stated then this accords decision and i quote the convenience store entrance had a non compliant door landing in the form of a narrow slab of concrete that's in the record them page twenty six if the court would like to look at the photograph it's attached in the record this page one forty one of that condition the issue presented here on the appeal is rather straightforward should miss hernandez be denied recovery of provided under california under a civil rights act damages for what happened that day because defendant violation cannot be used to support the on the a claim for damages in fact that this a court made this fine acknowledged once but twice the first time it was found in response to the motion for s counsel makes a lot of the fact that there was this stipulation dismiss and i have to say was very confusing trying to figure out what actually happened in this case i understand the issue presented i have some questions for opposing counsel there's the grow case and the itin case i the legal issue i understand but i'd like just some clarification on how we got there there's the stipulation in this case and who who drafted the stipulation to dismiss was not a joint effort yes it because as i read that stipulation and i'm referring to s t r to there's the word of the claims claims from eleven and are dismissed what what what is your reading your understanding from the stipulation what claims are being dismissed is it the various legal theories is it the size is it the slope what are we talking about the only barrier that has not be in personally encountered and so for you to prevail before us if i'm correct you have to convince us that the district court granted summary judgment on the size portion of the landing correct correct the in this stipulation that you on the referred to was the slope of the landing so i'm with you all the way i see why you say that what puzzles me is why doesn't the stipulation simply say that we are dismissing eleven and as it applies to the slope the court granted summary judgment on eleven and as to the size why if it said that then i don't think we would be in this kind of alice in wonderland situation that we're in right now as to what this all means i wish it was more specific and it wasn't however if the record this ticket as a whole and all the findings and the evidence that was presented  are you aware of any state law cases that would help us on this issue because i know you have some difficult cases that you've cited in your in your papers any other authority you can point to us to resolve that issue violation of the da a predicate violation for the california civil rights act and does not require that's what the court found there's no requirement of  e for the damages claim under that code section that your best case for state law would be the months in case yes ok we're not arguing that damages under california under a civil rights act if there is no lease and require intentional discrimination and proof of intentional discrimination however here there was a violation of a da simply mediated but there was one in the district court concluded that the unruh action loses because there's been remediate let's say we disagree with that what what's the next step in this case what do we do well the then as a matter of law she would be entitled to statutory damages to four thousand dollars but this report did not address that issue correct this is a court refused to address this issue however there is a stipulation in the record that attempted to gain access to the convenience store to purchase something sweet but was unable to get inside because there was insufficient maneuvering space on the narrow sidewalk floating fronting the entrance good morning your honors me please the court i make in childers who represent the defendant in this case blago enterprises i don't want to waste the court's time kind of regurgitating what i've i understand your position why is it you believe that the claim for statutory damages is out of the case because of this court's prior rowlings which which have held that when injunctive relief i doesn't speak to the state law claim for damages right but you can't get your damages on your state law claiming to use first find that there was a state law violation and it or there's that finding was made and your client fixed the problem afterwards that doesn't mean there hadn't been a violation at the time the barrier was encountered well there doesn't there there wasn't a finding that that there would be i mean your client doesn't seem likely to contest it your client realized there was a problem and change this change there remove the barrier but that might be to be contested but i'm not sure how how fixing the problem later means the injury wasn't suffered in the first instance and i don't think the oliver case says that it did there's not an eighty eight claim anymore purposes been the the fact that a problem is fixed doesn't mean that it didn't exist at the time the barrier was encountered by plaintive so i don't understand the logic of saying that claim is moot give me the logic separate from the cases which i haven't found to say what you're saying they're saying what's the logic in saying the barrier that she encountered for which he's entitled to a plane for statutory damages the fact that it was removed later how does that change the fact that she encountered it when she tried to enter the store the logic is that the is different it does provide for statutory damages correct your honor so what suggests the legislature meant to say ok we're providing for statutory damages but your liability goes away if you later fix the problem isn't that what you're now advocating that is what i'm advocating because that has been that's how these cases have been treated and that has been the law that it says because the cases you've cited me don't speak to under a act damages they speak too injunctive relief that it's perfectly natural to say there's no longer a claim for injunctive relief of the problems been fixed but it doesn't explain why there's not a claim for statutory damages for having encountered the barrier in the first place the way we get there is because the is that your position correct and i gotta tell you i have a hard time seeing there because the district court failed to identify this is a true as an issue for fact or rather is an issue for trial the trial at that point was limited included both the slope and the dimensions of the entrance landing were left for trial so both her eighty eight claims and her damages claims under unruh were left for trial well i look at what the district court said and it seemed to speak in very broad terms saying that the claims that were mooted were no longer around and claims that were mooted included the the the size of the landing that suit soon to be the slope he she was the only thing left can you point me to anything that suggests proper sixty inch by sixteen and sixty inch a plan b and were not provided that that included the slope issue as well that by even though the dimensions had been  not proper because the slope was off so paragraph the plaintiff the plaintiff was the one that arc that demanded in the court agreed that by proper landy and that included the slope and the dimension was clearly still open chris i've correctly with you there but what tells us that the landing size issue is open because when i see the the court saying in its pretrial order number one when the pla tried to bring back its argument that they had done a violation prior to remediation the order says it is aug twenty three order this court granted defendant's motion for summary judgment with respect to the claims based on thirty eight remediated barriers in doing so the court dismissed plain his claims based on those barriers this dismissal expressly applied to plait of state and or of other federal and state claims plaintiff's attempts to revive the state claims it seems to me that the district court is is closing the door and saying that door is shut with regard to a state claim with regard to the remediated barriers do you read that differently that the court it was saying that and the only barrier that the pla scott received damages for was a barrier that she personally encountered and that was the landing barrier so the thirty eight other claims that had been that the judge granted judgment and then at the final sentence of the paragraph with respect to the door landing there's a tribal issues as to the slope of the landing so you you go to that that's what you rely on is that it and then you suggest that that venue settled that or that was stipulated away and in the in the stipulation but the pretrial order somewhat inconsistent with that because it seems to split eleven and into two parts  when what i understood the judge to be the district court to be addressing and it's pretrial order what was was what appeared to both me and i believe the district court to be an attempt by the plaintiff to try to receive statutory damages under unruh for the remediate all of the other remediated barriers that were still not left for trial at that time and although i think the the judge is with the district courts best argument or best way of addressing this would have said you wouldn't be entitled to those damages for those barriers anyway because you didn't personally encounter them well if there's no discussion of right but the court had been found to put with respect to bury them the entrance landing barrier which the court found included both the dimensions and the slope the court denied to both parties summary judgments as to that barrier because the court said that i cannot find that this is a proper sixty inch by sixty inch landing because we have this issue regarding the slope so both issues are still left for trial the court did not and it's clear from the court's m s j order that the writes with respect to the door landing there was a tribal issue as to the slope of the landing not as to size and slope just slope so how can we say size and slope are still alive when or she has just slope but in the previously in the order to discuss how that the entrance landing barrier paragraph eleven and that fact that allegation contained in the  types of claims are or why and the answer was she found yes then as i read this she's then saying with respect to the door landing the only thing left is the slope size has been remedial now whether her legal analysis of the unruh act was correct i something we have to decide but i don't see how you get around that sentence on page thirty of the excerpts of record i think that the court was saying in paragraph three of the order that the entire the entire paragraph eleven and is left for trial and the reason is because there is still an issue regarding the slope i  know for the court that nowhere else in the order does the court grant summary judgment on the dimensions of the atlantean entrance to two defendant so the was an attempt to avoid going to trial on it and trying to get damages kind of through the back door by appealing this decision with that you know i don't know what i really don't know when i saw it and they presented the stipulation to me and asked me to sign it i was completely perplexed has no other questions i will step down thank you   provided sufficient notice was provided in terms of eleven and if you look at the complaint the legations the paragraph ten and ten he is the only  element and the only paragraph in the complaint that states this is the barrier that ms hernandez personally encountered all the allegations and if paragraph eleven refer to barriers that were subsequently discovered in the access to the gas station that caused her difficulty discomfort in the various men specifically that she could not enter the guest station convenience store because of their alleged barrier there was no issue over about the slope of u created which was a slope of eleven and and that was the remaining yes you that was dismissed and that was that i think you're on the amount of time thank you for your time and a