issues so unless there is any questions for me this one has a slight twist from the one early on so far as we were sanctioned a large amount of dollars for advancing frivolous arguments by judge kloster and that if the court doesn't have any questions for me regarding at all reserve the rest of my i have a question or comment i don't mind you reserving time but what i would like to avoid is a situation where you were fifteen minutes of time and your opponent gets up and argue and he hasn't heard any of argument from  later on i prepared a twenty a j letter on that subject yesterday and when it boils down to this opposing counsel has a heavy burden of establishing or excuse me not opposing counsel defendants have a heavy burden of establishing that a case is moot with respect to the declaration and question the defendant says that the witness says that we entered into a settlement agreement with the client or with  their codefendant they believe that includes remediation changes and they made remediation changes and we have a complaint simple fact is we send someone out there if the court follows picken versus holiday quality foods and remands it for a factual finding of moving us we are prepared to show photographs that architectural barrier still exist outside but what does that tell have any control over the com realty and it explains how california lease agreements cannot dictate compliance now in this case or any liability i think would be a better term so in this case congress created liability for owners operators landlords and tenants of their not the owners of facilities but they are the tenets of common space they do lease the common space yes your honor now under the lease agreement they explicitly state that they are not responsible for eighty eight comply i'm not sure if they explicitly state they say that we're not responsible for eighty eight compliance in the common areas but the simple fact is you can't use lease agreements to say what you route is in the definition of public public accommodation and facility if you look to the department of justice's interpretive manual on what constitutes a when if you look at i mean take a step back the general rule of the eighty eight is that owners operators landlords tenants shall provide disabled individuals with full and equal enjoyment of public accommodations if you go to the definition provided by in the interpretive manual through the interpretive regulations of what constitutes a public a god accommodation it says basically a parcel the property the boundaries of the property that's why an owner a can't be held liable for eighty eight violations that exist on property b it has to be within the bounds of the property so you have bed bath and beyond rent a place rent a space in the mall includes parking that's part of their lease yes access to the common areas that's part of the least everybody have access to so many indeed and then bed bath and beyond leasing this property leasing the entire area throws in the story i do quite would like to give an idea of what responsibility they have for this general general common parking i would say based on the based  statute and the department of justice is interpretive material which we've included but we haven't cited the one on what defines the property that the flywheel that yes a defendant who leases a property that has common areas including proper parking would be responsible for the architectural barriers within that site or lease we introduce the aspects of the lease that say that they lease the property and that the property includes parking and that the parking falls within the common area actually they did your honor to argue that they weren't liable for parking in the common area in front of their store so those those key provisions that we're discussing are in the record and you  say that they do lease parking spaces they do in front of the store and they also throw in the position that says that the landlord isn't responsible for that but again i'd like to check the record i realize this is not disc a suppose hold their state law contract can't bind the disabled plaintiff so that lease agreement let's say in the courts example the lease agreement says  to eliminate their liability to disable plaintiffs for architectural barriers in public accommodations where they include in the to lease agreement that the tenet will slowly be responsible for architectural barriers on the property this is the reverse in the common area right but what's your precedent that suggests this reverse what you call reverse aspect  makes sense because i can understand how the owner of a big shopping mall has to keep the common areas clear for anyone's use in the public and can put some contract provision in the ships that liability away to the tenants but i have difficulty understanding how tenants should be liable specific points in if you look to the general which includes eighty a liability who's responsible for eighty a liability one is operators and this court has defined and the department of justice in turn has defined operators as individuals who have control over the public accommodation but as a separate category they include landlords and tenants now if you were to read anyone who's going christmas shopping knows that you can park at one side of a shopping center and wind up half way across now let's assume this isn't the facts of this case i'm just using this is a hypothetical let's assume that they parked at one end of the lake elsinore shopping center and then walked all over to walked over to bed bath and beyond and let's zoom the parking spot where they parked was inaccessible now bed bath and beyond terms of the lease agreement leases the common area parking now in theory you could argue well it's not in front of their property but that's making plain to not let's not go there but they're shopping mall every single tenant there were responsible for the full parking yes and you're turning the malls into condominiums i'm not certain i would go i wouldn't say i am but i'm pretty sure congress that that's not argument based belief it's based on the lease yes not their control well your honor i have forty five seconds remaining and i really wanted to save more and more times than this i would i would enjoy discussing that with you  for the part agreed your honor agreed and that's that really one of the primary issues that we face was in the trial court level we submitted evidence competent evidence  pay into a common area means pool which is a proportionate share of the tenants responsibility for contributing towards the landlord's cost of maintaining the entire facility including the parking space station and then you repairing and keeping in compliance with laws the common areas directly to the land or no i understand that the potus in case focused on extending the liability to a landlord for tenant areas and that makes sense to me or owners and the reason it makes sense is because the landlord does maintain and retain ultimate control over the property it owns as refers an area interest meaning that when the leasehold expires it goes back to the landlord but that's not the same with the tenant and your owners pointed out what i learned in law school was the reducto ad absurdum which is taking a term or concept to its logical extreme and when we have a situation here or any mega mall it does take up one of these westfield mega malls where you have hundreds of thousands of runnable square feet all kinds attendants big parking structures are you going to impose on the cell phone case kiosk that pays point one percent into the camp all obligations for twenty restrooms of my resume because i don't have any on the last one for precisely and not just that it's just not fair or reasonable now bondeson case does raise a concern and the concern is it was raised in mr hubbard's belief was that there is a potential that some crafty landlord or tenant could somehow enter into some type of collusive agreement with the shell organization for the purposes of voiding at eighty a obligations to remove barriers that rightly achievable first of all obviously there is no evidence in the record here to suggest collusion bed and contribute to the cost of insuring that the parking lot of the bed bath and beyond will contribute to the common area maintenance pool which is a fund for the taxes and the maintenance of the entire shopping center as a whole not that bed bath and beyond will specifically allocate a certain percentage of what it contributes towards one expense or the other then it says the landlord supposed to take that money and use it for the common areas which of course makes sense because as we know if something went before well the league's well that was the that was the obligation the landlord assumed in the lease to comply with all laws regulations and maintain an operation about what the contributions were because oh about what i don't i don't have the specific language in front of me or owners and i can't read it all but i can generally do they can generally tell you that it's a common area maintenance pool that talks about the cost of maintaining insuring paying taxes on the landlord expenses for handling the common areas which of course and then the landlord has the obligation the ultimate all the geisha and control and that raises a good point is how if we don't have control over these common areas how i think there's another analysis that goes here and that is the simple fact that is this court is recognized under the a b a there's only one remedy and that's injunctive relief and for injunctive relief to be granted there needs to be a remedial benefit otherwise obviously an injunction is halt and the court and grant here there would be no remedial benefit again if you were to enjoin but you could cases in the mall has no power to go fix these common areas that resides who simply let the landlord this is very happy just like law school but i suppose the best beyond and not make its contributions you least promises and then you have a contractual obligation and you know judge lewis looked at the lease and he applied the black's law dictionary of lease possessory interest and as we know under california civil section six hundred forty four the california reese you look at the ordinary meaning of these terms and he found that we can lease the facility and what i think about it it's not a lease maybe it's a license maybe it's something else but it's definitely not a lease we're case was dismissed it would be that one particular client was just like the state claims but the other claims that were being prosecuted were or still was still subject to being found as being filed war maintained without reason  that before why before you get to this is the case a concern for you what was the remediation done in in response to what the plaintiff brought to your attention the parking lot was a remediated by us the parking lot was complaint and issues are resolved in their favor by remediation which moves that claim and there are one or two claims left that you prevail on and the district judge the word you attorneys for you something seems backwards about the us raise a point and it really clarified an issue in my mind and that is the claims may be moot with regard to lake elsinore marketplace but they're still frivolous to us and the reason being is they should have been we should never been sued in the first place because lake elsinore marketplace didn't back settle and resolve those issues that doesn't matter it's not the fact of the settlement i mean you can settle with was the strikes i clearance for sure your honour's there's no basis in law logic or reason for the strikes i clearance position unless of course we had we made some arguments about why somebody would assert issues like that location a place where toilet tissue dispenser when we have one that's fully compliant and then we also have the paper towel dispenser when requiring the use of twisting pinching mean they did try to assert that it was too high a summary judgment but because of the all over ruling it wasn't considered however the barrier that was found through us was the one they required grasping pinching  defense attorneys fees and one of these cause one of these cases it it's a very hard decision to make but i would posit that it's very important it's critical in fact fox versus vice was not raised by mr hubbard down below at the trial court the fox or suffice case that says you have to say show but for however even though we're now criticizing stated we would not have gotten past or even gone to the answer stage at this lawsuit but for the feel of us lot of frivolous client the two claims that were moot the bathroom door closed or in the under sink pipes bathroom this case would never have gone to the answer stage let alone past the answer stage every single thing that depositions the summary judgment motions motion to strike affirmative defenses that mr file motions to consolidate all of that they weren't fees because these specific claimed were unreasonable and the trial court found some of them and some of my not have been do you think their interpretation of the regulation forty eight actions of record you will see that that that the toilet tissue dispenser there's two of them there's one of them the paper towel dispenser well the paper towel dispenser again it's something that doesn't relate to plaintiff time in connection with the summary judgment motion in mr colors declaration i'd like to deal with them in reverse order for obvious reasons first frivolousness is determined at the time the complaint is filed the simple fact is if the court disagrees with me on the lease agreement we didn't have the lease agreement when the complaint was filed we didn't know what areas that bed bath and beyond least in the common areas until we got a copy of the lease during litigation so it's hard to say that they never should have been included in the last i'm just i don't know and i'm sort of all it would seem to me that the time which you say makes sense but the time in terms of attorneys the liability would begin when you got a copy of the lease and if you got a copy lease and then the claim then became frivolous even if you didn't get it would seem to me what you  license actually if you look to the very best you are page seventeen if you look to the very first paragraph it says or the very first title that says lease agreements this lease agreement is entered into i think was only by analogy to the sort of fair enough second if you look to the common areas that they are leasing their leasing all areas in the shopping center which are from time to time available for the joint us benefit of tenets and other tenant occupants of the shopping center and their respective employees agents blah blah blah including but not limited to all parking areas parking spaces sidewalks entrances exits by definition they leased the entire shopping center it's only when you go and that's on page by once again s t r seventeen it's only when you go down to s c or eighteen maintenance of common areas that's where the landlord is burdened with it under the lease agreement they rented they lease the entire shopping center they then use that lease agreement to give the management control and limit their liability of the common areas and if you can't say that we're frivolous for arguing that what's good for the goose is good for the gander enough owners can't use lease agreements to fix to limit eighty a liability against tenets than ten it shouldn't be allowed to use lease agreements to limit eighty a liability against it's not that we made it up and it's not we didn't have a good basis for it i included our statutory construction on it and we convinced at least one judge that it passed that it was legally sufficient and that's judge carter and rush the dental which will be arguing tomorrow so you can't say well i hope the court won't say that it's frivolous just because it disagrees with me if it just agrees with me the toilet tissue to spencer that was a pure issue of california law we said so in our summary judgment motion lou never reached that issue he dismissed declined supplemental jurisdiction over the state law claims we never said it was a violation and the court never ruled on the state law issue you can't say that it's frivolous for an argument we never made on a claim that the court never considered pinching grasping up i this is heart i strike and so and they found this argument so frivolous that they added a lowered paper towel dispenser that doesn't require pinching and grasping you can't say that if they were mediate the barriers that our claim was frivolous second or last i guess i could say is how this declaration is not based on actual knowledge nor does it say that barriers have been removed at the facility it says on page two six one i am informed and believe that pla be entered on the court's docket pursuant to a settlement agreement lem cause the shopping center remedial work under the sun on an agreement to be timely completed as a two thousand and twelve more than six months ago plaintiff never communicated to lend any objection or complaint regarding the adequate it and some such remedial work doesn't say the barriers have been remediated it's based on information and belief at the summary judgment novel not personal knowledge or versus bank of america clearly says you can't do that and that's when your case is to not you your honor but the ninth circuit might be yours i don't know the author of that so you know say what you want about us we have the courage of our conviction and