of a loud talker my i'll try to soften it your honor but this court should reverse a lower court's ruling and find that appellee is compelled to arbitrate his claims against appellants pursuant to two separate over tracing agreements is the owner operator agreement that he executed in two thousand and ten in which he manifested his assent to arbitrate in two thousand and eighteen when he demanded arbitration with the american arbitration association specifically referencing the agreement and the nd is the agreement in writing that was reached between me and his counsel by email following that initial demand for arbitration here a state the court has jurisdiction to hear it they got even if the court decides that there's not an arbitration so wouldn't be dismissed for lack of jurisdiction if the court found there was an arbitration agreement than that we would lose on the merits you know depending on on how the court ruled in that regard  but makes this case different from most of the cases that both parties cite is in this case the appellee with very sophisticated counsel wrote to tripoli and wrote a demand and said we demand arbitrate not just against a signatory but it gets a two other  and said hey we received an arbitration agreement if you look on page one hundred and seventeen of the record i wrote them back and said hey we haven't received a demand for arbitration but given that there's an arbitration demand has been served and i started talking about the requests for payment being premature as a whole i mean i'll acknowledge the term alternative dispute resolution is unambiguous in some respects because it has a finite universe of what it could mean but it's still ambiguous because it could mean multiple things and this court is permitted by sic california supreme court authority to consider expects trinsic evidence to interpret the meaning of the agreement and when we look at the course of dealings with the parties when the when the dispute st arose we have a demand for arbitration and the subsequent not following the logic of the banner case that interpreted the exact same agreement the arizona district court back in two thousand and seventeen and ultimately held that it didn't survive based on the survivability clause as your honor knows we're he in traditional labor law and under a collective bargaining agreement it plainly says that the presumption applies to dispute resolution provisions not just arbitration an compel arbitration and for the st time in a letter back we got a letter saying we don't think it's an arbitration agreement we don't think it survives but all conduct before that said otherwise so basically they just made up that permit in arbitration i never will because that's just not a fair reading of the correspondence of page two of two of the record my e mail says my clients do not agree to use aaa to administer his arbitration doesn't it doesn't refute arbitration and it says we can confer to try to reach an agreement on an arbitrator which happens in every single case that there's an arbitration agreement and then use his or her likable service to arbitrate the matter and then they then they sent me that demand again be or not again because they hadn't sent it to me before and then i sent them proposed arbitrator's they they presumably huddled up within their law firms and decided like hey this is an opportunity to bring a nationwide collective action and challenge this thing and then they file a lawsuit and here we are a year and a half later but there can be no doubt when we look at the conduct of the parties before there was an agreement to arbitrate and any characterization otherwise by appellee at this point is pure opportunism just you know focused on the part where i indicated of my clients would not agree to arbitrate for aaa i say just going back to the presumption even if the court disagrees that the presumption applies which just i never really got to see it but the little court makes clear that it applies to  as a matter of contract interpretation that they don't intend a pivotal dispute resolution provision to go away it can all and i don't know only be negated by express your by clear implication but even with out it if we look at the contract as a whole yes it has a survivability section that excludes the dispute resolution provision but that survivability section is not exclusionary it basically just says the five sections that explicitly references that survive it doesn't say these other ones don't survive or accept this set forth here in and and the court is obligated to interpret the agreement as a whole and when you look at the agreement as a whole there's five other sections that would presumably survive absent the survivor section provides a diligent agrees to pay an operator agrees to accept as his entire compensation for completing a client agree and gave me a fixed sum and therefore if the court held that the dispute resolution  provision didn't survive diligence obligation to pay wouldn't survive as well one last point before i yield my time the agreement isn't forcible pursuant to equitable stoppel because the core the crux of of pelleas claim is that it was mis classified as an independent contractor and the st of many complaint is replete with allegations referencing the owner operator agreement as being the basis for control section seventy four says policy set forth and the owner operator agreement dictate how and when drivers complete their assignments and control drivers work and the paragraphs that follow describe various ways the owner operator agreement controls are work and these allegations are incorporated by reference throughout in every single claim in the st amended complaint and therefore the claims are intertwined with the allegations with the able to enforce the agreement under principle equitable stoppel because the claims are it's really founded in answer to why and with the owner operator agreement based on the allegations of control that specifically reference the owner operator agreement and are tied to every single one of my claims i like to reserve the rest of my time for above your honor thank y arbitration agreement and thus diligence motion to compel arbitration pursuant to the f a a must be denied as i understand diligence argument diligent does can see that that the language of the dispute resolution provision is not  it's arbitrary but rather it's argument is that plaintiff later agreed to arbitration by filing a demand in the aaa however this reader proposal was rejected by diligence and whether an agreement to arbitrary existed is governed by california contract law which requires an acceptance to be absolute and on a qualified acceptance is a new proposal diligence acceptance if that's what it could be called at all was qualified the parties did not reach a standalone arbitration agreement under california law if there is no arbitration governed by the f a a the court should not reach the other issues diligent presents which are all matters of contract law interpretation invoked the f p a as the basis for the court's appellate jurisdiction and b s issues including whether the dispute resolution provision survives whether it extends to non signatories and whether the class waiver is enforceable do not implicate the your honor i would i would disagree that it makes him look bad that he he did offer to arbitrate under certain terms in the aaa which obviously comes with it a whole set of rules and procedures  ensure the neutrality of arbitrators through the selection of arbitrators rules governing the procedure and diligence rejected that offer and instead proposed to go outside select an arbitrator outside of any for yes that's right there the dispute resolution provision the a t r part of it was essentially an agreement to agree which under california law is generally unenforceable because it calls upon the parties to reach a later to market as a form of a d r it did not require them to do so and so for that reason diligence argument that the fact that he gets later filed an arbitration in the aaa does not show that the parties intended for the  reading of this is the right person a g r hasta me are christian your honor i respectfully disagree arb any contract under california law has to be interpreted according to express terms and here the expressed terms of the dispute resolution provision do not require arbitration under california law arbitration is a method of dispute resolution but arbitration and dispute resolution are not interchangeable terms so  so it isn't in our view the explicit terms of the agreement control and the explicit terms are that the parties could agree to a mutually agreeable form of a d r that could be mediation that could be a negotiation that could be binding are to affirm the district court's decision that the dispute resolution provision did not survive the agreement layton did not announce the general federal common law of survivability  exactly the requirement was operating under the authority of federal statute to develop a body of federal common law applicable to collective bargaining agreement then so that's really the context in which agreement as i've already argued there is no arbitration agreement here and so consequently the court need not decide whether to extend leighton beyond that federal labor context in order to decide this appeal moreover here unlike which village and hence are aligned the other questions if there's no arbitration agreement really comes down to whether the port is going to order a specific performance of the contract and here the court did not do so on the ground that  d r provision as i mentioned is essentially an agreement to agree and under california law suits in death and that provisions are just not enforceable it's not because it's ambiguous it's clear what it requires the problem is that when it comes to specific and performance the courts have to know what compliance means it has to know what it's ordering the parties to do and here the court doesn't there or there is no final agreement the party still have to agree on the method of  issued a tentative ruling where it sort of mold over all the different ways in which the court could deny the motion to compel arbitration and one of the ways was even if it did survive that it would not be enforceable and so we're not putting that aside if you look at the negotiate directly provision is also to indefinite to enforce there's no basis for determining what may constitute compliance or a breach and moreover even if the parties were ordered to resolve the claims directly that can preclude plaintiffs from firing in court if those efforts fail the right to a jury trial cannot be waived under the california constitution unless the waiver is pursuant to statute and while california law allows for the waiver of the right to a jury trial in the case of arbitration there's no provision of california law that would permit a previous waiver review greenman calls for the parties to resolve their claims directly outside of any form the california labor code also prohibits plaintiff statutory claims from being waived pursuant to any private agreement so leaving the resolution of this claims to the discretion of defendants and whether they're willing to reach a reasonable compromise would effectively constitute a waiver of plaintiff's labor claim and so for those reasons we would argue that to the extent that the court could order specific performance of the the directly prong that it would only can only be construed as an exhaustion requirement which in this case the parties have already satisfied and you cannot constitute a waiver of the plaintiff's right to seek redress in court if the parties are not able to resolve much thank you are just a few quick points the absence of a presumption even under california law would lead to an absurd result it would allow a claimant to lie in wait for the contract to terminate to absolve himself of the obligation to arbitrate a dispute here the evidence is that mr baines declaration says that his that he contacted a lawyer in two thousand and seventeen before the agreement terminated in order to bring claims and he affairs although i think it's hearsay a lack foundation that his lawyer contacted diligent and then a week later the contract terminates and if there was no presumption of survivability he would be allowed just to essentially wait out the termination of his contract  just the discourse today in the court there's a disagreement as to what that means and the california supreme court case of bowman vs burke says quote although one agreement may be indefinite or on certain in its inception subsequent performance by the parties under the