i think the case is a pretty well discussed in the briefs all the issues but i do want to stress two points here the respondent has taken inconsistent positions with regard to whether or not the abatemen action was a summary proceeding in in in a brief filed with the state court that their trial brief they basically say this is a summary proceeding and that's found on page three lin twenty one of her requests for judicial notice we have the brief for her and now and in the district court and in this court they take the position that oh no this is a full blown trial there's nothing summary about it had the opportunity to litigate all the constitutional issues and nothing could be further from the truth if we look at what this if well if you look at ok but where are his positions are we obviously have to put apply the law so if i  california's theory of primary rights the unconstitutionality of an ordinance is the defense to the enforcement that that should have been raised in the state nuisance of faith meant action so doesn't that mean you have had your chance to raise the federal equal protection claim and state court and didn't do it no your honor the unconstitutional aspect goes to due process it has to pass constitutional muster under the due process clause this is an equal protection challenge the only issues in a sump in a per se nuisance abatement warrant application or whether or not the nuisance exists and whether or not the statute is facial properly well no your honor because what we have here is a situation where what's being challenged in federal court is the city's policy and practice so i know you're saying it differently but if you could have raised it in state court that's what we're looking at by couldn't you is that in state court is that a claim that a state court would say oh we haven't heard of that well we attempted to raise it but we were shut down and that's the reason that we put is all that was at play that's an affirmative defense i don't think there's any pleadings even involved it's kind of like a motion they file an application the court can even issue an x party i don't think you're entitled to a hearing the only question is whether or not condition dean the be a public nuisance exists and whether or not the statutes facially constitutional and this only applies to private property you don't even need the application if it's on public property we see that if we're not persuaded by your position that it's a summary proceeding you then lose no we don't you think you could have and should have raised it in state court well we didn't get the full opportunity to do that and we got shut down we have tempted the show just spread out but you had a you had a four day bench trial there so it certainly wasn't a summary proceeding well it was i mean that that's the longest summary proceeding i've ever seen well it was four days a length because the city put on witnesses we didn't call anybody well but if they put on witnesses don't you cross examine the witnesses what we did but ok you didn't just sit on your hands right now but those that testimony went to the existence of the condition latter is there a part of the record you can cite to that says judge i want to raise the constitutional issues and the judge said no you can't but i think i thought we did that with regard to the cross examination of the mayor but here's the  minute an ok so you cross the mayor and ask the question and that's your constitutional right you're raising the constitutional you didn't do it and pleadings didn't do it directly the court the court overruled the motion because there were no pleading that basically raid that raised the issue correct well the court overruled the court sustain the objection because it was irrelevant to the to the two issues whether or not the nuisance exists to issues that were raised by the parties burden to show that one it was litigated or it could have but whether people they don't they don't bring to the court the either of them just for quarter this court they don't have the state court abatement record but you have to show to this court my understanding is that it sure burden to show that california state procedural law barred the presentation of your claims and the district court found that you failed to cite any state procedural law that bars them from raising federal constitutional claims as challenge to the city application and state court is not what the just a court said well the district court said that the motel claims are ordinance but if the issue is whether or not the ordinance is facially constitutional and we're challenging of cities policy and practice of getting involved a detainer action do you lose and i think the answer is yes you would because if it's not an unlawful detainer action you could have and should have bring whatever constitutional arguments you had in the state court proceeding i think their task today is a little easier than yours because we're looking at the two actions same parties same claim then of course the immedia question is why didn't you raise it in state court i take it by your argument today that that you're raising the claim why i tried to raise it in state court but i was shut down from doing that and i really didn't see that in in the record so i'm kind of where that hallin is i if you can point me to apportion the record where you attempted to frame the issue and raise it and the court shut you down it's i don't know if that makes would make a ok so you're almost at two minutes so if you want to save the balance that you have and then give us the record cites when you come back yes ok that would be excellent thank you authority for the concept that it was to say it was an unlawful detainer the two proceedings arise under different statutes in the california code a civil procedure and one that controls an abatement action which is  p seven thirty one applies only to abatement actions it does not apply to unlawful detainer is and it does not limit the issues that could have been raised as a defense by it it seems to me  that that the city just only enforces this then when they have a complaint right yes right it seems to me that there might be a situation where that would be problematic for the city or particularly if someone could make a show wayne that the city just in force is that against people that they don't like like the well as might have a strong claim under this or supreme court's class of one discrimination actionable under the fourteenth amendment equal protection cla i would say in the village of will a brick vs all like the supreme court held that in the knesset polities intentional demand that a resident be forced to bear a higher cost over other residents for no good reason was irrational and violated equal protection so it's it well it's not that it might he might not have a frivolous claim but the question is under california primary rights could it have been right exactly and i while i believe it is a frivolous claim w abuses its power i absolutely agree with that even though i am the city's lawyer cities do occasionally abuse power that being said the complaint which is essentially the same two causes of action the original complaint filed in the action below in the and as i as i read the record llewellyn basically wanted to enjoin the city from proceeding and its action but judge morrow said no we're going to hold the federal court case in abeyance and let the state proceeding go forward by doing that doesn't the federal court retain jurisdiction the constitutional issues and effectively i mean doesn't the plaintiff have a right to kind of rely on that well generally i think the issue is the plaintiff would but for the the concept of issue preclusion that in fact and this was the point i was about the make these claims the claims that the district court ultimately dismissed and which causes us to be in front of you were alleged in that original complaint which was filed prior to the time of the state trial so the plaintiffs or the appellants here knew about these claims they had already asserted the claims th injunction to enjoying the state court proceeding from going forward and also it then applies younger and says we're going to abstain and the district court basically says in its decision judge morris says raise these in the state court i think that line is essentially explicit in that decision and she doesn't limit it by saying just the constitutional issues or the ordinance issues or just as raise it all in state or raise it all in the state court and  the city to block that little wind from the their ability to raise the issues that you checked when they tried to go into that area on cross examination of the city's witness and i'm not aware of it your honor i don't believe the record reflects i didn't try the case but i don't believe the record reflects that i believe that the the issue which has become a little bit of a side issue here of the cross examination of the mayor of indian wells was on a different issue it was not on a direct constitutional claim and of course the constitutional claim should have been raised both as an affirmative defense or could have been raised orally but you would have wanted to put on evidence specifically about that and it was not done so they raise any affirmative defenses and there i believe they didn't i believe they did i believe they did argue about due process which was a different constitutional claim and that's of course one of the ironies here is that they do make some constitutional arguments at the time or they did they just didn't make these well under your interpretation of california's primary rights there it is there any thing that precludes this argument from being made in state court no and i think justice was correct that once you conclude it could have been made then i think this this case this appeal is over because once they could have made the argument and for whatever reason decided not to and i must admit it's a bit inexplicable to understand why they didn't since they had raised it in the district court prior to the trial maybe they were doing little for shopping maybe i mean it's it would not be for me to speculate but it does appear that they specifically stayed away from the issue perhaps to preserve it somehow for the district court as we all know that our judges are really we do your honor so all that being said  you know the last part is is that it within the realm of abatement there is a term summary abatement summary abatement actually i believe refers to the concept of a city or or a government entity abating a nuisance without proceedings this was not a summary abate if it had been a summary proceeding then that appellant would have a strong argument to say i couldn't have raised it cracked well i mean let's say it was something x party or it was just something that just happened and there was no hearing how do you raise that issue i'm the only summary proceeding i'm aware of that they have talked about is an unlawful detainer there are limits to unlawful detainer zz in terms of what can be raised although if it's the government who is a plaintiff in an unlawful detainer i'm not sure that's true because unlawful detainer is rarely involve a state agent we never got to that because frankly both we and ultimately district court agreed there w simply no evidence or no law to support the proposition that what occurred over a four day bench trial was the same as an on lawful detain or proceeding and so we're kind of discussing a hypothetical you know i could go back and research and figure try to figure out if the if the government is the landlord whether you can raise a constitutional claim in all of the tane or i don't know what the answer is as i stand here i will confess but the problem we've never reached that issue because no one has ever had to reach that issue because no one has agreed that what occurred at the state court was the kin to it on and off of the trainer and that being said i mean i guess as a lawyer you know i think so justice is sort of saying it if i had the argument i would make it i mean it doesn't hurt to make the argument i have a court say you can't do it and knock me down i mean if nothing else it gives me an issue on appeal they didn't even do that here they they didn't raise it at the at the trial court level and they didn't raise it at the california district court of appeal and so it seems like they had lots well and that would have required i think it's in the record additional briefing they would have been allowed to raise that issue with it to the california supreme court so with that your honor i do think that once the conclusion is reached that  this was not a summary proceeding and they could have regardless raise this issue they could have raised at the trial court they could raise that the court of appeal at that point then issue preclusion clearly applies under the california cases that that deal with that people versus carters imerman versus daughter and the city ought to prevail here thank you for your argument thank you very much the court sustaining an objection but i will agree that says question let's talk about enforcement philosophy it's very philosophy among the city council i'm not talking about anything that's discus deliberation but is there a philosophy premis from which in force mind action takes place that the laws of the city of indian wells are superior to and preempt general laws david california and then there is an objection and then the court sustained and then there's another question now ma'am isn't the objective of the heads high ordinance to get neighbors to agree amongst themselves and resolve their disputes without the city getting involved objection sustained and it goes on for pages like i don't know the court wants me to take the time here to read this but at forty four seconds right so we did attempt to raise it the issues were raised the court just allowed to the evidence when you're shut down there's nothing you can do