that was you know of the deal by the number the sheer number of actions in which you and your client filed lawsuits talking the same problems with respect to this same defendant is it your position that you went to each of those other establishments as a as a customer as a as opposed to in your capacity as a whole yes it was my assertion that i bring there as a cost to investigate potential disability access violations at those places i don't think that the two are mutually exclusive i think that i went there with the intent to use it in the parking lot itself or the business as a customer or whatever yes i mean they're just businesses in the community i have needs to get my car serviced or you know utilize the business as a customer and while i'm the investigating my clients claims i want to use the services as well and i was on to let me ask you this if you had indicated in the state court complaint and the federal court complaint was filed st if you had indicated in the state court complaint that the  m m i would think it would but i'm not sure i think the more you know more used and more recognizable aviate claim is as a customer and i was there as a customer so i you file your claim in federal court is my question when i found my current affair because i did you file your claim in a different court from the from the court you filed your clients who want to stand out if you are going to basically attack the same defendant in the same practices why more it fits him better to be filing in federal or whereas i don't file as many claims and it makes sense for me to file in state court and not i and you're already in federal court against the same defendant for the same practices why would you bring your claim you know different court i don't understand that and i and might my answer is one reason is that the high frequency litigant requirements are more stringent in filing in state court and my client doesn't necessarily have to get in with the you i'm talking about your personal claim that you are going to file for rossetti on your own behalf and has nothing to do with any restrictions in st overtime to that's what motivated the magistrate judge's order and i'm trying to get you to explain to me why is that and that's the same impression i have yeah is that correct i just i don't see the i see it as a choice that i made that was open to my client and myself it wasn't intended to deceive but i think i was more suited for state court and his book give me the why i am telling it and the main reason is the h don't understand the question i'd like ok let me put it in these terms you are you have made the decision because it suits your client's interests to quality federal court i get that that makes perfect sense you're saying that he has some issues in state court and it's easier for him to f record so you file the action on his behalf in federal court all i'm saying is that ok you are now in federal court or you know why don't you file in federal court for your own plea because i prefer to be in state court like i  think that there are better equipped to maybe deal with the issue of me being an attorney and also going there as a client  negotiated a settlement to both cases without putting yourself in a conflict of interest situation i'm sure yes soon after finally my pro se complaint i sought representation to represent issue also is that it was never clear it was never true that my does it was some adverse effect on the ability of the parties to obtain a fair trial he doesn't say that the order says that it's for dishonest deceitful and fraudulent conduct based on facts admitted by mister bentley that's what it says so let me ask you this you responded there was no notice and you and you filed objections has there been any opportunity to have a hearing where you'd have an opportunity to to explain what your intent was and why you did what you did not at all you know i can certainly understand why this raised eyebrows and i with judge watford to say that there were you know there are sixteen examples of this it does look like a scheme or practice and it certainly raises the i found it in the actual order right and you jumped ahead to anticipate another question about the disconnect between the order to show cause the reasons given there and then the reasons that that came out so my understanding of the of the sequence is that both counsel submitted submit some kind of submissions but under seal to prepare for a resolution and then in response to those the judge said you don't know what the other team told the judge and then in the response you got an order to show cause we've got that so we know that the judge had ethical concerns and concerns of the rules of professional responsibility have been violated although it's pretty fuzzy about why that might have been and then you both responded and when you responded you exchanged those you do know what opposing counsel said at that time yes right and then we got this finding but no hearing is that right ok and did you ask for a hearing yes i did i requested it from ok am i also correct that this was referred to the state bar yes the  disqualifying me also ordered a disciplinary hearing that yet because a future actions and rick is there any reason you would be a witness to your clients   and that's who he wants to represent them so if prevented from representing him then he will you know you without his choice of counsel and i'm the one that purse connect in mice filings and my client's filings there was no opportunity for me to present evidence about my intent when visiting these so i don't think that was weighed at all by either the nih distrait or the district court judge in their decision to me it seemed like they had made up the decision that this pattern was obviously  claims for discrimination face during completing of their you know drooling legends that they would see the same sort of treatment from you know the district court judge in this situation and prevented based on you know that might be exactly the right answer if they're not going there to avail themselves of the services of the business or that's one of the point of wofford earlier question where he and i were  it also may be less than candid if the reason you're really there is doing your homework and not trying to access the goods or services offered by the business and i don't i don't see the reason to make that understand that and i you know as soon as this issue arises i offered to file notice of her latest related cases and like my complaints i did alleg that i was going there to investigate potential s s ability violations there are not necessarily as and in my capacity as an attorney i had announced the problem that's the boilerplate language that one would have put a high all right let's let's hear from passing confidently ignoring your honour's and may please the court i'd like to begin with not by summarizing the record i think i was fairly complete by by responding to a number of questions that were asked as to which i don't think there were necessarily be forthcoming incomplete responses but i'm sure to get previously certified to the california supreme court in the case of white versus square although it was in the context of a website and white respond as the defendants will claim regarding access that have been denied on a in from a civil constitution constitutionally suspect ground the supreme court i was sufficient to any of discriminatory days as an unpronounceable discriminatory basis said however in a saving no to end a footnote to defendants but that doesn't stop you from demonstrating either for purposes of summ the questions that was earlier posed the question was why did you go there and why did you file in state court the out some so you know my question is why would an appellate court be asked as we are here to make those kinds of fact why are we doing this i'm not sure why we're having this conversation on appeal it's not about this court finding in fact in fact the magistrate judge and me has recommended ruling and the district judge affirmed a number of factual findings that i think are dispositive of the matter is that there's a fraudulent there's a finding of fraud here without this person having had an opportunity to explain and in this context as as i explained if i could just give you just keep this up and get out of your way about that the allegation in his state court complaint is boilerplate language that one would expect to see for if someone were indeed testing the a t m trying to seek them for cement right and in this particular context there's it can it can take on a very different meaning and i'm not trying to t sides here but it does strike me as unusual that the b of a finding on friday before individuals have an opportunity to come in and explain that and particularly because the allegations are that or the request in the order to show cause are really it really doesn't give the signal to this issue at all i think that's because your team defense was able to come in and you know both parties were in some of these confidential filings so the court had the argument was that he was going to be a witness that he should be disqualified because he'd have to be a witness that's plainly not the case if in fact it is but let's go back to the question of whether or not there was an opportunity there heard in fact the issue of the fraud isn't what specifically contained within the state complied rather it was in response to the magistrate judge order to share cause that counsel there and here is here the the arguing party sta that he might have a dual purpose and he had ever reasons and even in today's argument what we heard was much of that is junk so well i might have gone there to be a customer but i might have gone there also do inspect and i would be a customer as the parking lot the defendant was not selling space center parking lot and it was that misrepresentation to the magistrate judge in the course of responding to the order to show cause that heightened the concerns regarding the misrepresentations that were made to the court the court was not simply relying on the so to speak quite language that was in the complaint in the state complaint but rather get into the very heart of a number of questions that have been raised to day for instance why would somebody file a separate complaint in state court and the reasons are many precisely as to why you wouldn't do that you wouldn't do that one because of the high frequency not enga obligation the other is a fundamental distinction between federal treatment of disability access cases and state treatment and we're counsel i've got experience on the bench in state and federal court and i'm sure you practice in front of both  people have all kinds of reasons profiling and eat and my only point is at the end there may have been an explanation and i'm i'm just questioning why it wasn't given an opportunity to be heard on that point if i   so the magistrate didn't narrow the issue but rather gave him an opportunity having described essentially the fifteen parents of lawsuits that is those other than the ones that were directly at issue the case itself so mister bentley was not constrained in explaining why he had filed not just filed separately in state court but why this had never been disclosed today he says earners fons the former further order to braise when the matter was then addressed to the district court explaining why he would have filed that was the whole point is that everything was always stated i might have wanted to be a customer but even if i wasn't going to be a customer i still wanted to go to the parking lot i needed to go to do it each one of his explanations didn't give a reason why he would be in state court other than to conceal from the federal or the fact that not once twice or thirteen but sixteen times these had been filed separately the district court was concerned about the representations that were made in response to the orders to show cause and the requirement for further briefing it was those misrepresentations and the representations that have been made today demonstrate still an inability on his aren't to identify dorothy i mean this is the problem is months ago months ago he was asked to explain to a magistrate judge why there were these two lawsuits and while we never got to a making the statement while i was going to check it out because of my client in federal court would not satisfy the state requirements although it might have been federal or that would have made more sense for me to be in federal court seconded by the filing the two cases in state in federal court ordinarily where you have related parties related property you're precisely the same party and they're related because one of them  obligations to my client who's filed a federal case there's no reason on earth why he wouldn't have filed a notice related case of its months later her journey and e n e during the confidential raising of the need where the court then the magistrate judge learns of the fact that there's another case for the st time then causes him to issue the order to show cause in response to that he gets an entirely un satisfactory answer as to many of the questions that were raised today why did you file in two separate courts why are we finding out about this now the explanations that questions that have been raised but that don't change the concerns of fraudulent in the statements that you have really strong where it has nothing to vigil ever been asked why he didn't file a notice of related case if i don't know the answer to that question the that goes to the question of the concealment the concealment was always the issue it was the issue raised before the magistrate judge it was the district it was the issue raised before the district judge there was for whatever reason there were there was deliberation there was decision making going on in filing one in federal court one in state court more than fifteen times and the statement that will but now i'm represented by a separate attorney doesn't address what they did a year ago doesn't address what they did two years ago the reality is that whenever mister bentley thinks that he could cure it can't be cured by going back because he will face the same issues one of the misrepresentations of fact that are many born are quite language in a confines only goes so far it goes between the two pilots then the assertion would have been made throughout the course of litigating mister bentley's client in federal court that he intended to be a bona fide patron his words that i was invited to the property when in fact he wasn't and that was the statement that he makes in his briefing to the district judge well even if i didn't intend to be a house them or that some powerful beginning of a statement because it did not is a basis for invoking the jurisdiction of the state court it fundamentally alters was was the nature of the confines and it explains quite frankly to a degree that satisfied two judges in the san diego in the edition of course that there had been misrepresentations made me think that the court's decision was well well reason explain himself as chosen very carefully the words that he used the brief that he submitted and the story upon which he would rest it was this that concern of the court and simply asking for a over doesn't change what he did doesn't change the concerns that the court house and i think more correctly captured in both of the lines thank you counsel had hearings before magistrates where it was known that both of these cases were filed in mind both in both of them and in no other case was this issue brought up as something that was you know unethical or a violation places do business open to the public is broadly construed as in opposition to what mister abraham is saying as i got i wasn't personally invited by the business to be there i that's not the issue access them but at i had no intent to deceive the core about mind in these two cases and i wasn't given an opportunity to explain this by the magistrate or the district court judge might be in the told me hey these are fifteen times that you file these cases we think there's something going on that may be prejudicial to the ministry structure ministration justice you can tell us in five pages why you don't think that's true and i answered it to the best of my ability