for yelling gas i mean if i have to go with the market the price is the market price it's a price that shifts every day exactly but the business judgment there i mean i made by some gasoline this week in the pasadena area but probably ninety eight percent of my purchases of gas wiener more are in  cents a gallon less they probably saw when they held and now hombre and maybe even getting further over to the west i don't know but it seems like it always be a matter of business judgment and the market would change according to the price and both the franchisee and shell would just adjust their policies according to whatever they thought would optimize well that's the question that is up to experts to argue over whether or not these stations compete to material degree for the same set of customers in your situation if a person was living somewhere else and once in a while filled up at the station that when they considered material they have different numbers like the station says ninety percent of our sales sort of people with and area and shell says we can't it is a market of eighty percent of the sales are people and such and such well just those are all the issues that are currently in debate or in other cases a trial factual questions as to whether or not a station competes for standard customers are or whether shell is charging different prices to people who are actually competing with each other or at the stations that are competing with each other and that is what the california statute is designed to prevent is that they don't want a franchise or charging different prices that has to merge or retailers are competing for the same customer and whether or not they're competing for the same customers that's a factual issue at trial ultimately but going back to the question of the primary right what i'm saying is that you have a primary right first of all which is a contractual right to be supplied with then you have a statute that governs that regulates how the franchise or price is that the product the gasoline product and in order to benefit to receive a benefit or to sue under th with them and with the plaintiffs here on the same theory same statutory claim but different marketing areas so the different set of evidence regarding whether these patients compete with each other or whether they don't compete with each other it would be completely different evidence i mean a lot of the evidence would be the same regarding a quantum practices business practices but the main evidence as to whether the market is the same which is the markets are completely different though that evidence would be obviously different because we be talking about a different part of a part of the city as compared to the other case but the primary rights issue that is explained in that power point a lot basically says that if you have different contract different rights arise under different contracts and therefore since the statutory right must first have a contractual right the same applies here because you can't have a statutory right unless you also have a contractual right to go to hand in on on the issues in the case and so i just want to touch on those briefly first he conceded early on as they have throughout that the same primary right is involved in both cases for mr goal and that is the primary right under the statute you're in place in california to be free from discrimination on pricing of wholesale gasoline you have to necessarily link that to the contractual relationship there's no claim without the contract you're actually that's not necessarily true and if you take a look at the complaint involved in the case the complaints for locality discrimination as well as the complaints for predatory pricing by the claiming that act on sells its gasoline from its company owned stations at a price that's lower than what its costs are these are all claims that are in fact don't have anything to do with the franchise contract and their own if i may with the with the appellants complaint there was a complaint brought my series of dealers challenging the way that apple onsets its prices throughout all of california now the claim does scrim a nation in order to prove that up a plaintive has to show what they're relevant marketers but that's an issue of evidence and certainly here where you have a series of plaintiffs who are coming in strategic choice at the beginning of his lawsuit that he would only bring a claim in los angeles with a series of other dealers based on this one station and concerning look ality around that that one station he could just as injury you have to bring all claims that were brought or could have been brought whether it's negligence or product liability or strict liability or intentional plourde or whatever it was asked for you may have to  counsel in the same claim contract quazi contract fraud and various other things all arising out of the same negotiations and fair use to satisfy each other i'm having a little trouble and i want you to guide me through this handsome complaint i'm thinking the theory is just the same as the wholesaler is defining the market wrong so that in effect his stations get to undercut our stations by buying gas cheaper the evidence is going to vary one case i have a lot of evidence i don't know about riverside another case a lot of evidence about  santa barbara i'm i don't know southern california really will be different localities so in that sense the evidence will vary take me through what you think are the critical parts of th up this territorial pricing system based on its own internal computations it sets prices in different competitive areas different regions differ between those various areas and so as a result the appellant is alleging that there are times when his stations will pay more of the wholesale price for gasoline in competing stations and that is the same allegation that's made by all the same territory or or within the same the claim of the appellant is that that's within the same what he would call relevant market oh i get it so shell is saying no we're not these are not competing markets and the plaintiffs are saying yes they are you don't realize that the market they're complete and our markets are overlapping shell station he's getting lower prices or is it between that route that market gardenia and the san fernando valley that those there's different compete with stations that are outside of those pricing areas that are then paying lower wholesale prices this is strictly the section twenty one two hundred claims but but it applies that logic applies generally that that those stations outside of the shell designated pricing zone or that's paying last and that appellant claims that he actually compete with those stations that are outside of the zone how could he know how could this be anything other than i how much question it i'm thinking i once had a one sided question about a shell truckstop and portland or no it was union seventy six i guess and it turned out that if you have a nice truck stop and low prices truck drive three hundred extra miles to go to your truck stop instead of another one on the other hand if you don't have a lot to offer they won't likewise here it seems like the size of the market would reflect the price people drive across town or to another town if it's a good enough bargain and not go for convenience if it isn't i don't understand how you can make out much with how you can fit into the statue well without getting into the details of it your honor because it really does as mr level of said go to the merits of the case there was an analysis that was conducted in this conducted periodically by law and shell to determine what these competitive areas are and to determine what the price the price sensitivity is between each area now the appellant and the other plaintiffs in these various cases have challenge to sort of  veracity or rather the integrity of that of that study and have set put forth their own experts who say that in fact if you look at it that all of the stations basically within say los angeles compete with each other are all of the stations we had an expert who said all the stations within san francisco compete with each other so it is really a question of determining what competitive areas are and determine sort of the integrity of those competitive ar insensitivity so when you get into the details of it the question is sort of what is the shells pricing system is it appropriate or not and that's the same claim in every case and that's why because mr  has lost his first case he doesn't get to challenge that same pricing system again because that's what this all comes down to what extent is the case going to be about theory for example an economist course a person who lives in riverside and work somewhere in the l a area he decides whether to fill up at the home and do the work and depending on the prices and to what it's extent it's a going to be expert evidence about geography where the riverside people drive to and how many of the customers license plates in the riverside gas station show or riverside registration address that sort of thing in the cases that are going forward now your honor there was a reference to a case that's going to trial and may i think we're going to get expert evidence on all those types of issues in terms of what you consumers do generally speaking hill but that are implicated by the plaintiffs challenges against shells pricing system you would agree with you know that you know one of these franchise agreement there's a unique relationship with each agreement i wouldn't necessarily agree your hon that there is a unique relationship with the i mean you could you could cancel the valley let's say franchise agreement for failure to do x y and z but you would still have his gardenia that's correct are certain there really is a there is a uniqueness there between each one if echo on were to breach somehow the franchise agreement with mr doyle regarding one of his stations that would certainly create a cause of action which would certainly be general principles of race to the color of the principles i stay fairly clear that it's trying to start them on this rather complex situation corrected their feet very few cases that concern section twenty one two hundred under the california case law so it always makes these types of cases a challenge and sort of sorting these things out over i think with the general principles of race judicata and the fact that the appellant here has in fact challenge sort of and there's a primary right that arises only in terms of particular contracts and that's the problem i think is that if you were to look at the statute itself it talks about discriminatory pricing between competitors the statute itself isn't doesn't specifically describe the franchisees but beyond that looking at the actual franchise agreements themselves the agreements aren't where this all comes from there's no allegation of a breach of  somebody else straight in their ability to really gain from their current from their franchise agreement you know it looks like you're violating their primary right to me well if i may your honor if you were to look at the franchise agreements themselves there is a provision that provides for standing gasoline prices in good faith and so in fact many of the plaintiffs in these types of cases will bring a claim for breach however there's no claim for any sort of breach of that here there's with regard to whether a primary right has been created by the contract if you were to look at and i'm sure you have the cases that have been cited by powell have those or many those those cases all concern reaches yes of the contracts and there's no itself is discriminatory or are somehow wrong what we're alleging is that is that they have all they have they comprise the gas however they want to price we're not telling them how to what kind of system they should have but the result of what they're doing is charging different prices to competitors in the same market so we're looking at the result of what they did now obviously f b i is going to come in and say well we have this system and it's a perfectly valid system and therefore because we have the system the results we have must be valid and of course there is regarding that whether that what they did and how they did but ultimately if the result of what they did doesn't result in stations  stations who compete with each other the in charge different prices then doesn't matter what their system is and so when counsel says that where challenging at one's way of doing business and this is why that's the primary right i disagree with that i think the primary right is our right to be charged the same prices as our competitors are being charged and that right arises out of our franchise relationship and the quote was correct and suggesting  that if one contractual relationship is cancelled for whatever reason the other contractual relationship or mails in force and the same time when that first contractually ship is cancelled so has the right to sue under the statute because at that point there's no longer any purchase and sale of a product between the franchise or in the franchisee when you deal with restricted cotta there are practical concerns and i guess the concern here is pretty of ownership once you get stations scattered cases and a bunch of jurisdictions when you find a good judge or jury stiction where it looks like you might get a good jury drop the other ones proceed with the one that's good  get a result and then use of his collateral estoppel in the others or maybe even turn into a class action or multi point of action and researcher to cut is supposed to get you stuck with the first time to try and i'm not sure then there's a separate issue in san francisco according to what about one guy who owns two dozen gas stations and was very interesting oh well i'm mistaken in thinking this is that sort of case not necessarily because  think we have to boil it down to the lowest common denominator here we can talk about the bigger picture bigger issues but ultimately comes down to what is the right that we are saying is subject to that you have different contractual rights those are different primary rights because they arise and different agreements so if you we weren't talking about franchise agreements or if you were talking about a franchise agreement under in one stations for price discrimination and let's say another case also rising on a different franchise agreement let's say for failing to maintain the station for failing to maybe fix the pumps or something you talk about two different pressures agreements two different primary rights and i don't think anybody would argue that mr l wouldn't have the right to bring in a claim for maintenance separately than a claim for price discrimination but if you have a claim for maintenance and a claim for price discrimination arising out of the same location out of the same franchise agreement then i think the argument would be well that arises under the same contract and you should have brought them together so this is this is my point is that because their rights under different contractual relationships different duties and different rights arise even though those rights may be similar they arise under a