thank you don so you just heard a case that was i believe quite narrow in the issues and that those issues are also discussed and  our case but they're not really critical to the court's resolution of our case basically i don't know if mr whisky would agree with me but basically have a settlement agreement in forcible by the court in this case and the question is  and i think that one of the reasons that we have a settlement agreement maybe is to avoid the issues that come up with summary judgment motions and the time and expense of summary judgment motions but here we have basically a question of whether the district court properly determined that the plaintiff was not entitled to any attorney's fees and i think we need to keep in mind when we address that issue that there are several attorney's fees provisions involved here there's the eighty eight tourney speed provision and there are three state court attorneys the provisions whether he had standing for attorney's fees because that's really the basis of the primary basis that the appellate court denied the the attorneys for the motion and actually raised it for the first time at the oral hearing nobody had ever argued that the second issue is even if this court term is that there was no injury and therefore that the district court was correct that there was no injury supporting a lot of attorney's fees the second question you would have to decide is whether there was something the court has or doesn't have the if the court had no jurisdiction because of lack of standing to proceed under the federal law then can the parties agree to give the court's jurisdiction the rule that you have to have jurisdiction in order to award a tourney cities and that was mentioned in the last case that if they if they start provides an independent grant of jurisdiction for attorney's fees not an independent grant do whatever they want and doesn't give the federal district court jurisdiction your honor in this case in this case the basis for the federal court jurisdiction in the first instance is the americans with disabilities act but under the rule of supplemental jurisdiction which this which the district court exercised that it determined that plaintiff was going to the able to bring a motion for attorney's fees under the federal and state court statutes it did not if exercise discretion not to to grant that supplemental jurisdiction so i think that the district court and this court also has to determine whether under the under the settlement agreement and under barrios and all those cases whether the plaintiff has a right for attorney's fees under not only the a b a but also the state court sta district court said you have no jurisdiction to bring this here how can a grand supplemental supplemental means in addition to our jurisdiction we have something more how can you do that i think that  i think my brief mentions this case i think it's wanderers this process in which the court determined yes the court the district court even if they determine that they don't have jurisdiction for the federal court eight they can in their discretion exercise supplemental jurisdiction on the state statutes and by the way the state statutes incorporate the americans with disabilities act provisions into the state statutes which make the violation of the a b a a violation of the state statutes as well so think it like to get back to the first issue which is the standing issue and with respect to whether there was standing under the a b a or in the the state laws i think that there definitely is standing because the question the question really is what standard do you apply when there's a court and forcible settlement agreement first of stansell injunctive relief and damages do you apply what pleadings standards are which is just basically general notice of the out factual you know allegations or you have to provide evidence as you would in a summary judgment situation it seems to me that the courts have decided this issue in a can and barrios richards and fisher cases by their holding that a plaintive who obtains a court and forcible settlement agreement which chip which changes the legal relationship of the parties in this case for substantial injunctive relief and damages is the prevailing party for attorney's fees and in order to have standing i believe pickering vs the quality case makes clear that if long as you encounter one the attorney's fees motion you certainly should not have to do and i don't believe the law is have to prove provide evidence as you would the summary judgment motion for a determination on the merits it's not a determination on the merits though and i don't want to go into it we also submit that we that the state of the record was because of the discovery in the answers in iraq of tory's and disclosing the expert's report we did provide evidence in support of the motion and even if you applied the more stringent test for standing in the summary judgment situation which is actual evidence and proof that standing because the defendant also argued that we didn't provide fair notice that goes back to this pleading issue which i think is really the standard that you have to apply to this case as to whether they're standing and combining it the who can and various fisher and richards decisions that if you have a court enforceable settlement agreement you're the prevailing party for purposes of attorney fees this case and the pilot in this case complaint did provide fair notice federal civil procedure points out shows that a complaint must include only a short and plain statement of cl showing at the pleaders and title to relief well we certainly did that we identified many barriers to access and if you look at in our brief we list all of the all of the pleadings which set forth that before i believe the court acknowledged and if it didn't i think that the law in those under that case that if you like one if you encounter one barrier to access and no more you have not at all is that not a dollar of the day not at all if you go back and look at what happened in the district court no one raised the question of standing as a bar to attorney species in that case in the briefing it came up for the first time without any it just out of nowhere for the first time on january twenty third one of the years that the court rendered it the allegation or in the complaint alleged that he was a night full and equal access at the hotel because it was not in his not properly accessible to person such as mr skaf use wheelchairs and guest room bathroom telephone elevator and signage that's on the are five and six he alleges defendant's actions and omissions to act constituted discrimination against him on the sole basis that he was physically disabled and unable because of the architectural barriers created and or maintained to use the hotel in its facilities on a full and equal basis as other persons it alleges the action omissions of defendant are continuing on a day to day basis and have the effect of wrongful excluding say that he did not allege that he encountered one barrier to access or more or that he didn't fulfill the requirements for police satisfied their notice in the pl i just don't see how that can you know be concluded from what was alleged in the complaint so i think that the that the district court is wrong something that there was no injury which would support there was no injury alleged which would support standing and therefore since there is no injury allege which would support standing at least one very the access and i don't think anybody was arguing that you don't have standing for that even in the last case they were just looking at what the scope of it was but if you encounter one barrier access you have standing and if you have standing  an injury then the district court improperly concluded that you that he didn't have standing and therefore if the court just record improperly concluded that he does have standing for an award of attorney fees we're not talking about amount we're talking about is he entitled to attorney's fees up until the day that the judge ruled in open court that there was no standing and that's what i was getting briefed and say no there's no notice requirement or the other issue that was being debated between us was did he have to make a pretty litigation attempt to settle that the cabalist requirement does not apply when you have a court enforceable settlement agreement which material up materially alters the legal relationship of the parties of the dispute between the parties between the counsel for the parties at the at the district court prior to being hit with the bombshell in oral argument that there was no standing nobody nobody raised the court as you say on its own and you can look at that and you should look at that whether one of the court is correct but i don't think that the fact that it wasn't briefed by us  the at the district court because nobody even considered that there was a standing except the judge but the judge considered that there wasn't standing contrary to the ninth circuit law in pickering so i really think that that there's no there's no doubt that there is an injury in fact an injury sufficient to support standing and since there's standing the district court was wrong in saying that there was no injury and therefore the no one no attorney's fees but going to the second point which is even if there was not jurisdiction because there was not an injury and injury even if the district court was right under the independent jurisdiction particularly of civil code of civil procedure section hundred to one point five which says in any action a successful party is entitle to attorney's fees if he shows that that was in the public interest basically that's that's the gist of it that's an independent grant for tourney's fees and i think that the reason for that is because in civil rights lawsuits such as this and other civil rights lawsuits in fact one of the cases is  six u s c seventy four thirty allows attorneys fees only in civil proceedings brought in connection with the determination collection or refund of any tax and brought in a court and brought in a court of the united states coalition procedure section one zero two one point five says upon a motion of court me award attorneys fees to successful party in any action which has resulted in the enforcement of an important right affecting the public interest if a significant to pursue a claim under the a da is not automatically entitled to his or her tourney speech simply because the defendant agreed to settle the case that as i think the court perceived that was what we perceived as and i wanted him to tell us what was wrong with it and he talked a lot and i guess he told us what he wanted us to know right i still do believe that the primary point that the appellant was making in his from settlement to the side and just focus on the a d a s complaint and why there isn't standing there and i direct your attention to paragraph pickering versus pier one imports the allegations in the complaint in that case were very similar to those in this case the plaintiff alleged problems with the with the doors furniture  it was on summary judgment but they said that if it wasn't played in the complaint those allegations in the complaint were not sufficient to satisfy of rule eight yeah but this is played in the complaint is just a question of   the allegations were were similar enough that the analogy is there and the and the basically the what the plaintiffs said here was before the complaint was filed he sent an e mail to the hotel and said there that it is critical to bring all these things to the attention of the defendant specifically so that they can be addressed before the complaint well this is like the standard here when the district  if if the plaintiff can't can't make the allegation the basic allegations to show standing and i'll get to some of the others in a minute but basically with regard to the specifics of the violations how should he be able to present those on on on a motion for summary judgment and why should we allow the case to drag on to that point before the defendants are made aware of  declaration was filed that he has anything in the in the pleadings about that my recollection is the only specific allegation and i think this is what the district judge believed also who was there the only next day and the plaintiff doesn't have standing to pursue a client based on something that's that's already been fixed or addressed prior to the complaint so that is not a concrete in particular rise farm also part thirty six appendix a c f r section nine point one point two requires at least three rolling showers in a building of the size of the hotel in this case and there were in fact the proper number of showers and i don't know if the court wants me to address to the state claims i think it would be appropriate in response to what the to what the plaintiff argued in oral argument and the california state law clearly allows judge's discretion always to determine who is the prevailing party the the judge has discretion to see if the person was a catalyst of benefit of the publi well the judge's comments i think the judge did say i believe he doesn't have authority i think he did state that that's true but i but again i think that the judge could have said that and we could reach the same result nobody said that there was a decision that was the basis for his decision right right but you said there was no standing and no jurisdiction of the court is no correct that's correct now at any time even on appeal the supreme court has said that courts can look at standing at any time so we believe that that was appropriate all right if there's no standing and there's no jurisdiction there's a court still have the no i don't believe that the plaintiff had standings ok if they don't have standing then they don't have jurisdiction is that correct that's correct where do you think this discretion is coming from that you're talking about the judge having discretion to grant this  maybe that was in artful on my point on my part i think that was i think i was taking a step further assuming that the court finds that what the judge did was wrong on the standing that that that the court would have this discussion to award that i because no barriers so why would that well he's missing a very important step in saying that that i intend to return there it's just it's missing a very intend to return because he's deterred but i just don't see that i think there's an important step missing there he never alleged that he intended to return there even in the pick versus holiday quality foods case the plaintiffs allege that this is  this is my favorite grocery store i would shop there if these barriers weren't there and and that i think was critical to that court's analysis and here i think it's just too general to say that i was deterred and i think it's return the fact that it was on at the pleading stage also in the pickering versus holiday holiday equality case in that case cited a case called moreno vs g m oil that said that there's no standing where the plaintiffs did not allege the think i think the court let me just take one look at a couple of quick responses to what what the plaintiff said in his oral argument the the independent sort of granted jurisdiction based on the last case again that was thank you very much for your argument the case