seems more straightforward the second regarding risk judicata and the different types of residue to cut are they going to come into play when there's a judgement in favor of a defendant in state court in this case we have an arbitration clause from two thousand and six for a loan the repellent here had a single duty which is to pay the debt after that he breached their duty rescued a card it comes into play and the claim is extinguished now there's a question other whether we use the name urge or the type of regular car or whether we go with restatement and call it merger and bar but here the outcome is the same because the claim is extinguished on either one for merge most california state court law deals with the issue of merger and all the published cases in california deal with that as merger however all the published cases are also regarding plaint or plaintiffs or the prevailing party there is no published california case law that i was able to find in which a definitive the prevailing party that's published in the district court dealt with two cases one from illinois which deals with it which deals with illinois merger standard which is a different merger standard and in that case the the public were stated that under illinois merger doctrine only the claims that were actually filed are barred and so on that basis they  found that the that the merger didn't apply because the claim had been raised in the earlier underlying action here in california merger applies to all claims that were brought or could have been brought including contractual duties were at issue and then there was some language the court had several other things that mention it's not clear which of them was the basis for its finding one of them was they didn't specifically state breach of contract another was the defendant one and the third was would you just mention the fact that that the arbitration award mentioned in a forcible contract is and why isn't galaxies assertion that it owns them on here which is subject to the arbitration writer anough to show what he has a right to arbitrate this is truth well that your best authority in support of your position with two authorities you are one is the ninth circuit in newton v the party who is asserting a right has to establish that they were signed those rights and they also have to establish that the parties selling or signing intended to do so here we don't even know who were signed the contract that's not presented and there's a reason for that we believe it's a multi step assignment we're not giving a date we're not told we're giving i think ranging was something happened but all we really have is someone saying i work for galaxy they have records i'm familiar with them those records establish we have standing other than saying their records exist there's nothing actually stated if you want to rely on business records you have to show them provide a foundation attempts interior decoration we don't have that or we were percipient witness say what happened who did who sold it when did they sell it how did they sell it we know none of this and so you simply can't establish standing just by saying i have there's some records i've looked at them we have it it's seventeen says that the when when when a defendant is a prevailing party that the claim is extinguished the question is what is the claim how wide is the claim and for that we can look at three d concerning splitting the extinguished claim extends to all rights of the plaintiffs to remedies against the defendant with respect to all or any part of the transaction i don't which the claim a rose and references the restatement restatement does not use the word extinguish and it does for a particular reason because nothing is extinguished the only doctrine that is applied here is the doctrine of bar the doctor merger has no application because the judgment the superior court was one favored defendant on doctor applies it's a bar in the doctrine of bar states that that plaintiff may not there after maintaining action and that's what happened here you don't see a galaxy or vital suing anyone the where the box was checked for defend it it doesn't state the grounds for the judgment doesn't state any sort of reason it was a statement a decision that was not a reasoned judgment there so a myriad of things could have happened and that's appeared court judgment for the defendant you ply the separate and distinct doctrine of bar and that plaintiff in the underlying case my clients in the appeal are not allowed to sue but they don't sue here they can still in force the contract in the form of a letter or perhaps a phone call they just can't sue on it it's perhaps uncollectable but the contract none of us is it is viable and it has provisions that even has a savings clause savings cla important to us they left their opening brief but that sadie's clause is in the last paragraph of the arbitration writer says no matter what is determined based on the enforceability of this contract this arbitration writers going to survive so they can only take an action yes but the the actual debt the loan is not extinguished and you can read the restatement that were extinguished is not used simply there barred from final action the appropriate standard of every review here is clear because you have the district judge finding in favor on that evidence evidentiary ruling that the declaration was sufficient now if there's anything i've learned from this morning so far is that brevity has value and brevity is important a summary declaration perhaps summary in nature but it had everything it needed to have the declare had personal knowledge she was competent to testify in her conclusion was based on the review of those business records that there was indeed an assignment to galaxy this was sufficient factual information to establish  establish the assignment again it was based on her personal knowledge and you don't need to attach records the declaration itself the testimony of the declarant herself can satisfy the personal knowledge of the declaration that you can glean that from in your own green anything from something but she never says she doesn't have to say there are we would submit she doesn't have to say that based on the context of the declaration and her but nothing was prevented nothing was presented to contradict it there was nothing presented by our con the appellant to the contrary no evidence was presented and as we discussed earlier at this stage of the motion we know  that is opposed on the grounds that no agreement to arbitration exist then this recourse to give to the opposing party the benefit of all reasonable doubt and  business records and foundation for this admission of this you know assignment or admission of her testimony that there was an assignment to galaxy so what you had was simply unfounded speculation as to the clarence allege lack of personal knowledge and when you have simply that sort of speculation that she lacks personal knowledge of the events that is that's not render it inadmissible still at miscible and it's a preponderance of the evidence standard when you're on this motion to compel arbitration and you have admissible declaration pernot perhaps not heavy in weight but it's there and the testimony of based on personal knowledge is that there was an assignment to galaxy galaxy purchased it  and you have nothing refuting that you have nothing produced or submitted to the contrary than that that wins the day based on the preponderance of evidence standard that the district judge appl at at that stage in the proceeding it's a very first motion in the case the focus is not at the admissibility of the evidence form but on the admissibility of its contents i think that's what the district judge was alternative grounds for affirming the district judge's decision you had the appellant himself submit to key evidence sherry positions one is on declaration he attaches the contract the loan contract with the arbitration rider so that is another mechanism by which the rider comes into evidence and the judge is allowed to review that and you also have the request for judicial notice that appellant submitted at the district court level asking the district judge to take judicial notice of the contract which included the arbitration rider arbitration rider self is undeniably brought whether galaxy can enforce it this whole standing issue whether galaxy can force the agreement that is for the arbitrator decide conclusion galaxy proved sufficiently that it is the yes in any helicon presented no evidence to the contrary to contradict that showing the court was permitted to accept the declaration which summarized the business records doesn't need to attach them evidence to prove personal knowledge may consist of the declare it's own testimony and that's federal rule of evidence six o two and the court used the term gleaned in context of the declaration personal knowledge can be gleaned from the review of the business records is we're talking about the superior court case back it was kind to them hey so we'll pursue somebody sued somebody we don't know about my clients predecessor my clients nasa me or my clients predecessor sued the consumer w and really though that it was that it was a breach partial breach the only result we know is that the court issued the california form judgment in favor of a defendant but we don't know what he sued for you know it was for suing on that particular loan again but it doesn't extinguish the debt and there's case law in our our in pelleas brief that goes through that's as well settled that  debt itself is not extinguished when you have a doctor in a bar it only prevents that lender from bringing suit bring action that's straight from the restatement as well thank you just briefly rather like address three issues the first is what the restatement actually says as we just heard the claim by galaxy is that restatement section of seventeen only bars subsequent judgments that's actually not true i'm going to read from section seventeen part two if the judgment is in favor of the defendant the claim is extinguished and the judgment bars and subsequent action on that claim everything that could have been brought up at the first trial including remedies such as arbitration second please there's an issue as to well how do we know that this contract is the same one that went to judgment we actually do know that they're the same and here's how on april twentieth two thousand and ten in the state court action beneficial file a declaration that declarations found at the excerpt records pages fifty seven to sixty what did they say they sa they accelerated the account balance what happens when you accelerate you place the entire balance a tissue all of their claims are at the table we don't have a judgment part of a contract we have a judgment on all of the contract this is a loan agreement is only one thing that  is the paid back there aren't any other duties floating around and then in the same declaration they also submitted a copy of that loan agreement basis at except search of record page fifty eight lines thirteen to seventeen where she makes a declaration card and that the actual loan agreement is found at excerpt of record sec pages sixty one to sixty three the third issue i think is i'd like to address just briefly this notion it's our belief that what the parties meant was when you're done paying the agreement ends an arbitration clause stands whether that's what it meant or not though is really a moot point and here's why this is a contract between t individual parties they can agree to bind each other they can't bind the court res judicata is not something optional you can just wave by contract and both merger and bar subsets of the generalized doctrine of raise due to finale of judgments and so we don't have people suing over and over again the same thing you're reliving the same things and getting conflicting outcomes the raise you to cut is there to protect the public in the court system it's not there to protect just to protect those two parties do i don't know exactly what the intent of the parties was at the time you cited regarding that language but even if they intended to somehow waive their rights we've just read you the card and you can't do it because it's the post by the court not by the parties private parties