this case is about parking and resa does not dispute that it is a limiting critical parking for my classes my clients own a building in the corner of the manhattan village shopping cent rely on nearby available parking so that their customers can have that easy in and out experience that they expect from the stores but as the court has seen the amount of parking that reef is eliminated in that corner of the shopping center is staggering and so what's what's going on right now with the parking deck construction in la to judge that it from what i understand parking has been completely shut off and run out asked because they are building the north  right now so the north construction is still ongoing that's right you're on aren't thank you start in iraq no problem in the two thousand and eight settlement agreement the parties agreed that there would be six hundred and twenty lot s area at the end of construction that would have been a one hundred and forty three space increase above the four hundred and seventy seven that existed in the surface lot pre construction but the latest site plan in the record from that will surround that north deck area causing a greater demand on those faces and putting the hof in a partisan and even worse position when it comes to parking and as judge bennett pointed out that's not all in the settlement agreement reached also promise to violating the agreement counsel i want to ask you an unrelated question so one of the issues on appeal is whether the litigation privilege bars  n contract claims and as i understand that the courts of appeal in california are split and that currently this issue is pending before the california supreme court in doe the olson should we wait for dodi olson before deciding the issue of whether the litigation privilege bars the counterclaim judgment at this court should not wait delay would be very harmful in this case because as you point out construction  ongoing my clients need their claims to be able to proceed to trial expeditiously and i don't think that the california supreme court would reach an opinion that says the litigation privilege never applies in the context of a breach  of all although the question as i read it from their website that that they say is under consideration as does the litigation privilege of section forty seven dollars subsidies subdivision be applied to contract claims and if so under what circumstances so i mean i don't know what the alternately decide but the way they've closed the question suggests that they might answer it it does your honor but it's in all likelihood the court will reach that's sensible standard or rule of contract context when the contract did not clearly prohibit the speech related conduct and when applying the privilege would further the public policy behind that privilege  in those cases said is there was a contract that may appear to or look like a party was waiving its rights to say things to go to court to appear in judicial or class i did a full proceedings but when we actually examine the language of the contract it wasn't expressed enough it just wasn't clear enough to put the party on notice that it couldn't go to court or couldn't go in front of an official body and be dark council like it's hard for me to see what the good public policy behind a rule like that is that if the parties have agreed to something in our contract like a settlement agreement and they do something which would otherwise be permitted by the litigation privilege but either really expressively we're just simply as a normal matter of contract law they promise not to do it i it's hard for me to see the public policy of saying no unless you make it really really really clear as opposed to clear then we're going to hold its party even though you've made the promise it's hard for me to see the public policy behind that well you're the reason judge bennett the courts say d it has to be really really clear is because we're talking about waiver  we're talking about waiving important statutory right that's been around for one hundred and fifty years in california and five hundred years going all the way back to the queen's bench so this litigation privilege is a crucial fundamental right of parties at most you know freedom of access to the courts and so in order to waive such an important right there has to be an unequivocal clear compelling xpress language showing that that party said i will not go and do that and in this case there is no such  about this sort of balancing between wanting to uphold the contract rights as judge bennett points out but also wanting to further the public policy purpose of the litigation privilege which is allowing folks to go to court or class i v additional proceedings as the hosking to part when they went to court and when they went to the city council hearings now the california courts have recognized and this is not disputed by raef that this sort of conduct falls well within the statutory language of section forty seven dollars b the litigation privilege statute so there's no fight  over whether the litigation privilege actually applies the fight is over whether there was a waiver and so that brings me back to my point there has to be about clear xpress well there's there's also there's also a fight about whether it ever applies in a contract because certainly traditionally the litigation privilege has been in toward has been applied in tort claims like defamation and although i haven't gone back and read anything from the king's bench that would be my guess that anything over there would be in a short context not a might happen in this supreme court of california and there's no reason to believe is there that the resolution of this case by trial put to one side settlement will take place before the california supreme court rules is there about the exercise of judicial fish and see under these circumstances when we are essentially awaiting instruction from the supreme court of california or would under other circumstances it probably will take six months maybe  i read the way in which case is low through the california supreme court in the constitutional obligation to take things under submission within ninety days so what's the harm to you except delay gratification the follow what it has said in its own opinion which is that the litigation privilege applies to quote virtually any action or any action except for malicious prosecution so i love the california supreme court has not squarely confronted a case with a breach of contract claim it has use that broad language to say it applies to everything except for malicious prosecution in because i point out there is no split among the california court every case that reads cites from the california court of appeal recognizes that the litigation privilege can apply in the breach of contract contact it's just in some cases they said there was a clear enough espresso waiver here and not enough of a strong public policy on the other side and we're going to say the litigation privilege does not apply so there isn't a split among the they said we wouldn't oppose some of it if you we reserve the right to oppose it if you make material changes right i'm sorry your honor i'm talking about my client review america's promise to the oxiana parties in the settlement agreement remember the settlement agreement had two components the consideration was we agree not to oppose their project to change the use of their building to put in a restaurant which would impact our ability to use the rest of the city in a detrimental one we agreed not to impose and they got it they went to this duty we didn't oppose it and they got that entirely in consideration for their problems they promised that if we built the site plan they wouldn't oppose it and in addition that if we changed the state plan they would only oppose those things which either detrimental  materially impacted their build that was the deal the party struck in two thousand we did our part what's going on in this case is they're claiming that that wasn't a bargain in fact it was something council you know the heart so my st question on this point is judge real road while section six of the settlement agreement states that the agreement does not constitute an amendment to the  agreement would essentially lose all meaning if the court were to adopt plaintiff's interpretation of this action as preserving their easement rights during construction so he read that section out of the contract because it would be in his view meaningless i mean how the contract would be meaningless how can that be right when you have this clear statement in there out can it be right on summary judgment to basically just say i'm going to or i'm going to read that out of the contract well you're i wouldn't characterize it having read the contract what the what the court was saying and then we argue below and you're not a seal is that there could be a lot of other reasons why someone would want to affirm the contract remains on an image and in the end it still exists after all this career agreement was recorded document and we certainly didn't want to have any inference that preserves their rights who are not be unduly disturbed during construction and it's again nothing shall constitute an amendment and judge real read that language out of the contract it it cannot be the case that cannot both be true that the that the korea remain an amended and raef america had rights to build as it did  course there's been an amendment in the sense that the parties right if you want to call in and the parties rights have been it just they're not the same as they were if you just look at the korea if you look at the korea that's not what judge real said what judge real said is that that it's out of the contract now it's out of the it's been written out of the arrangements between the parties supervenes that is the settlement agreement super korea and if you took a different position which i kind of sure you taking that what we're really talking about here is harmonizing two agreements the remain in place in a way that is a reasonable adjustment he said now i think a fair reading of what he said is that to the extent that the cited green i'm sorry the settlement agreement conflicts with the career the settlement a good good remit is what you follow it doesn't mean the korea has been amended not at all there's no there's a distinction between parties adjusting their rights and obligations that they have with one another and formally amending an agreement the two are not the underlies the appellants arguments that i think it was pushing this concern that you hear that there's time to be some notion that reefs quote discretion to change the site plan of the settlement agreement must have some bounds to it and there the balance of look for that in the incorporation of the careers section nine point one into sections so your view is there are no it your view is there we can get whatever i want that's that is that your position that is our position and i'll tell you why the reason is in this gets lost remember we were we were they can determine what gets built in the commentary that was why we didn't think that they had any legs to stand on back in two thousand and eight tell us what to do but in order to resolve that dispute dispute got resolved the parties entered into the settlement and now we're being we're being asked well how could you not have any limit on what you do in the commentar when that was the very least so it was also kept so council exhibit judy to the settlement agreement on the parking acts which talks about a lot of what they're going to what they're going to have and during stage one there not be two hundred and forty dollars parking spaces your view is that as long as you decided you're not going to do it in stages then they're not entitled to anything that's an exhibit you because you've directly that only the two hundred and forty space provision is is impacted by our decision which was to sell when agreement gave us to do this not in stages and by the way doing it not is stages but us deals with a lot of different aspects that go far beyond the issues that we're talking about there i know but we're looking at the issues regarding the east and in the common area and section i'm this except for the litigation costs won't harm you because you know alternately when when they if we reverse and allow them to pursue claims under the korea because they have not well we certainly have that unfortunately happens we're back in from the trial court and we're litigating their claims against us under the korea and of the settlement agreement we will argue that under the korea they have no or they have no rights because we're not a prime party to dictate what the uses are and to come we never made that argument below we've actually made the argument in opposition to the lunar injunction motion that was brought up for purposes of our summary judgment mostly we were construe judge judge real is decision granting our motion on our against their korea claims as being immature to cation rights to the parties have as it relates to i'd be interested in your position counsel on the the litigation prevalent your issue whether you think we should wait for the decision and  don't think this case is so different than a few cases that the courts have found that the litigation privilege does work on contract claims that it is seems like it's waiting around for you know bus drivers who shouldn't be driving school school kids around and things are good and so is your is your is your bottom line when cross that you would agree with your colleague that we should proceed to decide it and not wait for the court of appeal are not wait for the california supreme court i don't think you need to  has to be clear and has to be pushing forward the policies underlying litigation problem even if you would think that he dealt with that issue is that you would run up against the fact that there were many many things that the parties did that simply were not allowed by the agreement clearly or that had nothing to do with the thing that drives real focused on which is material or detrimental changes that agree there are things that were done that are nothing to do with us in a building but still they opposed it and therefore there is no one clarity that needs to be worried about it was a clear contract they said rights are granted to any party not just the prime parties the prime parties are the special parties that have certain rights to make changes you know without having to bring the other parties in but that is not using the rights or parking rights are not one of those changes that can be section nine point one where already an easement right brings with it under the law the right against unreasonable interference that's what the law says about easements but the korea went even further to say that even during construction where there's a temporary condition that's going to be blocking that common area you still have to not unreasonably interfere with another party's use occupancy is so so council i think to me i mean putting aside the question of who's a party to the korea section nine point one clearly talks about i'm going construction why do you think section nine point one would would cover the final result after construction i e what you ended up with after construction was done as opposed to interference with your ability to use and enjoy while construction was going on where in the career were nine point one would it give you a right to bring a claim based on what you ended up after construction was done so a couple points on that charge but at st i don't think the word construction in that section can be read so narrowly as to only to apply to a staging of a quick mint or fences blocking off things i think construction naturally is going to me the construction acted it is and the actual construction and the buildings that are constructed and nd jobs and it is the right story where you need to point me to language the title is general construction requirements nonpoint one interference with construction and that goes with construction barricades clans and schedules you have to show me something in nine dollars that would suggest it could be that it could be breached by not something that's during construction by you ended when a party owns an easement right it can sue when that human right is on reasonably being interfered with and so we don't rely exclusively on section one point one euro judge bennett to your question to reef about whether vision is you recognize their reef as some discretion to make amendments to the plan but it can't make such drastic and significant changes as to then unreasonably interfere with the hacienda party isn't that right if you were going to read it the other way it would mean as judge occurred to point out what that nuclear waste facility hypothetical it would mean that reef could change its plans that were agreed to by the parties into the mix and built something entirely different and the hostin to parties with i have no avenue for recourse that is what recent saying here it's saying we could have built a football stadium in your parking lot we could put a nuclear waste facility there and you would not have been able to challenge that as a violation of your reason right deep just stating those hypothetical show how extreme in nature reese argument is and how it completely ignores its neighbor easement from your honour's judge bennett pointed out that the contract says the two hundred and forty spaces passed in the maintained during construction of the north and council to reach  and during phase one right your honor but but this is phase one if they're building it in just one phase and not two phases then of course we're in phase one and even if the court wasn't convinced that the failure to provide those spaces violates the technical language in the contract it's still a violation of the good faith and fair dealing covenant that is attached to every contract here those two hundred and forty dollars states were promised because both parties recognized there would be temporary reductions in parking during construction and the