certainly i'd like to turn to the question of fairness we have addressed i think the legal points we've addressed the cases directly but it occurred to me that it might be useful to give more assurance on the point of whether the court as a practical matter had a chance to get it right in this point in this case and i think there are two reasons that that's the case here  based on the arguments and the small amount of evidence that was actually cited to the judge in this case he should have been on notice that the issue of the correct  other characteristics but assuming that's correct it varies walker actually said ok if you have something that shows that the completely it wasn't showing that what he had done the district judge had done so far was wrong it was saying ah yes but instead of being an eight or b now it could have been an which is just a totally different that the ball was a bad throw it was caught in the court in the hearings that if this is either a or an m you win the court clearly looked at what town country and you ruling in that same order he did not refuse to consider and he was annoyed he was aggravated but he looked at it and another reason that you can tell that he looked at it is because he came up with a theory that nobody else had come up with which was this next you were ten countr something the judge came up with on his own how could he come up with that and less he read the law that was in front of them if he read the law and it wasn't very much it was right there i mean that's one of the reasons i think the judge had a chance to get it right because we saw this as a grocery store and they have a small amount of seating the tenant before us was a retail occupancy a grocery store is a retail occupancy therefore nobody would expect this to be a change  they had less than fifty customers and he's referring here to the small seating area that they would have been required to do the seismic upgrades that they complained of so you have an unlikely fact you have a direct challenge the unlikely likely fact it is true that town country over t they try to say not only there is no evidence but we're going to take a run at hitting the home run here of showing that they actually changed their plans to a large restaurant that was more than they needed to do they didn't accomplish that but if i can analogize it to what a defendant does under seal attacks you've got two choices you can show that there's a lack of evidence or you can affirmatively know that negate a fact that's the level of what a nonmoving party needs to do to say there's no evidence clearly last and what a moving party would need to do ok town country tried to do both they tried to say there's no evidence and they tried to say we can also affirmatively show that they changed they failed on point two but the fact remains that the challenge was out there we don't think the evidence shows that the city of palo alto took an act that would treat this as a grocery store at the restaurant it's not common sense that a grocery store would be treated as a restaurant it's not a law that a grocery store would be treated as a restaurant so those things alone should put the judge on notice that he ought to look carefully at what he's got in front of him and then there's this don't ration you've got it and i understand and instead of having him say my analysis of that unfortunately that's just had to be in any he doesn't say that he said two years ago i wrote a letter to my client saying this and the client said two years ago i got another letter from my architect saying this but as you vouch for this under oath no i mean i think the first time i read this before i knew anything about that you see i looked through and said there is something wrong with this declaration so i think the judge w on notice that he had to take a close look what do you find when you take a close look ten countries saying there's nothing in here that shows that the that the alto would have treated a grocery store like a restaurant it's there there are full declarations but when you look at it you know you can't ever put that together you have a comment but you can't tell what the comment was based on the plans that seem to be consistent with the party the court itself in its order in one of them the architect treats this as a misunderstanding and so we're going to get back to the city and clarify that we have not changed our occupancy same day he writes to his client and says the city will make a actually made a determination based on these original plans that a grocery store with a restaurant seems unlikely or that under the law this use should have been categorized categorized as a type a and that's  that's not in the coat the most natural way it should be categorized as a major occupancy with a small included accessory to be occupancy which makes the whole thing treated as an am not a very straightforward analysis that there had been no final determination so i think that say it's possible he said it shall be upgraded and that was before the judge came up on when the monastery makes determinations of this kind are we relying on oral advice from the from the from the study engineer or got to that so did i take the time to go and find out whether what would the next step would be no and i didn't because i read there but this is this all has to do with with with with what's going through best as mine at the time to think that the that the court can we take that for some planning commission or board and appeal that i think the best i can say is i think then it's when they read e r forty four where the inspector said the building shall be upgraded seismically to the latest code i think that to them was was the end of the ballgame with the inspectors writing that they can they can challenge it but i think they looked at that but you know you don't really know what the process what we don't even know for example whether whether process and for issues like that to possibly be raised because they didn't raise before we had no reason to use it to do that we put in what we thought was adequate evidence that i determination had been made and it wasn't challenged it wasn't even questioned and it and in fact the last quote that i want to read you which i think will explain why i can't give you a better answer comes from the briefs that was filed in opposition to the summary judgment motion where i think they deal with th occurred is that the defendants six months after entering the lease unilaterally and voluntarily elected to increase the speeding from a small amount to as much as two hundred people and this ran a alto city planning and building department which then required i say that again which then required seismic and other modifications to the lease premises to accommodate this increased occupancy load so there was sponsor was we're right it's required we're going to have to make seismic modifications and they chose to argue the reason this happened is if you guys change your plans and that was the issue we never got to the issue of gee can we do something else because both sides walked in the court and said this is what the city is requiring i would submit that the evidence before the court especially when you consider that counsel conceded it was required was more than enough for the court to make the decision that it needed to make in order to to grant a summary judgment country has has come in with with many arguments since then and they say gee isn't it it's after what's happening here because look at all these other arguments we think that that with you look at all these other arguments the only if there was all to start to give us discovery who doesn't designate any expert witnesses who walks into court with a theory that is clearly incorrect on the facts and he gave them a chance to come in and see if they can find anything on the code which not fair that we should lose because there's a lot about the theory that had we done some discovery and had we gotten an expert we could have presented on that day in court that that that wouldn't be fair at all if you were to make a decision based on what they could or should i might have done based on what they did do what was before the court and i would submit that that the court had had and sufficient evidence to make the rule you did any questions and he was trying so much every time and then mr klein made about why there had been an actual determination by how well the based on the original plan goes back to the max a very april ninth comment that came before there was any indication ever had the original plans point one quite true judge by be asked about what would be the next steps and took actually farther than we've ever taken it in terms of administrative hearings and appeal we didn't take it any farther than that because there was clearly a next step even at the informal at the at the city they thought it happened and so they were they were pursuing that it's clear that even it didn't really matter where it was in the process if that was the market changed its plans to a large restaurant you didn't matter of files in the carman case we're talking about eight to nine inches when you squish them together in this case i tried pushing them together and i don't think i came up to an eighth of an inch in the in the case we were talking about six hundred  sixty pages here we're talking i looked at every page that was actually cited and eliminating duplicate getting full credit for every single time the max to bury memo was in there i came up with twenty two pages only one of which  is not too much to ask if a court is clearly under the law under under the burden to take a close look when somebody doesn't show up at all and it's clearly the law that i mean mr klein is this has argued as if we're still in a place where we penalize people for not showing up and it's a bad strategy no question about it but the law of this circuit is clear even if you don't show up the judge has the obligation to take a critical look at the things that are specifically in front of him here the very things that he not only was specifically cited to him but he even quoted in his order are the very things that we are able to rely on now to show that the market did not meet its burden and for that reason