concerns the question of whether or not there was a duty by just than in southwest airlines to warn plaintiffs of some form and that was approximately one foot away from the ropes where the passengers lined up in front of southwest and the reason i say that one of the easier cases because when it is a diversity case so this court has to apply the supreme court course they were cited with approval in discussing al caress is the key case another reason why this case is that one of the easier cases on a calendar is because the question of duty got the fact that we have the bomb and exactly well approximately one foot away from the roofs that's a factual question that's a factual issue that's been found by the court we have the for actually finding that southwest from time to time with cleanup spills in from southwest airlines then that's something i think the courts should be able to consider is an undisputed fact in the making its ruling as a matter of law but i don't see anywhere that southwest admits that it exercise and making a finding as to that area was not one that southwest airlines controlled and your thing is a matter of law based on these facts that he's wrong fourteen no such exception should be made unless clearly supported by public policy a departure from this fundamental principle involved a balancing of a number of considerations and that is the rol cite california court of civil procedure section six thirty one and and that was how it existed back at the time when the case was removed recognizing that sooner but the statute was an amended and two thousand to it was non controversial and then it was suggested i believe by the judicial council looking at the amended version want the court to focus on again going back to rule eighty one see the federal rules if in the state there is no express them in requirement for a jury then you don't need to meet one one as well but the issue i want the court to focus on is expressed in the answer versus expressed waivers and if you look at the constitution and look at california section five ninety two which again was not cited by the ninth circuit in any opinion i'm aware of and six thirty one particularly as a member of it makes it very clear that when an action is filed you honestly have the jury announce that a jury is required after a time the cause is first set for trial so if you take a look at the time period for removal you file the complaint you automatically have the jury at that point  district court erred in finding the pathless did not control the area where the incident occurred while the existence of the duty is a question of law the determination of whether independent controlled an area in question is a quote it will be for the trier of fact to decide based upon the evidence received at trial whether defendants actually exercised such control that's up to resit page eleven seventy one here that this court properly interpreted the case law on the legal question of when a duty arises a duty arises if you only lease or control the property the sole me issue is whether the district court properly determine and southwest confirmed that there can be no basis for liability unless the quest own least or control the area where the incident occurred the our case the case relied upon heavily by appellant stands for the proposition that a defendant alcatraz prior to and at the time of the incident the finance maintains the lawn in front of their side walk from the from that apartment building all the way up to the side walk including the strip record lead the credibility of the witnesses and chose to accept the testimony of harbor police officer jason adams regarding the location of the vomit after adams testified that the vomit was nineteen feet away from south counter that it was outside of the area roped off for southwest passengers and critically that it was in a common walkway used by passengers of other airlines an area where a member of the public could walk in off the street and walk appellant presented no evidence that southwest naething that area that's you presented evidence that southwest due to changing only clean up spills in front of their ticket counter but there was no evidence that the southwest plane that spills beyond the eleven strong argument here that if under california law a jury trial is preserved inviolate and in the end the presumption it is is the flip side of the federal practice why can't they state practitioner rely upon that provision since our own rule eighty one species seems to recognize constitution's preservation of the right to a jury trial and here the same is true you have a right and right to exist and right can do you need and the right to jury trial is a right like other rights like the fifth amendment right or others that can be la an express demand then of course you had to have made it in state court the question i have th is six thirty one d for the it and express demand rule really a waiver rule because that's the way it's set up in the framework of the california statute i think not your honor i think it's an express it's an expressed in and is required within the first thirty days of trial it doesn't say anything expressed in the end is required prior to the time that you would remove the action it because it's an express demand is required then you have to make it in federal court distinctions given the timing of lewis and the fact that it doesn't mention the constitution and so a lot of points you address that those are those are really separate issues the the espresso waiver issue is one and the constitutional right to jury trial issue i think chandler addresses that within the context of the federal constitution and it's analogous to the california constitution i don't believe that there is a case that addresses the right to jury trial under the california preparation of the pretrial order which was in september of two thousand a year later and there are cases one thirty cases where people you know forward and said i want to jury trial within ten days and eighteen days on the one it was twenty is on the theory that somehow loise has been overtaken by amendments to the state of california statute and i don't think any of the amendments and anything have any relevance to that part of the lewis case which to georgia in my final fifteen seconds i would just say on the issue of control you don't need total control or exclusive just limited or some controls that they should the supreme court found even a light shined on the sidewalk  control for duty purposes and finally with respect to the first issue i would direct the court to judge moskowitz so that if you want to preserve the measurements taken on that date for the purposes of appeal feel free to do so this is on the record on peach one seventy which is what i've done and that clearly shows that the ropes on the day we measured it