[00:00:08] Speaker 02:
present we have Mr. Fox who represents Shubin and not present is Mr. Nissen who represents the UVA or UBC.

[00:00:25] Speaker 02:
I guess it's the Universal Club.

[00:00:28] Speaker 02:
I'm going to put certain things on the record.

[00:00:30] Speaker 02:
The time is

[00:00:39] Speaker 02:
And Mr. Nissen, we were advised at the starting calendar that he was not present.

[00:00:46] Speaker 02:
The clerk's office has had some communications with him by phone.

[00:00:52] Speaker 02:
And he advised, there are several things.

[00:01:22] Speaker 02:
he was thought that the matter had been submitted and he thought that he had filed a motion to submit.

[00:01:36] Speaker 02:
My review is there is no motion to submit, correct, in the record.

[00:01:46] Speaker 02:
also that Mr. Nissen filed the notice of appearance so he was aware of it and and also whether he thought it was submitted or not that's obviously a court decision even you can all as attorneys wish all that you want but there's

[00:02:15] Speaker 02:
and so what we're gonna do is apparently right now he's at a doctor follow-up appointment on his

[00:02:44] Speaker 02:
Let you argue and obviously we'll just go from there obviously

[00:03:29] Speaker 01:
My client entered into a contract.

[00:04:40] Speaker 01:
the lower court, this is a choice of law issue.

[00:04:44] Speaker 01:
And the judge decided that the situs of the injury and the when weather emergency, California Emergency Rule 9 applied was a procedural issue, not a substantive issue.

[00:04:54] Speaker 01:
And we have cited you to the law.

[00:05:22] Speaker 02:
Well, so regarding the timeliness of your negligent claim, what is your best authority for arguing that this tort claim did not, quote unquote, arise in Mexico, triggering California's borrowing statute of Section 361?

[00:05:36] Speaker 01:
Our claim is subject to a contract.

[00:05:39] Speaker 01:
The contract has a provision that all the law that will be applied to this, any claims under the contract, are California law.

[00:06:12] Speaker 01:
I tried many cases all over this country and judges always follow the choice of law unless it's procedural and it's the host forum that decides that and then you know we've cited the law and it hasn't been rebutted by the other side that the statute of limitations is a substantive issue I mean this is a law school proposition so the idea that you would not apply emergency rule 9

[00:06:51] Speaker 01:
Releve...

[00:07:28] Speaker 01:
period.

[00:07:30] Speaker 01:
And when we say you are to follow California law substantively, sure, contracts govern.

[00:07:38] Speaker 00:
The contractors as California state law, you don't draw any distinction between procedural or substantive.

[00:07:44] Speaker 01:
But the reality is that the statute of limitations is a substantive issue.

[00:07:52] Speaker 01:
If the court said that it needed to

[00:08:14] Speaker 01:
the circumstances involved here because this is a situation where an elderly woman in Idaho enters into a contract with one of our California-based companies.

[00:08:26] Speaker 01:
She goes to Mexico under a timeshare agreement.

[00:08:30] Speaker 01:
She opens a Murphy bed and it collapses on her.

[00:08:33] Speaker 01:
Her family finds her passed out.

[00:08:35] Speaker 01:
She gets helicoptered, has multiple surgeries, and if anybody should be allowed to

[00:08:44] Speaker 01:
the benefit of Emergency Rule 9, it would be her.

[00:08:48] Speaker 01:
She's an elderly woman during COVID who is recovering from numerous operations.

[00:08:52] Speaker 01:
Took her a long time to go find an attorney.

[00:08:54] Speaker 01:
Thank God there was an Emergency Rule 9.

[00:09:14] Speaker 00:
talk about the resort, and you talk about UVC, where does the Constructora Los Arcos del Cabo come in?

[00:10:07] Speaker 01:
sold by

[00:10:43] Speaker 01:
interest in real property and are the nature of interest that is of a lease, a lease, and you're talking they're the landlord.

[00:10:51] Speaker 01:
And as a matter of law, and we've cited some case law in this in our brief, is of course they're standing in the position of the landlord.

[00:10:59] Speaker 02:
Well, okay, it's just a little confusing here.

[00:11:02] Speaker 02:
The Schupens bought their membership in UBC from, quote, constructora los arcos del cabo.

[00:12:06] Speaker 02:
you served only UVC, not the resort, you must allege an agency relationship between the two to proceed with any of your claims, am I right?

[00:12:16] Speaker 02:
Correct.

[00:12:17] Speaker 02:
Okay.

[00:12:19] Speaker 02:
And you allege that the

[00:12:36] Speaker 02:
That's a statement.

[00:13:28] Speaker 01:
that situation, and we allege that.

[00:13:31] Speaker 01:
The judge's decision turned on the fact that he decided that Emergency Rule 9 did not apply.

[00:14:09] Speaker 01:
owns, it refers to UVC, is that right?

[00:14:13] Speaker 01:
Yes.

[00:14:14] Speaker 01:
Now you just said it owns through an affiliate.

[00:14:19] Speaker 01:
Yes.

[00:14:20] Speaker 01:
What's the affiliation?

[00:14:23] Speaker 01:
Because you sign a contract at Timeshare Agreement Universal Vacation Club and it has an affiliate that owns a property and all the terms.

[00:14:31] Speaker 01:
Well, what do you mean by affiliate?

[00:14:33] Speaker 01:
What is the affiliation?

[00:14:49] Speaker 01:
is what do you mean by affiliated?

[00:14:52] Speaker 01:
I mean that the two companies worked together or went together.

[00:15:27] Speaker 01:
all of it it affiliates with another company that owns it but our contract governs every moment in every aspect of my stay there and i also have had promises by this company that induced me to go there that it's going to be safe it's going to be healthy is is there i mean so so what is the you're referring to this company and your complaint talks about the via group

[00:15:57] Speaker 00:
um, they're not in your complaint.

[00:16:01] Speaker 00:
You don't allege a, you allege a relationship between UVC and the VIA Group.

[00:16:04] Speaker 00:
You don't allege where in any of this Constructora is.

[00:16:09] Speaker 01:
Well, because, you know, we hadn't get to discovery, we hadn't gotten to that point, we tried to serve them, and they weren't even a viable entity is from what we could tell.

[00:16:20] Speaker 00:
But they're, they're the ones who are actually in the contract in terms of,

[00:16:39] Speaker 01:
law they're like a landlord and they made the promises not some company in Mexico in Spanish or otherwise they made the promise they made the promise in their contract that this can that any of the timeshare spaces they sent them to would be safe and healthy and you know they the timeshare companies enter into relationships with a number of places under a number of arrangements where they make available to their clientele under their contracts

[00:17:15] Speaker 02:
Focusing on the breach of warranty of habitability claim, let's assume there is a landlord-tenant relationship and that there was a materially defective condition.

[00:17:30] Speaker 02:
Does the amended complaint plead the other elements of notice or reasonable time to fix?

[00:18:21] Speaker 02:
you might normally see.

[00:19:29] Speaker 02:
We're just under that.

[00:20:16] Speaker 01:
emergency rule 9 and I thought how could that be you know by the way she paid her fees through Universal Vacation Club and Universal Vacation Club and its membership agreement says our fees are used to make sure that your space is healthy and safe