the district court heard one found that the note in question was clear in an ambiguous and that it was not susceptible to any other reasonable interpretation my clients assert that the crux of the ambiguity in the note is the means of training fees in the contract the noted self can be found in your two fourteen exhibit a declaration of sandra nelson and in particular the ambiguity is found in the second to last in which says in lieu of simple interest payment of four percent per year fixed for the life of the loan in payable monthly on the first of the month earl in general mcfall have the option to waive the monthly training fees by that ambiguous because the training fees were known by all of the parties at the inception when the money was loaned and the evidence for that is that miss nelson signed training fee contracts that were included in the declaration of jennifer mcfall that is that we are eighteen one thousand exhibit a that beginning in two thousand and five the value of the training fees were known under california law those two documents need to be taken together because the form substantially was the same transaction civil code sixteen forty two an analogy with regard to when the contract was signed miss nelson testified in deposition that the contract wasn't signed until two thousand and seven it was back dated to two thousand and five the mc falls assert that the contract was signed on may first two thousand and five the same day it was signed on may first two thousand and five and it was not never backdated that's corroborated by the testimony of ms nelson's accountant who says look as all the check come in the note existed and so without determining there's a factual dispute as to when the note was actually signed between the parties so it's a difficult question to answer and that's has to be determined by a by a jury or judge sitting why should why should i make a difference when it was actually signed because california law says that the circumstances surrounding the time that it was signed are important to determine the parties intentions and that's eight hundred sixty also the civil codes sixteen thirty five it sec give the court the ability to take a look at the statutes and interpret what the parties intended at the beginning of the inception of the agreement and when there is a conflict as to when the note was actually signed that is ripe for a jury or for a fact or a judge sitting as a fact finder not at summary judgment that i think in itself creates of a genuine issue that that is serves a trial that's not the only thing that we can look at with regard to construction of this note it seems i'm just sorry i'm just trying to understand your argument because it seems like most of the evidence either speaks to a different parties understanding of the contract or such as nelson's understanding or mr ch understanding or show it seems at best intent to modify the contract much later than the time of signings i'm just trying to figure out it's difficult to determine what the intention of the parties were it's not the exchange of the e mails that occurred in two thousand and seven are not evidence of a modification from our position there evidence that miss miss nelson was asserting that there was no no at all there was a notice that it existed in may on may first two thousand and five and that's what we would present a trial the issue of modification came later that was not in two thousand and seven isn't that correct well that was they cut the communication between mr chang and me either ms nelson or somebody at the half of his nails was and that's the significantly later in time that that's true two thousand and seven is when my clients assert that miss nelson was attempting to modify that the kno in two thousand and nine it was mr chang that was attempting to modify the note but this is not an issue of modification it's an issue of when it was created in our position is that it was created in  training field contracts that she signed say which range between seven seventy five and one seventy five but that was the retail price so it's not unusual for somebody to say i'll take pay retail price i don't see what the difference is whether it's wholesale or retail i don't see the significance of that i think that the your position is if that if the training fees went up during this period that would be a further of to the principle yes but mr nelson knew about the fees if they would have gone up she would assign an agreement she actually signed an agreement every time she placed a horse that the fees were fall had the option our position in the fall had the option to pay the interest five hundred dollars a month or alternatively waive two training fees which had a specified amount pursuant to the to the training contracts  out maybe higher than five hundred dollars it would be higher than five hundred dollars and it would go down to knock down the principle why where is that in the contract who goes there not on the principle it's not in the contract that's any bearing on the no outside to simply stay in the price of the horse training fees i'm not quite sure how that tells us about the party's intent because when  first two thousand and five no it was signed and our position is it was fine signed on that day miss nelson understood exactly what she was paying for training fees so they used the term training fees when everybody knew the value of it it's nelson understood the value of  e make false to understood the value it they could have defined training fees to say pursuant to the site of the training if you contracts you were signing my clients would have been a position to basically not pay this loan off at all pain five hundred dollars interest and given away seven hundred seventy five dollars times two of training fees every month it just doesn't make any sense whatsoever well there might be other reasons why i should wanted to do that maybe there was some other benefit that the they would have derived from having missed nelson's horses there that that's true of her father that's true but that the evidence the evidence showed shows that their intention was to make sure that they were pain of the know by giving them the bigger chunk the train visa waiver and applying it it's covered worse than the record that was their intention well the evidence is in the invoiced now she asked for that to be modified in two thousand and seven to say look why don't we call it interest that was a request that she made and that was in an e mail that she sent mr chang on  actually record ninety four exhibit d mr men this we've taken you pass your time thank you very much  i don't have a whole lot additional to say that i put in my brief but judge delaine e in her decision repeatedly referred to the plain language of the promissory note and that's what the court interpreted the plain language of the promissory note and as judge pointed out the plain language of the promissory note nowhere suggests that training fees can be used to reduce the principal falls controlled with the training fees that was in their discretion they could raise it at their discretion they could have doubled it they could have tripled it which would have meant instead of repaying one hundred fifty thousand they would pay substantially less than that based upon their unilateral determination of a training fee it's also important to point out in background that sandra nelson at various times for the most part had like seven horses that were being trained so she was paying for at least five training fees so it wasn't a losing proposition at all for them it falls they were making good money off of off of sandra nelson and the purpose of the promissory note was so that they could purchase the farm that they started this business so they borrowed money from the client agreed to pay one hundred fifty thousand in a lump sum at the end of the term and they defaulted on that  the once again the plain language is simple in lieu of that language means instead of in place of in lieu of simple interest five hundred a month that apparently they couldn't afford or they would have chosen that option they had the option of waiving to training fees which they consistently did in invoices up until two thousand nine when they said this isn't working out very well so why don't we modify the contract and we'll amortize the loan that was first raised in two thousand  some five almost five years after the inception of the not so was that the who or the were those that email from mr j i believe it was yes e mails from mr chang who is the accounting manager for dragon fire and it was also in discussions and so once again you know the language of the note is pretty clear that e overarching goal is to interpret the language of the note which as we pointed out was drafted by mr chang the father of jennifer mcfaul and we don't believe that there's any ambiguity in the promissory note it's the plain language as judge only said however if there were an ambiguity which we don't believe there was it's interpreted under california law against the drafter which was the mc false so that they lose on that one as well so can i ask you is there any  difference in the admissibility standards under under common law as set forth in pacific gas and electric company versus g w thomas drainage and california's  payroll evidence rule that is set forth in the california code is there any difference between how we apply the common law as set forth in pacific gas versus the payroll evidence rule because requires the judge to look and see whether or not give just a preliminary look to see whether or not the evidence is going to make a difference or look into how the interpretation of the contract what the parties how they should have been how what their intent was and how the court should interpret that i don't i don't if i understand the question correctly i don't think that there's a which we set forth in some detail that the conduct of the parties after the execution of the promissory note was consistent with the plain language of the note and i guess i think i understood mccall's counsel here to be arguing that this is a factual question because the district court engaged in improper factual finding but i think the district court supposed to provisionally receive without actually admitting all the credible evidence concerning the party's intentions to determine if there is ambiguity and i think we're supposed to apply pacific gas and  was just wondering if there's a difference between pacific gas and how the court did this and the payroll evidence roll i don't think there's a difference i think what your position is that the extremes the government did not support the meaning to which the language of the instrument is reasonably susceptible because the language of the instrument is clear on the face that's correct that's all i have thanks very much all right the case of the nelson versus the fall will be more submitted thank counsel for their argument