title to somehow preempt state law claims for contractual indemnity we believe that applying basic principles of prion preemption that these claims are not preempted i and that the district court erred in finding preemption this case based i think on a line of authority that has kind of gone off the rails in terms of preemption alice in general counsel we're a member of the four circuit case but let's talk about some basic principles here  one of the arguments that the four circuit case makes it suggests that a complete indemnity as opposed to a contribution basically lets the obligated party under the i off the hook so i would ask you in this particular case given the contract or contracts in question if you're successful in getting the contractors to pay  contribution what is the city left with in terms of responsibility and liability under the well first of all the city is ultimately responsible the plaintiff in the first entry instance as we point out i mean the plaintiff the person who needs age and if you want to offload a portion of it to the people that you believe caused the problem for a player to comply with the what portion of the hundred percent would you be left with for the city is responsible for it if a contract with someone is a designer or a contractor we are always liable these would be them for our own fault i'm trying to get a percentage in mind in other words you're talking about just a theoretical overall responsibility or you're saying well  these people involved but they only handle sixty percent of it and we were stuck with the balance you could have absolute absolutely or they could say that look we told you we weren't sure this was compliant you needed to inspect you didn't inspect and that's what gets fought out in the state court l that let's say bathrooms whatever it is the bathrooms along a line and that you contend that one hundred percent of the failure to comply with the a t f is the responsibility of contractors would that be sufficient to avoid any kind of preemption here because you just how i pathetically have the overall responsibility i think i think it still would because i don't think it stands as an obstacle to congressional purposes for two reasons the first is again we're always liable in the first instance to the plaintiffs they get damages they get the injunction believe that we have to fix it we're alternately responsible the second part is if the larger congressional purpose is to make sure that you have compliant facilities that interest is served by us allowing to hold the people that ultimately have to provide that i mean we're not in the building business we're in the public entity business we by nature have to rely on other people who are experts to bring us continue to do compliant facilities and so if you want those built correctly in the first instance you have to hold those contractors potentially liable for their own fault otherwise they have effect you can't comply with the law anyway because you couldn't build anything because you don't know how to do it you have to contract out to other people to do when you contract contract after you have no assurance no stick over the people you contract now that you're going to get the compliance facilities that bad that's correct and i guess i want to shift the emphasis just a little bit i'm trying to if you will make our law like the four circuits it seems to premises owned by m and manager fiat by relinquish seeing the responsibility preventing the discrimination to another party and then having said that they said so no  way to cause another party to pay that's the way it is all of those clauses on preemption if i apply that to this case we're  get so i think we still have our claims for a contribution under the california statutes which again always make us was sponsible it just for another in the fourth circuit one could have argued contribution but the problem was that in that case the owner wanted to shift all responsibility to the architect the owner wanted to do everything is much is say ok pay up and the fourth circuit says no don't pay up it's not something you can do here the owner is responsible because that's what the a da wanted to happen well in the in the fourth circuit case from within the they tried to bring a i've got out sure your complaint every indication in this record suggests that the extent that the appellate own actions give rise to liability is one hundred percent which is the same result as equal rights so then why shouldn't i dismiss the complaint because i mean if i read your complaint and i'm just reading what you said in your complaint i'm trying to say what civil code provisions that we saw the talk about indemnification agreements between public entities and public contracting with contractors and with designers make it clear that when you're talking indemnity in california you're never relieved of your own fault there's always an allocation you can require the people you contract with to be responsible for their fault and so the couched indemnity terms in a california law is qualified by in that context you don't necessarily in your complaint that's how you're getting out of what we're required if we go to stay corp that the civil code provisions reply they've they provide the scope of indemnity under california law whatever our agreement is with the contractor and with the designer in that case we can i think independent ryding center is dead wrong in its analysis of preemption i mean the court first says that preemption does not apply to disability discrimination statutes and i think that's just dead wrong the supreme court has said m times that the presumption against preemption applies in every case however it applies with particular force in those areas in which the states have traditionally legislated and i think there's another error and saying hey the states haven't legislate in the area of disability discrimination i think that's not really tenable in light of that i mean the supreme court i think recognized in the garrett case and it's cited a congressman who said the states were way ahead of the federal government in legislating with respect to disability discrimination and i think we know that california had disability discrimination statutes going back at least one thousand nine hundred seventy six maybe earlier and so the presumption is that congress knows this is an area in which the state's legislature i mean i can want contribution you want a hundred percent reimbursement for any judgment as to give you in this case and that seems to me doesn't have a contribution effort in it that's my worry in trying to make the four circuit case apply equally in our circuit so we don't have the supreme court thinking about this no i  take the court's point on on that all i'm saying is that whatever the state claims are what we're asking for they're governed by state law and state law are those two civil code provisions that say when we get to duke it out in state court each side's going to be arguing what you may still be in but it didn't seem to me that's what you want under the complaint you filed well i think the point remains you say you wanted contribution to the point you file we said we want  on you know it didn't seem to be you'd read baker watch the bill we got to this case and now you're coming up with a resurrection which doesn't help your complaint well but you know even if that's true the case complaints capable to state a claim under state law are to more refined th involved in the construction projects that are the subject of the suit now there are various other defendants so if if you have a project and you have hypothetically you have one hundred contractors and use to five of  for indemnity in the reality is under contribution law you're asking for a contribution because you can't get from five and a damn day for what everybody did correct you're simply asking these folks based on your claim they failed in their portion of the contract not the whole thing but it's an indemnity from them but in technical terms it is a contribution in light of the entire project the idea you want to be sure that somebody is responsible to be sure in this case the city is responsible and the fact that you could hold or try to hold a contractor or contractors who did not do what you said they had agreed to does not in any way lift off the burden that you have or the role of other contractors whoever that is correct ok that is correct and could you also refer your complaint is based on the contract co write and the contract i'm looking at the language it seems to be more contribution like language then and then he type language because it talks about to the extent that the third party defendants are liable they have to reimburse the city of los angeles correct i you're standing what he said i'll let you man and but it can't deal with this indemnification that and so i don't know that there was a way for you to say i want to a man for that because he just said no yes but but he was interpreting the cases we have in front of us and trying to see whether it worked and he said they didn't want anything but indemnification i'm not let them have i just want to make sure i understood the will go back much i can promise you that we've tried to divide it up appropriately but i'm going to address a couple of the issues that were first raised by council the reason that they never brought a state law claim or amended their lawsuit or tempted to file a claim in state court for anything unrelated to indemnity is because this project was completed in two thousand and five and on the basis of the record there was no statute of limitations ability for them to file any further claim there was no statute of limitations ability for them to follow a claim on the primary contract violations if any were dod the city of los angeles is a complex energy with building department and they build hundreds of buildings project infrastructure they are not some independent living the fact remains that there was no way they could have filed a primary contract claim and in fact the allegations if you look at the complaint about handrails ramps things that were open in the tour areas that the city could h weeds and i get your point but it seems to me the question here is a threshold question and that is is there an ability on the part of a city in this case to bring a claim for what california would go contribution slash not offload the responsibility of the city in this case if they're permitted again hypothetically to go after the people who perform the work so setting aside the statue of limitations question for a minute if there are more contractors involved and i don't know whether or not he said there were but say there were ten all together hundred whatever and the and the city sues three four five in what way is the city if you will relieved of its responsibilities under the eighty eight by being able to bring a lawsuit against the contractors let's just talking reality for a second what happens in these kind of cases is they bring a case then the contractor brings the case against all sentially reaffirmed greatly amended in two thousand and eight it was voted on in di nine hundred ninety by four hundred three members of the democratic house seventy six members of the republican senate signed by republican predecessor president was a subcontractors right now they could have sued their construction managers i could have sued any number of other people i just want to make sure i understood which but but but what i was meant but even even if that's true the studio city still gets sued by people who say they don't have access we have a case in san francisco right now dealing with all kinds of streets and roads and highways involving a variety maybe hundreds of potential contractors but the city gets sued and at the city of los angeles gets sued it doesn't matter who the contractor is or whether the statue of limitations has run if it's just it's not functioning if the people in a wheelchair or something can't get access the city page it's not relieved in any way if it's a v a responsibility by being able is handrails there for a hundred years they get sued they can't show you there's such a limitation is right i would argue to you that congress is intent was to put the onus on the owner operator to keep their property maintain within the a t f and if they wanted to they could have right if the project was completed before they returned the retention funds before they closed up the contractor had their building department inspect the property make sure it was up to the standards that they wanted that was their obligation it was their obligation to maintain it for the last ten years they failed to do so allegedly they were sued they had it up suddenly the case if they were allowed to turn around and recollect the money back from my clients or polly's client they have no risk why would they ever have to maintain the property why do they care whether the not well it turns out it would turn on who is responsible for the violation if the violation arose from a failure to upkeep then the city would try and collect from you and you'd win because it would be the city's fault or that if the violation arose from the initial design then maybe the city wants therefore if the violation arises in part from the original design and in part from the family failure to upkeep the city would win half and your client would have to pay and i would argue under the northwest case the congress could have provided that right if they wanted to but they didn't they explicitly did not put that in the statute who cares congress to provide that right but congress allowed for state law to also operate in state law provides it has the supreme court of the united states has taught us that northwest that we shouldn't read into the a d a s or any comprehensive stat that's not the city's argument the city is not making an occasion right under the a t m or the rehab act the city is basing its cause of action against your clients and counsels clients based on the contract primarily but not exclusively and to the extent that yes i think you need to think about his question because i think that if you read your contract you're not going to and this city on anything this city did that's not true that's that's what the contrary i contract is if your contract with them is you're going to  honor and i would say my contract is a little bit different than council's contract because my contract has the language which is twelve point zero says that we will hold the city harmless from any and all costs liabilities damages or expense except for the sole negligence and willful misconduct of the city and under that language if we're one percent responsible we're one hundred percent responsible doesn't have the contribution language that perhaps the architects contract  language you're citing the part that says except for the city so no sole negligence but you're missing the park that ties the liability of your client to damages that are sustained is the proximate result of what your client did so you're not responsible for what anybody else does your clients just responsible for what your line is while there is an or there so it says also sustained in any property including the property the contractor or if  macaulay appearing on behalf of a com the first thing i would like to address is the concern about an d m d versus contribution this is not and can never be construed as a contribution claim not only is it not played that way not only was negligent in my case the language is somewhat in big us but i am confident that the city will maintain that even a one percent finding of fault or triggering a vet is sufficient to correctly if something falls off somebody falls somebody has trouble navigating something the city is liable under the age the question is whether the city basically when it contracts with somebody has to just say you know what it doesn't matter what kind of job they do we can't sue them because of the a da some people are reading this for circuit case that way so let's just say hypothetically and i know you guys would never do this but let's just say that you did a terrible job you into just  terrible job everything it led to a d a was completely wrong under your analysis they couldn't sue you because of your analysis of the force or case that's nonsense how can that possibly be what congress intended that is not our contention  what you are contention is you're the owner you're the occupier you have an immediate obligation to ensure on a strict liability basis that this meets the requirement for ten years you've been in possession you're the person th best person able to know what's going on and that's what you meant for the city is it not because of course the city is responsible for maintaining it and if they don't do it then there is ponselle that you're not response with the city's mission is clear we contract and have a design and built your one hundred percent at fault because we told you to build it and design it that way so therefore by definition one hundred percent of their fall is sought to be shifted there's no ifs ands or buts about that it is an attempt it would it is objective of the statute is to ensure that it is had to be determined as it was in the perfect position to do so that there were issues it could have brought a state law in state court claim for breach of contract or anything else subject to the bring in as a third party claim under the supplemental jurisdiction in federal court well your honor that raises the whole issue all the metastases ition of this case into a wholly ungodly mess when you stead of having one eighty eight billion religious claim unpalatable when clearly in violation of what the congress intended to happen let me ask you to follow up on that there is of course as you gentlemen know the presumption against preemption that does that ongoing princip doesn't that apply to title two and section five zero four well the presumption does apply it is one of a number of guiding principles that are examined in doing a preemption analysis but as with every rebuttable presumption it is subordinate to the intent of congress it is subordinate to a conflict preemption analysis does this perform does this provide an obstacle to gentlemen really are good lawyers and we do appreciate that i don't have much to add beyond what i said before and i think i have pretty much exhausted my time the i think would say in terms of adding complexity to litigation the reality is if you know what happened lawyers it helps us with the side the case and as you well know what we say orally doesn't necessarily mean much of anything as our spouses occasionally remind us thank you very much