good morning your honor may it please the court david peters appearing for defendant and co enterprises on rush feet and company basically your honor i think the briefs especially the reply brief hit pleasure to undoubtedly so in this case i think the real problem is that it's really not a strike clearance case it's a rule laid fair notice case and what i mean by that is that the second amended complaint which is that e r eighty six paragraph twenty seven only talks about clear floor area and that's significant because there were references to strike clearance in the complained in the first amended complaint those were removed and in the second amended complaint all we are given notice of is clear floor area and so we know that through all over versus ralph hundred sixty seven that an amended complaint fully supersedes the original almost as if the original hadn't existed so then i turned to the appealed and missed the motion requirement you know there was none from this is the concern your honor i don't think i don't think there was a rule eight fair notice of this claim that the wall needed to be longer than five my question is but you would if in fact there is no requirement of wall and when my money on that ground i certainly wouldn't mind your honor although would be delighted to see this stuff out but on but on the other hand even if there is what if we hold the ball  think this is one of the stronger arguments that there is simply no rule eight fair no this judge the district court's declaration specifically refers to plaintiff's declaration at pages eleven to thirteen which only have pictures of the wall she talks about limited clearance in her declaration very generally she says there's limited clearance and then she only attaches pictures of the wall so that  the court or and plants counsel felt that those diagrams required the wall to be a certain length but what do we know about that i think we know twenty eight c six point four zero six b and i have highlighted courtesy copies of the full says that illustration basically in essence illustrations in the nine hundred ninety nine sorry the nine ninety one and two thousand and ten standards do not establish in forcible requirements so if you actually look at the eight eggs section and it's important to keep in mind that in the motion for summary judgment mr hubbard counsel did not include the full a dead section we provided that in our not only in the record but in our response he provided drawings but he did not provide the eight eggs section which does not mention the length of a waltz so i don't want to i don't want to beat that issue to death but i think it's safe to say that per henry versus gill which was cited in our opening brief at page twenty nine a motion for summary judgment cannot be granted even if it was completely unopposed that the district court would would have sunk in judge carter so man if you will we seems to have been i think i think there were some some comments made by plaintiff's counsel that weren't relevant to the i think the district court had to make at least some independent evaluation of the evidence and so here's the thing what do we know the purpose of strike clearance if we call that is i think most commonly from an emergency exit standpoint that if you put a soft drink dispenser right next to the door and if there was an emergency someone in a wheelchair could be trapped between the door and the soft drink dispenser which is why for certain types of doors we have this requirement for clear floor space that got to be at least eighteen inches of clear floor space maybe even twenty four in some cases so that makes complete and so here's the thing number one even if there were a requirement for an eighteen inch wall  this wall was thirteen and a half inches the reason the plaintiff thought it was less than that is if you look at her pictures the door frame is very contrast in color so they aren't the greatest pictures it looks like there's only love in inches but we've provided taller pictures that show thirteen and a half inches even if you were to accept plaintiff's claim that the wall needed to be eighteen inches  four and a half inches short and i would respectfully contend under california law civil tode fifty five point five six a m d two saying that the condition would need to deny full and equal access and i think there are needed to be a finding that that lack of that extra four and a half inches you know are are thirteen and a half inches she talked about putting her hand on the wall and  the thirteen has lost i don't mean to interrupt but i wondered in light of your opening comment if you want to save your last two minutes to reply absolutely thank you your honor i would unless the court had any other questions cast now once again with your question the question i'm not the fairness that seems to me that he wins or he loses your opponent based upon whether they whether this compliance or noncompliance with i think the posture this case comes in not is a question a law that a question of fact you asked why judge carter was so angry with mr peters i would suggest the court read and i looked this up before coming up here pages twelve to twenty five the answering brief it was some pretty detailed conduct and to accuse of making a relevant comments without citing the record or anything like that know i'm not entirely certain that the court needs to reach the question of the eighteen inches in this case because opposing counsel didn't file an opposition to our summary judgment motion didn't file an opposition to our attorney to you know i try to be accurate i'm a little confused on that point myself i know the laws and all the law is the law and generally speaking if a court gets a lot wrong then it's a reversible error but i think the question as it's presented to this panel is whether or not the judge got the law wrong on the rules sixty emotion but that's that's my that's my take let's see here section four a four point two establishes that a deck standards opposing counsel correct the drawings are offered as illustrations so that people would know what those standards mean yeah that's true too i don't deny  thank you your honor excuse me while i certainly appreciate my opponent's comments it really does come down to fair notice all we had was fair notice of clear floor area there was no evidence whatsoever submitted not even a picture of the floor not even plaintiff rushes representation that the conditions deny full or equal access and not a finding by the notice on clear floor area and there was no evidence to support that unless there were any questions i'll submit no questions there