[00:00:00] Speaker 02:
May it please the court.

[00:00:03] Speaker 02:
California has a strict statutory scheme requiring brokers who perform brokerage activities within the state to be licensed, even for de minimis brokerage activities.

[00:00:14] Speaker 02:
Persons who lack a California broker's license cannot recover compensation for such services.

[00:00:20] Speaker 02:
And making the determination about whether one has performed brokerage activities within California is a highly factual analysis.

[00:00:30] Speaker 02:
In this case, AFC Realty Capital engaged in loan broker services purposefully directed towards Californians, appellants, the Dale and Ranchod parties for a commercial hotel conversion project in Sacramento.

[00:00:45] Speaker 02:
AFC's principal, Mr. Fefferman, traveled to California in his role as broker to personally view the property

[00:00:51] Speaker 02:
and discuss the project with Mr. Dale and Mr. Ranchot.

[00:00:57] Speaker 02:
And it's undisputed that AFC and Mr. Fefferman are unlicensed in California.

[00:01:05] Speaker 02:
Therefore, we believe the district court erred in granting summary judgment in this case and awarding it a broker's commission.

[00:01:11] Speaker 02:
At minimum, there are tribal issues of fact in this case in which summary judgment is inappropriate.

[00:01:18] Speaker 02:
Therefore, the judgment should be reversed.

[00:01:21] Speaker 03:
Ms.

[00:01:21] Speaker 03:
Roussos, can I ask you, you used the word purposefully directed, but we're not dealing with a question of personal jurisdiction.

[00:01:30] Speaker 03:
It's more of a statutory construction.

[00:01:32] Speaker 03:
And the statute talks about brokerage acts within this state.

[00:01:39] Speaker 03:
And so as you know, we have this Ninth Circuit opinion, Consul Limited.

[00:01:43] Speaker 03:
that interpreted that statute to refer to only the acts that are brokerage acts or services that are conducted within the state's boundaries, but excluding those acts that are out of state.

[00:01:58] Speaker 03:
Why is that not binding on us?

[00:02:02] Speaker 02:
The facts of Consul are very different than the facts here and procedurally as well.

[00:02:09] Speaker 02:
And I'm going to address Consul, but I wanted to mention in your question you noted the purposefully directed language.

[00:02:19] Speaker 02:
And that comes from the California Department of Real Estate's advisory opinion on what it means to conduct brokerage activities within California within the meaning of the statute.

[00:02:30] Speaker 02:
But turning to Consul, that was a motion to dismiss on the pleadings.

[00:02:34] Speaker 02:
It was not a summary judgment case.

[00:02:35] Speaker 02:
There was no evidence in that case.

[00:02:38] Speaker 02:
it was a pleading case only and in that case the court actually what the court held was that

[00:02:47] Speaker 02:
there was no facts there indicating that there was any brokerage activities conducted within California.

[00:02:53] Speaker 02:
The only fact was that some properties were located in California.

[00:02:59] Speaker 02:
That was it.

[00:03:00] Speaker 02:
In fact, it wasn't even clear that anything had begun in that case because these were future agreements that had not been performed yet.

[00:03:09] Speaker 02:
The facts of that case are very thin.

[00:03:12] Speaker 02:
There's very little to compare it to the case here,

[00:03:16] Speaker 01:
So let me jump in there.

[00:03:18] Speaker 01:
What I mean, the facts here we have property located in California.

[00:03:21] Speaker 01:
We have the client located in California.

[00:03:25] Speaker 01:
What else do you have that's located in California, because it seemed to me that console was pretty analogous.

[00:03:31] Speaker 02:
So we have a few other facts.

[00:03:33] Speaker 02:
First of all, again, Mr. Fefferman did travel personally to California to view the property and to discuss the deal with the appellants here.

[00:03:43] Speaker 02:
And that is a different fact.

[00:03:45] Speaker 02:
That fact was not in console.

[00:03:47] Speaker 01:
And when he came to... What about that visit indicates that he was engaging in broker activities during that visit?

[00:03:53] Speaker 01:
Because I actually thought that

[00:03:56] Speaker 01:
Your clients in their testimony basically conceded that during that specific trip.

[00:04:01] Speaker 01:
He wasn't doing brokerage things.

[00:04:04] Speaker 02:
I don't believe that they conceded that but what The reason that that was brokerage activities is it was part and parcel of this agreement which was an agreement for brokerage services and when he came to California it was with his broker hat on he was not here and

[00:04:22] Speaker 02:
for any other purpose other than to fulfill this agreement.

[00:04:26] Speaker 02:
And so it was information gathering and part of the in furtherance of pursuing these brokerage activities in order to arrange financing for this project.

[00:04:39] Speaker 02:
In addition, this was purposely this activity was purposely directed at Californians.

[00:04:46] Speaker 02:
So we do have appellants are all in California.

[00:04:50] Speaker 02:
The property is in California.

[00:04:52] Speaker 02:
The appraisers, the construction firms are in California, and Mr. Fefferman was extensively communicating with CBRE and with the construction firm in this case.

[00:05:04] Speaker 02:
In fact, he arranged the appraiser

[00:05:09] Speaker 02:
He actually arranged the appraisal with the lender.

[00:05:13] Speaker 02:
And in fact, I'm looking at pages 399 to 340 of the excerpts of record.

[00:05:21] Speaker 02:
And that is an email from Mr. Fefferman about suggesting doing the appraisal and him actually

[00:05:29] Speaker 02:
making all of the arrangements with the California approach on that.

[00:05:34] Speaker 03:
I guess I go back to my earlier question.

[00:05:37] Speaker 03:
If purposeful availment had been in the statute, I think you would have a much stronger case to make.

[00:05:44] Speaker 03:
As I read the record or understood it, Mr. Fefferman conducted all of these activities from his New York office.

[00:05:50] Speaker 03:
So I agree.

[00:05:51] Speaker 03:
He made many arrangements and sought lenders and did other things from New York.

[00:05:56] Speaker 03:
But we're still stuck with the plain language of the statute, you know, acts within the state.

[00:06:04] Speaker 03:
And we have a Ninth Circuit panel that has held that.

[00:06:08] Speaker 03:
And I'm not aware of any state court decision that has expressly disavowed or disagreed with consul.

[00:06:18] Speaker 03:
since its decision in 1980.

[00:06:21] Speaker 03:
Is there anything specifically about this issue about brokerage services that has been published in California that would contradict Consul?

[00:06:31] Speaker 02:
Well, Your Honor, no, not specifically on brokerage services, but there is the advisory opinion from the Department of Real Estate, which is based on the California Supreme Court's decision in Burr-Brower.

[00:06:40] Speaker 02:
And Burr-Brower is a 1998 case, I believe it's of

[00:06:46] Speaker 02:
much subsequent to Consul.

[00:06:49] Speaker 02:
And Burbrower discusses what it means to practice law in California.

[00:06:53] Speaker 02:
And I would say that within California and in California are essentially the same thing.

[00:06:58] Speaker 02:
The term within, one of the meanings of it is in, so it's essentially a similar phrase.

[00:07:06] Speaker 02:
And it's an ambiguous term within California and therefore the Department of Real Estate

[00:07:11] Speaker 02:
Their analysis is highly persuasive, Your Honor.

[00:07:14] Speaker 02:
It's not based on a personal jurisdiction analysis, but it's based on the Supreme Court's analysis on what it means to practice law in California, which is analogous in this situation.

[00:07:26] Speaker 02:
And it's not a simple question of whether someone has entered the geographic limits of the state.

[00:07:35] Speaker 02:
And I would also note that Consul has never, as far as we can tell,

[00:07:42] Speaker 02:
As far as I can find, Consul's never been cited on this issue, except in this case and in the related case that we mentioned in our brief.

[00:07:54] Speaker 02:
It's a choice of law case.

[00:07:56] Speaker 02:
It's a very different case.

[00:08:01] Speaker 02:
Typically, I mean, it has not been cited for this issue.

[00:08:05] Speaker 02:
The California courts would have no reason to, or the California legislature would have no reason to respond to Consul when it really hasn't been used.

[00:08:14] Speaker 03:
But I guess the difficulty is if we were to overlook Consul, which is on point, we would have to try to predict what the California Supreme Court would do.

[00:08:25] Speaker 03:
And I suppose the best that you would say is in Burr-Brower dealing with an attorney, you know, with legal practice issues, the court said, it didn't say one way or the other whether, you know, it's a highly factual context.

[00:08:42] Speaker 03:
And so that's a little bit of a thin basis in order to say, well, we predict the California Supreme Court would say that actions outside of the state would also be encompassed within the phrase within the state.

[00:09:03] Speaker 02:
And I appreciate your comment, Your Honor.

[00:09:06] Speaker 02:
I think that, first of all, I don't agree that Consul is on point.

[00:09:10] Speaker 02:
Again, it's not a summary judgment case.

[00:09:12] Speaker 02:
In that case, the court stated that if there was evidence of activities performed within California, then the parties could come back.

[00:09:21] Speaker 02:
And I think that we do have that here, including not only the trip to California, but the extensive contacts with California.

[00:09:29] Speaker 02:
in terms of arranging the financing in this case, including with the appraisers and other entities involved.

[00:09:38] Speaker 02:
But just again, looking to the Burr-Brower case, the court in that case, it is a highly factual analysis.

[00:09:45] Speaker 02:
And the court used a qualitative analysis to look at the nature of the context.

[00:09:50] Speaker 02:
Were they merely fortuitous, insignificant,

[00:09:54] Speaker 02:
was it a significant extensive contacts as well as here and what the DRE looks at is whether that the contacts were designed to serve the real estate needs of Californians and whether they were substantial repeated systemic

[00:10:14] Speaker 02:
substantive and I believe that we have that here but again this is a summary judgment case and the facts must be viewed in the light most favorable to the appellants in this case and looking at all of the evidence here I mean there's extensive brokerage activities I think the records very clear that there's brokerage activities whether they're within California is a question of fact that looks at the nature of those activities and there were extensive contacts with the

[00:10:43] Speaker 02:
California's not just my clients, but extensive contacts.

[00:10:48] Speaker 02:
If this was a case involving whether there was practice of law in California, I think there'd be a question of fact here.

[00:10:54] Speaker 02:
And it's a highly analogous situation to the present case.

[00:11:00] Speaker 02:
There was

[00:11:03] Speaker 02:
The contacts were designed to serve the real estate needs of Californians, my clients.

[00:11:08] Speaker 02:
The contacts were substantial.

[00:11:10] Speaker 02:
They were repeated.

[00:11:10] Speaker 02:
They happened over many, many months, and they were not random, isolated, or fortuitous.

[00:11:17] Speaker 02:
When Mr. Fefferman came here, he wasn't here, you know, on a trip for fun or

[00:11:25] Speaker 02:
you know, completely unrelated to this agreement.

[00:11:28] Speaker 02:
His own declaration says it may have been after the agreement was signed.

[00:11:33] Speaker 02:
And I would also note that California courts have held that obtaining information to be used in negotiations, if that information is actually used, is also considered a brokerage activity.

[00:11:48] Speaker 02:
And that's the case law.

[00:11:50] Speaker 02:
I think it's the Pollack case.

[00:11:52] Speaker 02:
in Hasikian case, which is cited in our reply brief.

[00:11:55] Speaker 03:
Did you want to leave any time for your rebuttal?

[00:11:58] Speaker 02:
Yes, I do, Your Honor.

[00:11:59] Speaker 02:
I see that I have three minutes and I will reserve the rest of my time for rebuttal.

[00:12:04] Speaker 02:
Thank you.

[00:12:19] Speaker 00:
morning your honor is that james carmen on behalf of a fc reality uh... thank you for having me uh... first um... it's a privilege to have to defend judge england's decision relative to this case because in his analysis you can see that what he looked at first was was there a contract in the parties admit that there's a contract

[00:12:40] Speaker 00:
And it's very clear even that the parties admit that there was a breach of the contract by the defendants when they, of course, took all of my client's information and then tried to and successfully negotiated their own separate loan deal with Farm Credit.

[00:12:57] Speaker 00:
And looking at that information is what drew Judge England to actually draw his conclusion that this is a simple breach of contract case.

[00:13:05] Speaker 00:
Addressing the question of brokerage services in California.

[00:13:10] Speaker 00:
There is no information and let's be clear, council had plenty of time to do depositions of parties, depositions of non-parties, figure out information that would have indicated that my client was doing something in the state of California in violation of the statute.

[00:13:24] Speaker 00:
There's nothing.

[00:13:25] Speaker 00:
There's nothing in the record that shows that.

[00:13:27] Speaker 00:
He showed up in California, admitted, showing up in California for dinner, not with people that he'd never met before, Judge, not with somebody who he just showed up and said, oh, are you guys interested in doing business with me?

[00:13:40] Speaker 00:
He had done the same types of deals five times.

[00:13:44] Speaker 00:
with the joint venture partner, Roward Ranshot.

[00:13:48] Speaker 00:
Five separate times they had done the same thing.

[00:13:49] Speaker 00:
And why did they do the deal with this guy?

[00:13:51] Speaker 00:
Why did they do the deal with Arthur Fefferman?

[00:13:53] Speaker 00:
Because he is well known in the hotel conversion business of doing precisely this type of finding and helping people walk through how you convert a building like the California Food Building into a hotel.

[00:14:06] Speaker 03:
So what do you make of counsel's argument that preparatory work can constitute brokerage services?

[00:14:14] Speaker 03:
So even his going to California to tour the building and have dinner with, and I don't know, was that at the stage where he had already been hired or was that before?

[00:14:26] Speaker 00:
I think on the timing side of it, we're uncertain.

[00:14:28] Speaker 00:
I don't think the witnesses really knew whether it was before or after.

[00:14:30] Speaker 00:
I'll say this.

[00:14:31] Speaker 00:
Certainly, he had been solicited by them, right?

[00:14:34] Speaker 00:
So remember, the one thing about this that I was thinking of as I was coming here is,

[00:14:41] Speaker 00:
Council's trying to put what I would call a square peg into a round hole.

[00:14:45] Speaker 00:
And what I mean by that is this, the statutory provision is designed to protect the innocent person who's selling and buying real estate in a, I'll call it a retail context.

[00:14:56] Speaker 00:
If you look at this transaction, this transaction is a $22 million loan, which was, as part of the agreement, a whole series of other activities were taking place.

[00:15:06] Speaker 00:
Not with people who had never been involved in the business before.

[00:15:10] Speaker 00:
In fact, Sundeep owned between 10 and 12 LLCs in California.

[00:15:15] Speaker 00:
Six of them or so were actually real estate LLCs.

[00:15:19] Speaker 00:
And so they knew real estate.

[00:15:21] Speaker 00:
What they didn't know, Judge, they didn't know how to convert

[00:15:26] Speaker 00:
a hotel or building into a hotel like Arthur Fefferman did because he'd been doing it for 40 years, Judge.

[00:15:35] Speaker 00:
That's why they solicited Arthur, not why he came to see them.

[00:15:40] Speaker 00:
They wanted him to do this process.

[00:15:42] Speaker 00:
Now, in terms of preparing a brokerage thing, I mean, the deposition of my client and his travels to California is pretty simple.

[00:15:52] Speaker 00:
I think they asked maybe 10 questions.

[00:15:54] Speaker 00:
One, what did you guys do?

[00:15:56] Speaker 00:
We had dinner not only with Sundeep and Ranchop, but we also had it with some other people.

[00:16:00] Speaker 00:
what else did you do?

[00:16:01] Speaker 00:
We walked through the building.

[00:16:03] Speaker 00:
There's not a single question, not a single piece of information that would indicate that there was any type of broker related services there.

[00:16:10] Speaker 00:
He's visiting what at this point is a friend of his, Ranshot, who he'd been doing business with for 10 years in exactly this space converting buildings into hotels.

[00:16:20] Speaker 03:
Did plaintiffs make any kind of concession that he had not conducted any brokerage type services in one of their filings?

[00:16:26] Speaker 00:
When I asked Sandeep those questions, his answers were, I remember there being dinner, and I remember we walked through the building.

[00:16:34] Speaker 00:
That can't be brokerage services.

[00:16:37] Speaker 00:
It can't be.

[00:16:38] Speaker 00:
I mean, if someone's visiting California, yes, they had made an agreement at some point either before or after, but they were certainly contemplating this transaction.

[00:16:47] Speaker 00:
But contemplating this transaction is much different than soliciting, advertising, promoting, doing the things that the statute was intended to foreclose people from doing.

[00:16:57] Speaker 00:
And for that reason, there's no evidence in this record that would indicate that there were any brokerage services taking place in the state of California.

[00:17:05] Speaker 03:
So how would you respond to Ms.

[00:17:08] Speaker 03:
Roussos' argument pointing to the Supreme Court decision in Birkbeck about legal activities being out of state and it being a highly factual inquiry?

[00:17:19] Speaker 00:
So I think the Consul Court and got their finger on the pulse of it.

[00:17:25] Speaker 00:
Actually, Judge England, I think, may have gotten his finger on the pulse of this as well, which is that decision is a long time ago.

[00:17:31] Speaker 00:
And there's been a lot that's happened between that decision and today.

[00:17:36] Speaker 00:
And there's been a lot of opportunity for the California legislature to come out and say, hey, hang on a second.

[00:17:41] Speaker 00:
We think Consul's wrong.

[00:17:44] Speaker 00:
They've had 40 years to do it, Judge.

[00:17:47] Speaker 00:
We think counsel's wrong.

[00:17:48] Speaker 00:
You guys are in the wrong spot.

[00:17:50] Speaker 00:
We think we should be changing this regulatory scheme so that we actually capture other activity that's more specified.

[00:17:57] Speaker 00:
That is, with all due respect to this court, not the province of this court.

[00:18:01] Speaker 00:
It's the province of the legislature.

[00:18:02] Speaker 00:
That's why we have the legislature, to make these rules and change these rules.

[00:18:05] Speaker 00:
And so if, for some reason, now we're gonna start using that, a California email transmission from New York is considered within the state of California,

[00:18:18] Speaker 00:
We're in a place way beyond where the statute's been written, and we're reading this statute as to whether it should foreclose my client from recovering a fee for all the work that he did that's admitted to by the defendants.

[00:18:30] Speaker 00:
because they want to use this statute to protect themselves from having to pay the financial charge that they agree to in the agreement.

[00:18:37] Speaker 00:
That's what they're using it for, Judge.

[00:18:39] Speaker 01:
Counsel, would you disagree with your Friend Across the Isles assessment of the attorney case Burbrower?

[00:18:45] Speaker 01:
So for the example of an attorney is sending an email to a client in California related to legal services, do you think that Burbrower doesn't say that that's covered under that licensing scheme?

[00:19:00] Speaker 00:
So my concern there, which I'm a little outside of my element because I haven't looked at it is, is there a difference lawyer to broker?

[00:19:09] Speaker 00:
So is there some variation lawyer to broker?

[00:19:11] Speaker 01:
Well, it seems to me that the key there is the statutory language, right?

[00:19:15] Speaker 01:
And so there it says in California, in our statute that we're looking at, it says within this state or within this, yeah, within this state, which I seem to agree that that seems pretty similar language.

[00:19:27] Speaker 01:
So I guess I'm asking you, when you're reading a Burr-Brower and its discussion of the facts there and the statute there, do you think that what I just described, a lawyer sending an email to a client in California discussing legal services, do you think Burr-Brower says that's covered by that licensing scheme?

[00:19:46] Speaker 00:
You know, again, I want to hedge, Judge, because I really don't know whether a lawyer's conduct in sending an email, for example, from New York to California is the practice of law in the state of California.

[00:19:58] Speaker 00:
My instinct, Judge, tells me no, I have not done the research on that from the California standpoint.

[00:20:03] Speaker 00:
I think the reason why they use the within language in California

[00:20:08] Speaker 00:
in the California statute is because they were trying to stop people from taking advantage of innocent people buying and selling real estate.

[00:20:18] Speaker 00:
You sell three pieces of real estate in your life.

[00:20:20] Speaker 00:
You buy one when you buy your first house, you upgrade once, and then you sell down to your house when you go to retire.

[00:20:25] Speaker 00:
There's three times and it's a very easy place for people to take advantage of the California general population.

[00:20:33] Speaker 00:
That's not what we have here.

[00:20:36] Speaker 00:
We don't have the general population here.

[00:20:37] Speaker 00:
We have sophisticated financial individuals making a business deal to help convert a California building into a hotel.

[00:20:46] Speaker 00:
And so in that context, Judge, within the state of California was intended to mean, don't be in the state of California if you don't have a license.

[00:20:54] Speaker 00:
That's how I think of that statute.

[00:20:57] Speaker 00:
With the Burr-Bauer side of it, Judge, I'm hedging on that only because I can see why there is a difference on the law license side of it than I do on the brokerage side of it.

[00:21:06] Speaker 00:
They're protecting different things, in my view.

[00:21:10] Speaker 00:
And that's why the California real estate brokerage statute is trying to protect the residents of California as compared to this question of the practice of law, which I think is a more nuanced problem.

[00:21:24] Speaker 01:
I have a different question, and that has to do with sort of conflict of authority.

[00:21:28] Speaker 01:
Obviously, we have the console case, which seems to pretty clearly reference, well, it does reference the broker context.

[00:21:37] Speaker 01:
And if we had a California Appellate Court decision that undermined or questioned counsel, then that would be something we would really have to look closely at.

[00:21:46] Speaker 01:
My question is, when we have a Ninth Circuit decision that seems to apply, what role does a California agency statement play there?

[00:21:58] Speaker 00:
You know, I think that issue's been briefed in our respective briefs, which is it's a persuasive authority piece of information, right?

[00:22:06] Speaker 00:
It's something that someone's trying to guide the court and say, look, under these facts, this is what we should do.

[00:22:11] Speaker 00:
And I think what's very interesting about that advisory opinion in the context of this case is it, again, drives the question that it's fact-driven.

[00:22:22] Speaker 00:
And what allowed Judge England to make the decision that granted my client summary judgment here is that there's really no dispute about the facts.

[00:22:32] Speaker 00:
It's undisputed that my client did a very good job like he did on the five prior occasions doing the work that he was hired to do.

[00:22:40] Speaker 00:
The defendants don't even challenge that.

[00:22:43] Speaker 00:
They don't challenge that he did exactly what they told him to do by getting the loan agreement together so that they could sign off on the agreement.

[00:22:51] Speaker 00:
And they don't disagree and they don't dispute that after having that information, they surrepetitiously took it and went to go do their own transaction on their own, again supporting the fact that

[00:23:03] Speaker 00:
These guys weren't unsuspecting people in the state of California that had no idea what they were doing.

[00:23:10] Speaker 00:
They were sophisticated real estate individuals who knew what they were doing and were going to use my client's guidance and information, take advantage of it, and go do what they thought was best for them.

[00:23:21] Speaker 00:
And that's exactly what happened here.

[00:23:23] Speaker 00:
With the problem, my client didn't get paid.

[00:23:28] Speaker 01:
I want to come back to my question.

[00:23:32] Speaker 01:
Even if we found the DRE's advisory opinion persuasive, could that displace a prior Ninth Circuit decision?

[00:23:47] Speaker 00:
Obviously, Judge, my answer to that question is no.

[00:23:49] Speaker 00:
I mean, you have a Ninth Circuit decision, which I see on all fours.

[00:23:52] Speaker 00:
And the only way that you could sidestep that decision from being binding on this court, in my opinion, would be to say that Judge England missed a fact

[00:24:02] Speaker 00:
that warranted that this case should be tried.

[00:24:05] Speaker 00:
And counsel, in my view, has not shown the court a fact that would allow the court to say, oh, this is something that should be tried in front of a jury.

[00:24:14] Speaker 00:
There's not a fact to that point.

[00:24:15] Speaker 00:
They had plenty of opportunity to ask questions during the discovery phase of the litigation, but they didn't do that.

[00:24:20] Speaker 00:
And so, in my view, counsel is absolutely binding on this case.

[00:24:25] Speaker 00:
And what makes it even

[00:24:27] Speaker 00:
I'll call it easier to apply, is the lack of dispute between the parties during the course of this litigation on the facts.

[00:24:35] Speaker 00:
Facts are exactly what they are.

[00:24:37] Speaker 00:
There's really no dispute.

[00:24:38] Speaker 00:
They agreed that there was a contract.

[00:24:39] Speaker 00:
They agreed that there was performance under the contract.

[00:24:41] Speaker 00:
They agreed that they were supposed to pay my client under the contract and that they didn't.

[00:24:45] Speaker 00:
And so the question is, did they somehow, did my client somehow do something in California that breached the agreement?

[00:24:53] Speaker 00:
Judge England said, look, I looked at this stuff.

[00:24:55] Speaker 00:
There's nothing he did.

[00:24:56] Speaker 00:
And I think that supports the reason why summary judgment was awarded to my client.

[00:25:08] Speaker 03:
Well, I don't have any other questions.

[00:25:10] Speaker 03:
I don't know if Judge Forrest, if you have anything else.

[00:25:13] Speaker 01:
I do not.

[00:25:13] Speaker 00:
And with no further questions, I'll yield the rest of my time.

[00:25:15] Speaker 00:
Thank you, Judge.

[00:25:16] Speaker ?:
Thank you.

[00:25:23] Speaker 02:
Thank you, Your Honors.

[00:25:24] Speaker 02:
I want to address, I want to go back to Consul briefly.

[00:25:28] Speaker 02:
Consul didn't actually address what it means to perform brokerage services in California.

[00:25:34] Speaker 02:
It just simply said that in that case, there was nothing in the complaint to indicate that Wilson performed any regulated acts in California.

[00:25:44] Speaker 02:
So it didn't actually address what the meaning of that was.

[00:25:48] Speaker 02:
It just said, well, you know, there's in-state land here, and that's really the only fact we have.

[00:25:55] Speaker 01:
Well, Council, I mean, I think I understand that that case was decided at a different procedural posture.

[00:26:00] Speaker 01:
And of course, the facts aren't exactly the same here.

[00:26:03] Speaker 01:
They are analogous in the sense that we have an out-of-state broker and an in-state property.

[00:26:07] Speaker 01:
But the thing that I'm having a hard time figuring out how you get around is that case says was looking at the statute that we're looking at and says it's plain on its face what it means.

[00:26:17] Speaker 01:
And then there's a statement in there about it means that within the geographical boundaries of California.

[00:26:22] Speaker 01:
And those are legal statements that an interpretive statements that I don't understand how you can say we just distinguish them on the facts of the case that those aren't statements that are made bound in fact.

[00:26:34] Speaker 02:
You know, I do need to go back and read it one more time, but Your Honor, but I don't think that the court stated that it had to be within the geographic boundaries.

[00:26:43] Speaker 02:
And I'm not sure that the court stated that the statute was clear.

[00:26:47] Speaker 02:
It looked for guidance on how to interpret the statute, but it really doesn't have a lot of analysis on this particular issue of what it means.

[00:26:57] Speaker 02:
The other thing is that it does predate

[00:27:00] Speaker 02:
The way that business is done in the world today, it is a 1986 case.

[00:27:05] Speaker 02:
The Burr-Brower case is from 1998.

[00:27:07] Speaker 02:
A lot changed between those two cases and certainly until the time that the DRE opinion came out in 2012.

[00:27:16] Speaker 02:
I don't believe that the DRE opinion is totally inconsistent.

[00:27:22] Speaker 02:
with counsel, actually.

[00:27:24] Speaker 03:
Ms.

[00:27:24] Speaker 03:
Roussel, can I ask, I'm sorry to interrupt.

[00:27:27] Speaker 03:
No.

[00:27:28] Speaker 03:
What about the fact that even if the DRE opinion came out in 2012, the legislature still hasn't changed the statute, even in those intervening 10 years?

[00:27:37] Speaker 03:
So you have these various points in time where a legal interpretation of the statute is being made.

[00:27:45] Speaker 03:
The statute's language remains unchanged all this time, and the legislature has not acted to change it consistent with the way that DRE thinks it ought to reflect more modern sensibilities.

[00:28:00] Speaker 03:
And I did go back and look at Consul and it does talk about within the state and we hesitate to ignore this plain language.

[00:28:10] Speaker 03:
So to echo Judge Forrest's question, I mean, that's a legal determination, a statutory interpretation.

[00:28:16] Speaker 03:
It seems hard to get around that when that is the basis for the decision.

[00:28:23] Speaker 02:
Thank you for reminding me of that, Your Honor.

[00:28:25] Speaker 02:
I still don't believe that Council really analyzed this issue in detail.

[00:28:29] Speaker 02:
It was focused very much on the choice of law issues, and as I said, it's not been cited for this particular issue of what it means to practice, to have brokerage activities within the state.

[00:28:42] Speaker 02:
But the DRE analysis is consistent with the statute.

[00:28:48] Speaker 02:
That's why the legislature wouldn't need to revise the statute.

[00:28:52] Speaker 02:
It hasn't done that in response to the Burbrow case either on the practicing law in California.

[00:29:00] Speaker 02:
This is all consistent with the language of the statute.

[00:29:04] Speaker 02:
And as far as

[00:29:06] Speaker 02:
Changing the statute in response to console.

[00:29:08] Speaker 02:
I mean, the legislature is not bound by federal decisions.

[00:29:13] Speaker 02:
So in terms of state law interpretation, and so it really did.

[00:29:17] Speaker 02:
The legislature has no reason it hasn't been cited as I as I've mentioned in any state case on this issue.

[00:29:25] Speaker 02:
One last thing I just wanted to mention to you, there's no exception in the statute for commercial real estate or for sophisticated entities, which I think my friend on the other side is arguing.

[00:29:37] Speaker 02:
And I also wanted to mention that Mr. Fefferman in his declaration stated that he offered his services to appellants.

[00:29:48] Speaker 02:
So he did, you know, viewing the facts in the light most favorable, he did actually solicit services and he also

[00:29:55] Speaker 02:
was states that he was at the property possibly after the agreement was signed.

[00:30:03] Speaker 02:
And so he did tour the property.

[00:30:05] Speaker 02:
There is no concession that that was not brokerage activities by my clients.

[00:30:14] Speaker 02:
They didn't testify to that.

[00:30:17] Speaker 02:
They also, that's a legal issue in any event as far as a legal conclusion as to whether he was engaging in brokerage activities on that trip.

[00:30:28] Speaker 02:
But with that, Your Honor, I think I've gone over and I will submit.

[00:30:31] Speaker 03:
Great.

[00:30:31] Speaker 03:
Thank you.

[00:30:32] Speaker 03:
Counsel, thank you both for your helpful arguments.

[00:30:34] Speaker 03:
The matter will stand submitted.