rising out of whether or not she got new phones however two of her claims have nothing to do with that one is how long the apple care plus extended warranty lasts and the other is how many accidental damage incidents do you can't with it so whether or request but if we cannot get a new judge assigned to this case we will not be moving forward with the with the english case and that being said my understanding is the likelihood of that is remote at best so i was going to ask the court to allow me to speak freely without interruption for a little bit of time so that i can make sure that i get everything out there because this may be the last time i ever speak to a court regarding this case again and i'd like to get it on the record ok so i'll continue with respect to length of coverage of the plan positive rack her sales person told her that she would have two years from the date of her apple care plus purchase and the apple call  and seventy five shows other consumers thought that to english was required to read the repair terms and conditions at the point of sale this is critical when she's there buying her apple care plus program the extended warranty and she's read them by checking a box and the testimony shows that she had to be the one that checked the box and then she had to sign on top of it and the significance of the repair terms and conditions is here she is buying an apple care plus extended warranty and then she's signing repair so that was received subsequent to her purchase and so that only cooperate with that particular ac plus certificate suggests that what she what she was told was that her twenty four dollars months of coverage began that day because the serial number in the apple care plus certificate that serial number is for the phone that she actually purchased that day that's the phone that's the serial number if you look at the nd sentence of the a c plus certificate it says that the certificate they're talking the product they're talking about is for the product listed above the only product listed above is the film that she purchased that day and then furthermore the apple care plus terms and conditions she also received that evening she received multiple e mails that evening after the store closed the apple care plus terms and conditions themselves that are six hundred and eleven dollars corroborate this project once came the intent the misrepresentation omissions all of it if you look closely it states that there is an exclusion for preexisting damage and i wanted to actually read it to you if you look at our six hundred and eleven dollars this is really important it says and this is the apple here plus terms and conditions that she got after the transaction so really co operates what they've been doing it says the plan does not apply to a preexisting condition on any covered i phone if you purchased the plan after you purchased the covered phone they're saying the covered phone was that back dated phone that she purchased from sprint like five or six months earlier no reasonable consumer is going to understand when they buy an apple care plus extended warranty for that day and they're being told that it's going to last two years no reasonable consumer is going to understand that somehow when the they're being told it's a two year plan that actually the two years was back dated to something they didn't even buy at apple they didn't even buy it that day they you know so they're backdating to an old phone but yet here in their own apple care plus terms and conditions it says the plan doesn't apply if there's a preexisting condition so the phone that they're applying it to had a cracked screen it had a preexisting condition and here they're saying that and that  you did ok let me keep going so that's a very critical piece right there are right if you're also looking at a plate a c plus certificate you'll see that it indicates it sounds like that the phone that she bought that day was the product that triggered the twenty four dollars months of it with respect to the number of incidents the district court agreed that there was a genuine issue as to whether english was denied coverage for a nd incident but found that she could not establish reliance because she never read the apple care pl terms and conditions and therefore could have only bled a breach of contract but english is relying on oral misrepresentations made to her by herself person positron their material misrepresentations english did sign the repair terms and conditions at the point of sale but that information is omitted and these are material omissions here apple's person with most knowledge williams confirmed at his deposition that apple care plus allowed consumers to future it's really important what he says there and if you read that side by side with page twenty eight of english his reply brief you will see that the initial phone that she bought from apple on february of two thousand and thirteen at the same time as  c plus warranty coverage counted as an incident and also she was that wasn't supposed to count as an incident it wasn't but it did it counted against her evidence  brief and then also through the healy declaration and the healy declaration and and their own briefing says that more people consumed nd incidences than any other program ever in their history they were so proud we're so proud this is a very great program more people use nd incidences than any other program it's yeah because the st time you go into the store it's counted against you so it burned through your st one and we also have a declaration from somebody who worked at apple gabriel tapia and he said that you know they've they found out that the st one burnt up because customers were coming in trying to use the nd one and they were like oh it's yours you don't have another one and customers were complaining like what do you mean i don't have another one we have call logs that show that so we have their own employees saying it we have call logs showing that it happened to my client the name of the program is apple care plus and role at time of an make the purchase and then the subsequent two times that you were supposed to get an incident but actually you never got that incident ok ok and then there's one other thing i want to show you too  got new phones yes but also your evidence was insufficient to establish a tribal issue on whether you got used phones what should we do in that in that case with regard to the gr tethered to classification so we had no idea that we were mitigating on her merits space individual claim contemporaneous i mean we were as far as we know that was the certification so the answer would be along toward of it is additional discovery and testing of her phone we have the phone so if this court were to allow us to test her phone and conduct additional discovery land against declaration as the hearsay declaration if i like the best answer why did you need anybody's permission to do this phone that was your  you yes we needed the permission from the sense that they would claim spoliation i mean we were working against not just apple but the the you know other forces it wasn't a level playing field and we wanted to make sure that we didn't you know take away an opportunity in somebody to claim spoliation which they said they would do but i did want to say this one thing if i may th nineteen it's a very critical document and i go into details in the briefing on it that's the trigger notes those are the documentation notes that apple's own documentation and it says documenting this english is attempt to use a nd incident and in their notes  says does the device pass or fail v m my visual mechanical expection that's what it means and it says fail eligible for out of warranty paid service reason chips are multiple fractures to front glass or back glass the whole reason why you have a c plus is so that if you crack your screen your friend black glass you can use it this is proof that you don't that she didn't get to use her incident they're failing at the reason because she doesn't have blath she had cracks on her screen do you do you see that's in their own documents they deny her an incident and that's what their document shows ok real quick the materials referred to by lanigan in the declaration were never produced in violation of rule fi zero all of the case laws says you have to it put the actual records upon which they're based in there at his deposition lanigan confirm that the networks have information about the phones are maintained by the enders and asia with whom apple works on  phones lanigan reaches out to them for information when he needs things it's not even the record it's hearsay on hearsay the declaration violates the best evidence rule it's contradicted by other evidence i tried to get the discovery on this  the court denied the certification in january and february filed a motion for reconsideration ask for discovery in march i filed a reply to the reconsidering and asked for discovery and april may and june the cases sta objected i propounded discovery august st apple wouldn't accept a service discovery so i sent it out by mail september st and that would have given them six weeks they got it september so that would have given them six weeks to answer there was ample opportunity for them to answer the discovery and to give me the answers to on what basis because one of my questions was what basis were the phones new or not what did you use to determine what did you rely on and they send their answers were very telling you know oh nothing admissible it's irrelevant back to those kind of answers there's nothing that will lead to anything admissible that's the response that i got and then the end the judge was happy with with all of the responses we briefed it we did everything the way that he told us to do and and one of his orders he says they answer you know tories well what about all of the requests for production we didn't even get one single document there was ample time for us to get that the phone had been in my former co counsels drawer and he had misplaced it and had forgot where had put it and that's why it wasn't you know when he located it was in october we had a plethora of motions requesting testing requesting guidance to testing and really he founded in october he located in october so you know and the hearing was in december and we did request the discovery on that phone and as far as the paper discovery part of it we've been requesting all along i'd like to reserve forty four seconds we will make sure you  i please the court i'm joseph power here on behalf of apple the district court correctly entered summary judgment on plaintiff's misrepresentation claims for lack of causation and lack of any misrepresentation and on her labeling claims because the phone she received were new the court also correctly exercised its broad discretion not to reopen discovery and postpone summary judgment proceedings in this long pending case like to start with mis representation claims and there are two kind of cross cutting issues there one dealing with oral representations and one dealing with written representations as the district court found plaintive did not assert that there was any genuine issue of material fact with respect to oral misrepresentations so those are out of the case that was a contrast to the class certification proceedings where there was a lot of argument about class about oral misrepresentations but when you look at the plaintiff's summary judgment opposition she was asserting a omissions theory based on the written representations that apple provided we pointed this out this was the basis for the district court holding that oral representations were not in the case point it didn't address that in her opening brief in any event the district court was what's correct that leaves written representations but the district court found those out of the case as well for the simple and basic reason that plaintiff acknowledged that she didn't read any of them and whether you look at that as a matter of article three causation or as a matter of the exposure requirement under substantive california law for causes of action those written representations aren't part of the case one can assert a false advertising claim based on an advertisement that one hasn't seen so with oral representations out with written representations out that left only the plain white box theory and the district court correctly concluded that the fact that this these replacement phones come in and on branded plain you recognize those now box where you are with their record and we reproduce photos in their briefs and they are quite different some of the branded boxes are white but they have the apple logo they have the image of the phone and they look quite different and you can take that box with you you don't take this plain white box with you the broken phone goes back and it's sealed up and you get sent back into the back of the shop you don't get accessories it doesn't represent not a representation of any kind much less a representation that what's in the box is new so that that was the kind of cluster of issues around representations and misrepresentation claims and then there was the secondhand merchandising claim and that claim failed for the on my research and analysis of apple's records the phone is a new phone so he can only be doing one of two things you can either be verbatim reciting what's in the record or he can be expressing his opinion as to what the records show and i don't see how you there of those would be admissible the st violates the best evidence rule the nd and permissible opinion by a non expert in iran it was based on his review of various databases and it summary judgment what matters is that the form that that party could put this evidence before the court at trial in some admissible form and here the visible form would be his personal testimony and apple's business records his personal testimony as to what as to his review of the databases i don't look at these records and this is what they say correct your honor how does that not violate the best evidence rule your honor it doesn't because  of all there was no such objection made in the district court and because at the summary judgment under this court's decision in fraser and under rule for it for fifty six dollars what matters is could the party put the evidence before the court in and mis form not whether the piece of paper is itself would itself be admissible and here he could do that by testifying and by by submitting the records but in the event judgment you asked what would happen if that didn't count the secondary the secondhand merchandising claim requires her to establish that the phones were not new it was her burden so even if you were to take that landing in declaration out then there was no evidence on either side and she hasn't into the fifty six d analysis judgment she had the opportunity to seek discovery on the landing in fact liberation and she lost that chance she didn't act in a diligent fashion the lanigan declaration came in with apples class certification opposition in september two thousand and fifteen discovery was still open then depositions were still being taken she could have sought discovery at that time as the district court found and she did not do so in july of tw a case management conference judge or accept if you've got additional discovery you want in your individual claims go out and get it she didn't do so until late august she didn't act with the diligence that's required to postpone summary judgment proceedings to get admissible evidence that the phones were new i mean it basically says i've looked at records and they say the phones are new and union produce the records or provide even in the declaration a basis for finding that the records actually were apple's business records your honor i think you have to look at this in the context of the entire case and when this declaration came in at a time when the newness of the phone was very much at issue and the plaintiff never asked for those records during that time when discover he was open and in fact came to the class certification hearing and said we accept that the phone was new and we recognize that might be a problem with class search but we will perhaps go out and find another class representative then the district court relied on that concession in the class certification denial said there's a concession here that the phone is new so i think you have you can't divorce the kind of evidentiary issues surrounding lanigan from the overall course of proceedings that judge or lived with for years he knew these parties he knew counsel he knew this case and he knew how discovery had unfolded and he concluded that enough was enough discovery shouldn't be reopened for the landing and to get look past the landing and declaration to test the phones that plaintive hadn't acted with the diligence that's required but even if you're not convinced that that the phone that apple established that the phones were new that nd hand merchandise claim fails for a separate independent reason it's one the district court found and unnecessary to reach but that we did argue below which is that there's no sale of merchandise here these phones are provided as part of a service as part of an extended warranty service plan although they only pay when they get the new phone they pay a service fee when they get the new phone it's the same service fee they would pay judge that if they if they phone was repaired the forty nine dollars service fee for you come in with your phone and you say it's not working if it's because of a software problem or a mechanical problem that was inherent in the phone it's fixed for free under the normal warranty if if it is an out of warranty because it's the result of accidental damage then apple will attempt to repair it that cost forty nine dollars if it can't repair it it will replace it you get a phone and you pay money wouldn't be a factual issue whether you are paying for the phone or for something else that isn't covered by car i don't think so your honor i think you would look at the terms of the contract and you would look at the nature of the relationship and the nature of the service that's being provided i don't think there's a good you're calling a service is not conclusive that exchange for money we might characterize as a sale i don't know that it's conclusive i think it's quite relevant and it is it's apples label i mean you can call it anything you want right you want to but these aren't phones that are kind of out on the display for that someone says i want to buy that phone these are in this service stock in the back of the store that are brought out as replacement phones pursuant to an extended warranty so it's not just the label although the label is important it's the nature of the contractual to the replacement transaction i don't have the right in front of you are we in our read brief we do cite to the portion of our sort of summary judgment motion where we where we made this argument and we've made it again here as an alternative ground for a  on the two years issue your honor judgment you asked this question the receipt the certificate couldn't be any clearer it says coverage period and date september th two thousand and fourteen purchase the i phone i mean the way she got it for free she entered into a wireless contract that was the consideration for the acquisition of the phone so it was a contract with somebody else entirely not apple and sprint advertised that i'm sure you're getting a free phone that's part perhaps true your honor but the coverage period end date on the certificate clearly says that it's two years from the acquisition of that phone and that actually makes sense this is an extension this is a one year extension on that basic warranty so and for this limited time period that is at issue here apple prevented presented customers with the opportunity kind of a buyer's remorse opportunity like i wish i'd bought an apple care plus when i got this phone originally so if you come in with a cracked screen as miss english did afforded that customer the opportunity to kind of go back in time and get the apple care plus  originally could could have obtained at the time she acquired her phone but she doesn't end up better off because she delayed and so apologise i want to go back to an issue you talked about early in your argument were use that it's clear that the plaintiff waived a summary judgment she talked about representation by employees and what apple of associates why isn't that sufficient to not be not to be considered a waiver  or misrepresentation theory well the district court correctly exercised this discretion to conclude that that wasn't enough and that was correct it's not enough to just attach a bunch of declarations it's not enough to just generically refer to misrepresentations if you look at and sixty one dollars a a party asserting a genuine issue of material fact must quote cite to particular parts of materials in the record and then fifty sixty three dollars says the district court need consider only the cited material now  discretion to go further and consider other material in the record but it's not obligated to do so and the district court did they were almost a representation claim on the merits of what went on well i don't know that it decided on the merits with respect to  that they weren't part of the case and then it concluded that any of the written materials were both also not part of the case because there was no causation she wasn't exposed to them and they weren't misleading in any event they were completely accurate she says that that apple consistently did provide nd incidents and did not count the incident at the time of acquisition in her declaration of reading it correctly essentially on what her subordinates told based on her own review and her and this is a corporation of course and it acts through agents and we haven't had a particular evidentiary objection even in this court to the healey declaration and in fact the plaintiff's counsel attempts to rely on it herself  points to the tapioca declaration as supposed evidence that there was some widespread pattern but if you look at yard twenty eight dollars foot no twenty one dollars the district court excluded that portion of the tapir declaration as conclusory and speculative because he acknowledged that he didn't know how i computed these incidents that as a genius he was a line level retail employee he all he could see was that there were no incidents left he couldn't see what incidents had been used or how they had been used and he had no idea how the software worked he was speculating in the district court correctly found that there was there was no basis for that speculation so with him out and with healey end all you have is nature and sort of the greater good beyond these consumer transactions a couple of i phones a shortened number of incidents or shortened time on the plan if they correct continuous service n t since by a retailer like apple to an average consumer in america every dollar counts and helps i know it matters to miss english as a nurse so this honorable court has within its power to help billions of consumers in the years to come just through this case i'll be at its individual case but what you do today and what you all decide can impact greatly apple's practices going forward and you'll see many many people recovery was not for just one thousand three hundred dollars for one phone we dispute that's the amount of of the or the correct number of the phone stephen consider but there's also the value of the sprint phone she turned into diminish deposition costs etc plus apple requested english pay apple's costs so we have to face that as well going forward i've been working on this in this case for approximately six years this is the number and i told you the number of hours i've spent has been the five digits i've exhausted resources gone into debt and i've learned a lot and i'm grateful for that again but we don't want to move forward unless we get a different court and then back to some of what he said earlier one thing i want to know as far as the polishing the apple positive english the salesperson that is your salesperson we disposed of when he was asked why do you bring a white box out why do you go through that whole thing he actually testified he has the customer peel the plastic off the face of the phone and at the end of the day the person that makes the decision as to the attorney's fees is judge or and then get paid nothing for twelve to fourteen years and have just continued to be in debt and i talk to do with my client and you know we're on the same page i mean we want to see reform we wan see change happen we put in seven you know six years six good years if this court is willing to change to a different court we'd be happy to but respectfully george has a great respect for apple and he's very concerned about burdening apple that's been a  consistent theme throughout and you know if this court just me it gives us a chance with the fresh perspective some you know a court where we can get a fresh perspective we'd love to move forward with this case will fight zealously for the consumer for the little guy ok all right thank you very much english versus apple inc submitted for decision and that computer argument