precedent of both california supreme court authority and california statute going back and some form or other to eighteen seventy two and that statute your honor california supreme court were clear you would be right but i damage that there are a few cases on this issue very rarely would a business say well you're not going to get your deposit back even though we meet all the sold that you need product to a replacement purchaser for a higher price people generally make it they still charge you and they charge that and they might room short because in accordance with the statute your honour's it will be impractical or extremely difficult to fix what the actual damage is because most of the damage would be if they had so go back to somebody analogy to the millennium hotel nevada two thousand new year's eve if you had a reservation for the hotel december thirty first one thousand nine hundred nine and that was full and you had to cancel i submit that was not fundable people wanted to be there for new years your honour's if they were sold out and you had to cancel i submit in that situation depending on what nevada statute says the hotel could not keep your money because in that situation as long as they immediately resold to another purchaser likely for a higher price being made money on that and that's a set sail they otherwise would not have made well this is sort of leaping over several other issues but that has to do with what the impractical assuming that this was like a day dama or you look at it forward and whether it would be if you had to chuck it it's chop the i mean you could estimate the damages if you chop the circumstances into enough subcategories which is true in your instance as well in other words in the instance in the which the the cruise is sold out and they have waiting people and awaiting people take  the place that is easy to figure out the damages are very minor damages but the question is what if you try to pressure that fellow or does that make a difference your honor it does i know when you read the travel company's brief it may not be clear but the statute i'm referring take a look at the evidence not just at the time of breach but after what happened subsequent there too and i'm not going that far your honour's all i'm saying is this i'm sorry and according to a california supreme court law and the change the way slate made in one nine hundred seventy seven offset by the higher price they charge the closer you get but i'm not saying your honour's this in a real state contacts you could have people say well gee court would you please impose a constructive trust on my spot i cancelled and they won the head and then we sold matter it does matter because i agree with the district court that bouncing a check at once but does not constitute a breach it's something that we may do we pay a fee for that but that doesn't mean it's looking to damages clause because the contractual relationship continues happened is the cruise company said ok you're not going to trip that said they thought somebody else immediately my clients could not change their mind the next day the next week and the next month that was gone that was no contractual relation why is that a find when there's a breach or not i mean you mean don't you're in breach and we're going to charge you x amount of money but we're not going to cancel your you know you can continue to deal with us sure i mean as the california supreme court said in garrett piece of the coast and southern what matters is th no refund policy they just said you have to pay by three months ahead of time and that's it i mean either show up you don't show up the room is yours and if you don't show up you know where you are there's a contractual issue price now i just want the money back but to you company constitutes nothing but an unconscionable windfall but then conscionable par i mean you're not arguing the unconscionable ability issue anymore as such right not  extent that this is unjust enrichment they're making they were glad my clients cancelled they made money by immediately reselling to somebody for hundreds of dollars more and then they kept on top of that forty percent of my clients money that cannot be justified your honour's under section six hundred seventy one or like help wanted to bring court authority interpret it since then the airlines would face the same issue correct all your honors i would say only in very unique circumstances that exist here if you have a ahead of time and i cancelled and immediately we sold that somebody else made a sale the otherwise not have made then yes i believe six hundred seventy one d requires the consumer to get his or her money back i believe it's that simple your honour's i know the other side tried to difficult to fix the actual damages but in your situation it's not impractical so therefore another's you don't you have to buy into the notion that it's always held could be a jab just provision but it's but it is enforceable sometimes and not others it may be a liquid is not any difference about the contract it's a difference about how it played out in a particular circumstance so it seems to me that it has to be either always a liquidated damages clause but sometimes a valid one sometimes an invalid one or never liquidated  damages clause well you are as they said in garrett v coast and southern you have to take a look at the substance of what's going on and in some cases such as this one it's clear when you're paying forty percent because you're off performing in the contract that is not some kind of alternative performance you know what i'm not performing as when i'm not understanding you're saying look i'm i have already painted and i'm not coming but i didn't contract had that right to be there no reason though consumer early sophisticated consumer would want to pay seven thousand dollars and less they had every intention of coming in that was part of the agreement that they indeed would be coming on that boat and there better be enough fuel to have two thousand people on that lower level so yes your honor the understanding was they were in fact going to come so by breaching and saying i want my money back that in effect remove their performance that hey you now have a duty to mitigate your damages and more specifically under six said well even if it looks like you may get your money back we still prevailed on parallel theories of recovery like conversion so we should keep most of the money and that's fine but what about the notion that if you were to look for money basic issue when there were no out of pocket damages and yet refused to give back the money force the plaintiffs to file a lawsuit and then gazed in various i'm sorry is that a federal question or or is your honor it's federal courts state statutes where you have federal statutes what we don't have is a case on record where the district court had a california contractual provision i submit there's no difference it's the perfect proverbial distinction without a difference they have had a washington talking about anderson the mail wanny ninth circuit in one thousand nine hundred nine it's on page eleven of the opening brief on the five five seven three seven case your honor it's once a contractual case good afternoon your honor james when from davis ranch maine on behalf of the police this court can affirm the district court's rulings below for three clear reasons first there was no breach of contract at issue here and second even if there was we would meet the liquidated damages standard under section six hundred seventy one d and finally i believe the attorneys fees provision was very award was very reasonable on the first issue your honor the question becomes when a consumer but some type of travel booking a hotel an airline a cruise ship ride a tour operator even going to a restaurant which sometimes will make you take a not place nonrefundable deposit is that obligating the consumer to actually go on the trip or go to the reservation in the clear answer is no what the reservation does is provide the consumer certainly the right to do so but in this case the guest agreement made very clear that the consumer has a right to cancel the reservation at any time and depending on does not make a difference they would be breaching a requirement to pay but then that my feeling in that situation is that the contract probably would been conditioned on their payment in the first place and as you know with cruises typically they require some type that they would be entitled to refund maybe they don't set the contracts up that way but so that they in fact they had an obligation to pay a certain amount of money in a certain they didn't do it now can they contract says and in the situation it is a very amorphous line it seems to me which when you're purchasing the right to an alternative performance or you're you're preaching he's saying they breached by not showing up you're saying no they did breach by not showing up that's correct your honor because when the consumer but prepaid the entire cruise their obligation is over they paid and therefore they have oversight so you actually think is hypothesizing here which is if you pay to make a partial payment let a deposit and you have an agreement which says you have to pay the remainder of the cruise field for a period of time and then you don't make the payment at that point i would say that the consumer has breached the obligation to pay but their right to be on the cruise would not exist because they haven't completed the payment obligation in that scenario i would say that the travel company would have a right to retain depending on what the agreement said some amount of where the cruise company is worse off i am what you're saying is that they protected themselves here by all the money in advance correct your honor and that is why airlines do the same thing it's not a situation where you can both airlines usually do not  take your money if you don't show up or narrowly they don't they're strong to do it i think many danger additionally they have not precisely because they expect resound i don't know what they have your honor actually i would disagree with that because many airlines now give you an option of paying for a fundable fee or nonrefundable feet and then when it's for fun to fall that means that you could buy a different ticket for a different place you can get a credit towards a future flight you know that they keep your money and that don't give you anything else this this  understand it did not allow you to transfer either a different different cruise that's correct your honor and that is but at something that is communicated to the consumer upon the time of booking it's something that airlines do all the time hotels do all the time which is to say if you book the hotel within let's say a certain window certain rooms maybe nonrefundable if you cancel you only get one of your room nights back but not the entire price and in this situation the reason travel companies do that is pointed out to offset mitigate the risk to protect themselves and in the scenario when the consumer is booking the travel reservation there's no breach by the consumer when they don't show up that is why airlines never let you pay a partial payment i've never heard of an airline that says  certainly may not seem particularly fair at initial glance from a consumer's perspective doesn't comport with your notion i didn't breach something cannot have my room anymore well your honor if you book a hotel room and decide you're going to cancel it you didn't breach anything because you have a right when you book a hotel room to say i don't want to go there anymore there's been no contract for breach part of the consumer the only question becomes what is the financial consequences to you as a consumer if any for canceling the hotel room for some hotel depending on what the arrangement is there's no financial consequences you can breach and you don't you get your money back if you've made a deposit for other hotels they tell you in advance if you book with for this particular date because it's a special date or if you book within a certain window of time if you cancel then you're not going to get your money back and that something is communicated to consumers and that scenario if you cancel your reservation i don't see where there is a breach of the contract by the consumer or by the hotel and that's what happened in this situation there was neither a breach by the consumer the plaintiffs had every right not to go on the cruise they secure their reservation once they chose to give it up that wasn't a breach and therefore the travel company had every right to retain the cancellation charge that was communicated to the don't think it even applies to the scenario that's our primary argument that's what the district court found that when you make a travel reservation think about the produce case from the california supreme court and that involves the insufficient check funds issue right there six dollars fee that i imposed upon the consumer if you write in sufficient check with insufficient funds the court found that when you as a consumer enter into your agreement your bank you're never promising i'm never going to write an insufficient funds check you just agree in advance  it in that situation you would look to see whether or not the liquidated damages met the provisions of six hundred seventy one i keep waiting for you to say something about the economics going on here presumably these crews cost travel company and therefore allows them to offer their cruise offering to consumers for a price that brings down the price for everyone it's sort of you know it's analysis it's sort of saying that in this situation the truck company is not the cruise line they contracted the charter with the cruise line and agree to a minimum contract and when they're doing that they're taking on a big risk a multimillion dollar risk for booking out entire cruise ship and therefore to mitigate against their risk they say look if you book and make a reservation we can charge you here the amounts for all the different happens if they had to take on the risk that people canceled and they couldn't get any of their money back that would ultimately lead to higher costs of business and therefore overall higher costs for everyone and this is when the reasons why defining in advance for both the consumer and the travel company what's the cancellation charge would be benefits both sides otherwise your honour's if you look to a situation where you were to look  in the future at the time a passenger were to cancel that would mean all kinds of variables would come into play let's say plaintiff's counsel and two other customers with the same tappan canceled but only two were booked out of three in doesn't mean that it says something as the word case in it but it says your honor that except that the parties to such a contract may agree there in upon an amount which shall be presumed to be the amount of damages so it contemplates the parties agree  section six hundred seventy one d and in that scenario it dealt with late charges on a credit card and those late charges as well as overlimit fees were placed in the original contract between the consumer and the credit card company based upon that the court observed that the amount of liquid it damages must represent the result of a well endeavor by the parties to estimate the compensation but that estimation occurred at the time of contracting and clearly in both and from the nature of the case it was impractical  liquidated damages the case law indicates presumes that it is set in advance at the time of contracting if we evaluate later in time when there's been a suppose a breach what the fair compensation is not what i'm saying  at the time of the contracting as opposed to at the time of a dispute later on and that's what hits versus first interstate bank california appellate court did in evaluating this very subdivision six hundred seventy one d in fact it said that the focus is with language for the nature of the case that seems to talk about a case your honor i understand i think that the nature of the case is not necessarily involve nature of the lawsuit it may mean the nature of the case of the contract that's being formed between the parties i would agree that it's somewhat ambiguous what the nature of the case means but i don't necessarily read it to mean the nature of the litigation that ensues it could just as easily mean the nature of the case of the contracting in the first place and your honor the final point i would make my remaining time is that if we if we evaluate the provision here which is a very common cancellation policy in many situ in many hotels and airlines where they may book out they may fill up someone cancels and they keep their money and the airline might make some extra money it would turn the entire travel industry on its head and you can't always assume that just because someone counsels and because  flights or the cruise and being full that the airline or the travel operator ends up making double profit there's all kinds of reasons why the cruise might have filled up their could have given away cabins at a lower price in order to fill up the cabin and give away free cabin suites all the time and requiring that analysis to happen later would mean that when i'm a consumer and i cancel i won't know whether or not i'm going to get my money back or even all of it or a part portion of it and that creates an untenable situation for both problem companies and tour operators and for that reason your honor i would ask the court to affirm the district  thank you your honors consumers actually would love to know that if the cruise ship had no damages they would get all their money back they would like to know that the ceiling they would lose up to forty percent of their deposit but contrary to what the travel company said consumers would like to know  in some cases john if you cancel less than thirty days they get one hundred percent of your money and that's pure profit for them so i disagree on this is cancelled and i was sensible at that point just bought her gasoline just you would want to notify interstate didn't have the situation we have here your honour's where the company had no damages or the i'm sorry here where there were no damages but in first interstate there were late payments going in and those were hard to determine at the time a breach completely different circumstance and distinguish that case in a footnote that you only get there if you are sixty seventy what applies to begin with if i could just say you're on of the thing about form over substance apply the california supreme court says if we let form dominate over substance this exception to be swallowed up in the protection as you tell us in one or two or three sentences what is the law in california i'm sweeny circumstances which are regarded as alternative performances and those which are regarded as liquidated damages absolutely your honor and this is the situation it's form over substance and this is what you look at if you want a contract for an option it's usually called that if you want the option to buy one hundred shares of i b m you're going to put that the webster all from cell cases zoom would say i will pay forty dollars for the right to buy i b m shares at twenty two by next december they would do that in the situation the substance of what's going on a consumer is never going to say i'm going to pay sixty percent for the option to go on this cruise they know that in essence what they're contracting for is the right to be on that cruise during that time and that's not what happened here your honor that's not the situation where you have an option contract with a truly ought to do something else thank you find that here anderson thank you