my name is dennis price and i'm here on behalf of the appellant's gary sure and ron sarfatti like to reserve two and a half minutes of my time for a bottle want to discuss two main points here the first is that we need to figure out what the  extent of due process determines when trying to determine a class action waiver or rather a class action releases and in this case what is too far how broad can we interpret it and second way we have to establish  subject to a a very large and frankly very successful class action lawsuit challenging their pedestrian right away specifically their sidewalks in the willits case we brought our suit because there were aspects that occurred after that suit that already commenced and had barriers that were not included in that suit mr well it's brought his complaint specifically talking about the fact that he was having difficulty getting the public transportation using public right the rights away now while i don't similarities don't dictate the breadth of the release because we have to look and see if mr willett was actually interested and parking facilities so the definition in the settlement agreement a pedestrian facility which includes the word on street is very broad you agree yes i do believe it's very broad and i think the extent that that's being interpreted as barring any sort of action as to parking it's unconstitutionally broad because mr well it wasn't advocating for parking it's not in his complaint it's not on the order granting class certification and to the extent that streets are included in it it's there with respect to his that they're wrecked the word story and settlement isn't that suppose are we supposed to look to the intent of the parties contracting parties to see what they meant by street news and that one of the things that the district court did wrong here under california law does not look at extrinsic evidence to determine what the parties are talking about we're not talking about street in the abstract they were talking about something specific that is definitely our position your honor we attempted to put that information in front of the judge at the district level but are requested additional notice was frankly just ignored a number of documents were brought in and that didn't include the documents we were trying to review but other wilson was was not including those in his determination and had he looked into those documents you would have seen an awful lot of indicators that the streets were not in contention you see m statement where he specifies his intent to try and reach public transportation and i anyone who spent any time in los angeles knows there is a a gulf of difference between via killer  it's a constant fight anytime you're going through los angeles it's almost like two separate classes and they're constantly in competition with each other what mr sarfatti and mr cher want to do is drive their own vehicles and be able to get to the businesses they want to be able to get to with their own vehicles but mr willetts wanted to do was use the public transportation system it's two completely competing interests and it's a competing interest that every single driver in los angeles makes every day but mr willetts wasn't indicating it's a couple of ways that the way the cycle tracks work it's intended to isolate the bike lane from the main the main vehicular path what that does is essentially push back all the on street parking so that the bicycles will go in front of the eccles rather any sort of i sure as accessible parking and as this court and the fourteen versus city olympia case determined on street parking is one of the facilities and and services that have to be included and any sort of particular and they're designed to come down so there's a ramp to this side about it since they're moved out there's no side for a good rant to come down on to spur easy access or access to the sidewalk yes if you w hat we see every day when we go into regular parking lot you'd you'd see a striped area where you could deploy around here if you tried to do that there are things called bollards that would be in the path to separate the parking from the from the bike path those are basically like a pillar of it's intended to keep cars from getting to them you wouldn't be able to do that there's just simply not enough room and so there's no way for you to safely deploy those rams or even safely get out of your vehicles because these part of these spaces are not designated in the way that accessible parking typically be designated and so that it's just as simple as that there is no excessive parking in this area it's a new construction so they're held to the highest standards not just a simple what we get will get to and we get to it this is brand new construction that they managed to not do this is brand if your head was bent after the city a lot of new media case they knew better but they chose not to do it and now they're asking that this previous release which had a very tightly find a budget to have that included that this is part of that when they clearly aren't even using that money for that and now they're trying to claim that it's moot it doesn't make any sense and so i think that brings us to the second issue of deliberate indifference not only did they know about this and choose not to do it but our plaintiffs told them about it and then they were told they weren't going to do it and the case of mr fair his lead his responses just went completely and responded with entirely how do we have the opportunity to do discovery on this we believe would be able to show that they didn't even do major and this is an individual that in other cases actually been held to be good enough to show deliberate indifference is somebody who has the ability to make these determinations and he told them we're not going to do anything he didn't say why he didn't say that was done after any sort of  it was just it's not going to happen and mr sarkozy was left central having to come to us because he had lost his ability to get what he needed from the city and that is beyond the scope of deliberate indifference but at the trial court level they did they made substantive determination on those facts and said we hadn't played enough there was simply nothing else for us to amend and we had made that we didn't we've made the pleading standard under federal aids and we were given the opportunity to prove it for itself i mean you haven't someone who has the ability to make that decision saying it's not going to happen and in the case of mr shares his responses were completely ignored and entirely and i just think that had we had the opportunity to even do even a modicum of discovery we would have been able to prove that and the whole point of the rule a requirement is to put the city on notice that was done but judge wilson had made a determination that we were going to be able to prove it and that simply inappropriate at the  making subjective determinations on the facts as alleged rather than taking them as true which is the requirement there are no other questions i'd reserve the rest of my time for a bottle court there are a few issues that i think need to be addressed first and foremost is whether or not this city's on street parking is a program in service of the city without a lot of discussion about whether or not precludes these claims as the court was commenting earlier before we get there this is a series of this is one of the series of copycat lawsuits that came and was filed immediately after the city an did not excluded the court did not make a ruling on their request for additional her didn't consider it we don't know that you know when there's nothing in the record to indicate that the court considered there is nothing one way or the other you are you that are you familiar with chief justice trainer's opinion  pacific gas and electric versus thomas trajan reagan where he said rational interpretation of a contract requires at least a preliminary consideration of all credible evidence offered to prove the intention of the parties yes but we go to the issue of the scope of judge marshall's order proving a class action settlement and as the supreme court has continually said the scope of the class action settlement general life insurance company were judge kozinski writing for our courts said this case therefore presents the question whether parties in california can ever draft a contract that is proof to pearl evidence somewhat surprisingly the answer is  even assuming that was considered it still is not reversible or you're wrong because the question becomes one of if this if the district court was to consider that and was to overrule assume for argument's sake that inju was ultimately ordered on this case the injunctive relief would absolutely interfere with the thirty year settlement that was in brace by well it's by the will itself and that which is one point three six seven billion dollars and don't look at that you know accessibility to a certain location once the settlement the initial question is what is the scope of the will at settlement exactly how do you determine it and did the district court determine it properly here and you are  looking at the will it settlement going through if you look at exit excerpts of the record page sixty seven it decides this that the settlement class plaintiffs have knowledge that there are members of that class continuing on page seventy nine it defines the scope of the release claims very clearly stating that all prior claims and all claims for accessibility over the pedestrian pathways are settled for the thirty year period counsel here's my problem with your position if the common law parole evidence rule were a placebo here i think your argument would have a lot of force as to this settlement language being non ambiguous but the california supreme court has adopted a rule that essentially vitiate it's the parole at the common law parole evidence role as we have recognized and the california supreme court has said that the courts need to consider as a preliminary matter basically all a definition of production facility when we wrote that definition we started at one edge of the roadway actually at the building edge and we describe the sidewalk the curb the gutter the street continuing all the way across to the other side because we wanted to is a sure that when the city implemented will it settlement that it was doing so to the maximum extent of the accessibility it didn't take into account the cycle tracks absolutely on the cycle tracks there is no is the main issue is excess ability to the parking so in other words whether or not a disabled person can park in specific location is not fundamental point the point is how do they get to their vehicle once they parked and  this case was allowed to proceed we would have at least two courts then saying what their interpretation of access to a parking spaces in the access or for the federal government is came out and they did explicitly that there is no accessibility requirements for on street parking there's no statute there's no standard there's no case law that has ever said that on street parking is specifically required there's no blue recurve requirements and keep in mind that this commercial facility not a residential the city has a separate program where they will grant new curbs in front of residential but if you were to require a blue curb at a specific commercial facility if you put it on the north west corner what happens for that disabled individual wants to go to the southeast corner store are you then requiring them to travel longer route were those issues are ever reached by the district court here the district court simply looked at district court level the objection hearings and the record in the willits case which confirmed that all these issues were included have been heavily litigated and one could have within the one point three six seven million dollar settlement  marshall as a related case because that's the role and the central district your honor the clerk actually did look at that and judge marshall rejected them and the comments that she made i believe four that she was on senior status she was wrapping up well it's and that other judges could handle the remaining cases right so there was a jack to the notion that they were related case there was actually servile related cases that were deemed related but were not assigned to her and but the likelihood of harm it's not simply i don't like what you're putting in there and the cycle track you're on are simply moving the bike lane over to it's protected so you have pedestrian access claim that is protected there's no evidence parking and the in particular only seat avenue and accessible and there's no reasonable accommodation for parking handicap person vance your honor there there are no facts alleged as to why it's inaccessible there is a reference that it might be in excess of five degrees but as you know all the political statutes provide variances portraying cannot accommodate it the process is went through full planning and furthermore any accessibility in any modifications over the bike lane the cross walks and pedestrian walkway is are being covered by the will itself and so they're necessarily intertwined in that you can only have accessibility addressed parking their vehicles on the apron of straw of driveways this wasn't access to apron parking it was complaining about people parking their cars on the sidewalk so the reason why it was brought up in the pond text of pedestrian parking is people were parking their vehicles on the pedestrian parkway that wasn't mister well it's looking for parking for himself it was him trying to get the cars out of the way and so i take significant issue with the city trying to claim that this is somehow claim for clues of because mr willett was annoyed that cars kept getting and i way so that moves me on to the interference with the settlement that was brought up and you know i am sorry if it feels like that it's that way but one point four billion dollars is not enough to do this that's how much they settled it for and to the extent that this wasn't included and it will then it's a due process violation and that's just the way it is i mean we can't undermine the constitution and the rights of all these plaintiffs who had no notice that any of this was going to be precluded if they didn't have adequate representation and i don't think there's any way that can be justified to say that mr willetts represented the parking interests of disabled drivers in the city of los angeles he never claimed that he said you never claimed that he drove and he never made any specific allegations about his wanting to park anywhere so how could he possibly claim to have been an adequate representative and i'll go further to say that he didn't if you if you look at his statement as to his status as a class rep that we submitted in our requests for your decision notice both to this court and the lower you'll