of there's something really interesting to me about the way the problem it seems obvious that the least is ninety ninety percent or maybe ninety nine percent of the the yes facts that matter and neither side produced believed it was acceptable to both sides the landlord because the landlord would ordinarily have a copy of the lease and authentic this they would get it o request for production so i can figure out as each side had some practical reason for not producing it but i don't know how to decide the case without reading at least if i may address that you are that entered into no less than three stipulations a factor in the course of the case that they had all the necessary control in the story to make any change in the parking lot that was necessary and those that was on the record  necessary control to make the change and i think there's several places the first place is that in the stipulation of fact that stipulated that it was readily achievable for it doesn't mean it can't achieve achievable whether it's easily achievable and able to be carried out without much difficulty or expense is not just of financing it's also control its ability to do something we wanted to that all the time where there precluded by city ordinance or something else and they just can't do it and therefore that if i could draw your attention to the excerpt of record number four on page two this is rather a pretrial statement itself i don't think that will address your question that's page seven a record tab number four point that i was starting off with the idea that the parties agreed that routh was the tenant and that this agreement was how much overhead over the park it was our understanding and of course the case they think they were the owner and operator of the facility they admitted that  your burden i agree and that's why they moved under fifty two feet when the judge then denied their motion saying no they do have these things bring on your case and they said there is no case that's not uncommon for a judge  done here's the problem i have always this i agree that there is tighter evidence that could be done there's no doubt about it had we known that this was going to be the big issue for the case that we're going to somehow miss a link establishing that they that this is part parking lot serves their grocery store or stipulated they had the ability to make any changes that was readily to bill to make whatever changes need to be done and not just for someone else like dana priest trust him in reality all for roush to install the parking so not only do they put their shopping cart returns on their customers is straight to their front door so they can say that they're parking i i can only speak for myself we don't meet before these things but i just said i think you're vastly over reading the supposed admissions i think all the acting in those admissions it could easily be done rather than we have the power to do it at and you are frankly not going to tell me about any alternative to that reading and what i want to know is when you were saying no that's clearly erroneous you can tell it's clearly erroneous because routes at a shopping cart return rack in the parking lot plus these various things that i've told you before him to show that it's clearly erroneous is as finding the sack aside from the stipulations of fact in the end the statement says their parking i think the other evidence that would go to whether or not they even had an implied interest in the parking is the testimony of the customer they use it their use of police shopping cart returns on the parking lot the fact they state the cause or they caused the change to be made during the course of the case or cause others to do it the striking at least the front that that that that's the question is that indispensable there must be a lease agreement or there must be evidence of a lease agreement we i agree that if they come forward and put on a case they said look here's the actual disagreement regardless of the evidence you put forth we can rebut it here's the real situation and laid it out responsible to ensure that all of their advantages accommodations privileges of operates would be that is yes that is the word in the statute itself that is that the one you're getting at another is i want to know what it is in the act where for instance if rouse has such two of them and do not apply to third parties that's that's nice and good luck depends i'm not sure on what what circumstances it appends i think it certainly certainly is true without doubt for what happens inside  economic gain business use it's one of the things they offer for their customers parking this is then it and simultaneously they have enough control and ability to make whatever changes are necessary the parking lot how do we know any of this even on that rack we don't know whether rouse just put it necessary in this parking lot it was evidence certainly that tipped the scales preponderance in favor of that of the plaintiff they could have come back and we bonded it they chose not to put on any case at all and that's why when the judge says the district judge said there is no evidence whatsoever just i don't know and you can't count much on that because that's there that it's not readily achievable means that something you would cost ten million dollars to do it or the physical structure  that's to be easily accomplished able to be carried out without difficulty use or all the facets able to be carried out and things it doesn't say who who's doing the carrying out quality especially applies landlords tenants operators that as we stated before in the general rule applies to all of them not or an owner of the parking lot and so you're saying that they operate the parking lot i'm saying that it's one of the parts of it in front of i'm saying that they operate the grocery store and one of the privileges and advantages of this shopping grocery store their efforts with customers are th convenient parking right out front this whole relationship and when that's one of the accommodation there may be a reckoning and parking on the street that's right and if they would never stipulate that israel is you will for them to go and take someone else's property or make changes and that was the issue in this case was do you have the ability to first stipulate that  customers the only one that testified was the customer says this is for the customers the shopping cart return all of these things are evidence in favor of the plaintiffs and i agree that's not the strongest and i wish that we put a lease agreement had we known that this was going to be the contentious point but we didn't put forth two or three other small stores that don't have too often carts don't use them and on the side thank you courthouse in sacramento has a parking lot across the street that says courthouse parking as a matter of fact this courthouse your honor has no public parking i believe there's a public lot next door that somebody else owns and it says courthouse parking on it the key here is it's the burden of the plaintiff to establish that the defendant is legally responsible to comply with the americans with disabilities act i would suggest to the court that the point that is being somewhat disingenuous at this point in time by referencing exhibit for exhibit three which can be pointed out is to speak relation of fact that was prepared in the discovery and had to express reservation that my client did not agree that it was responsible for maintaining the parking lot and exhibits five which is the actual stipulation which the parties entered into prior to trial with respect to that does not reference the fact that it was ralph's that it was readily achievable for ralph's it's just stipulate the actual stipulation the stipulation was not that it was readily achievable for there is no evidence before this court that would justify this court overturning the finding of fact that  legal interest or control over the parking area there may be a lease between ralph's and the owner of the parking area ralph may be the owner of the parking area a third party may be the owner of the parking area and routes may own that store independently and may or may not have some agreement with the owner of the parking area none of that is before the court the plaintiffs in this case cites emerick for the proposition that having some business interest is sufficient in fact emerick stands for the opposite proposition emerick stands for the proposition and points to the commission's comment and the regulations which say that a landlord is responsible for the tenants face irrespective of the fact that the tenant may control the space in the emirate case there was a specific there's a lease which gave the tenant the right and in fact the obligation to maintain the common area but is the district judge said an independent living typically it is the landlord who is responsible for maintenance of the common area and attendant would not in less the tenant have some contractual right to motion the judge started to make his ruling after we came back from a break plaintiff's counsel wanted to argue further and was in a row and the judge interrupted and said i'm going to deny the motion and the question becomes and the difference between a ruling under fifty two c and a ruling under fifty two a a judgment is whether as a matter of law the plaintiff met its burden which is the burden of coming forward a burden of production or whether the plaintiff sustained its burden of persuasion which is a preponderance of the evidence fandor your honor in my heart of hearts having sat through that trial i believe the plaintiff did not meet its burden of production not standing that that's not the standard we're here before the court of the court has to accept the trial court's findings of fact with respect to the determinations that the judge made and granted the first motion we would be looking at this and your honors has postulated some of the fact issues judge shoved in the trial court postulated fact issues and those are all that's the problem the plaintiff didn't sustain its burden here and maybe it could have maybe it could have conducted the discovery maybe there's finding the judge shot was clearly erroneous in this finding the fact that there was sufficient control by rouse over the parking area that it was the operator of a public accommodation your honor the parking lot is a public  accommodation the stores a public accommodation there is no question that rouses responsible for compliance in the store there's a question whether ralph's is obligated for compliance in a separate public accommodation and the that it does have the word control is not it's whether or not the defendant operates owns leases from war leases to those are the magic words in the statute and there's no evidence that ralph has any of those and as for the parking lot the evidence of ralph's and i may use this with a small i interest in the parking lot is that some of its customers use the parking lot those people and other people who frequent i think the testimony from the plaintiff was there at least six businesses in the shopping center that are frequented by people who use the parking area that at some point in time ralph's had a grocery cart return area in the parking lot again no evidence as to what basis that was for being there and i suggest your honor that court has to defer to judge shelves finding a fact with respect to the amount of interest that ralph had with respect to the parking lot we have here and what the court what the record is and in fact if the court looks back at what was argued to judge none of this the issues which are raised on appeal were in fact presented to judge show with respect to the issue of the answer the stipulations were not argued to judge they were part of the record they were in argued when they first argued the fifty six emotion they were never raised again in a motion for reconsideration a motion for a new trial or any post trial proceeding not that they are obligated to do so but obviously it would be judicially appropriate to let the if if you felt there was something in the record that the judge completely missed you go back to the judge to offer it up your honor i think that there is sufficient evidence to support the finding the judge made there's an adequate evidence to have a compelling determination that the decision was wrong or clearly erroneous and based upon that determination i think this court on both questions question one which was presented by the plaintiff on appeal does there have to be some sufficient interest that a defendant is responsible to be liable for an eighty violation on a particular piece of property the answer i think is yes notwithstanding the fact that they argue it is not i don't think the m r case i don't think that independent living either compel a different result and in fact it's illogical to suggest that this court in the federal government would be responsible for compliance in the parking lot next door that he doesn't own or have any other legal interest in and i suggest that there's no evidence that there's a legal interest so the question of law the no vote judgement should make the right decision question of fact it's not clearly erroneous that my client had a sufficient interest that it was legally responsible manner of for me is finding number four and there's no evidence that this planet now or in any time in think that there is no authority for that and logically there has to be some relationship because since they are so injunctive relief for court order as they request this court to that my client be required to comply with the way with respect to the parking area there would have to be some legal right for my client to do that some legal interest that would allow my client to do that otherwise it would be impossible to probably pretty usually do your honor there may be some commercial ability to do it and the answer is and the problem is it's not in the record there is not a lease between my client and and any party that owns that property  a different relationship and that's not in the record but it's not in the record because the plaintiff didn't seek to put it in the record your honor my clients would ask the court affirmed the decision of judge and award my client attorneys fees and costs on appeal thank you