good morning your honor as it may please a court my name is russell handy and i represent the plaintiffs in appellant in this case robert rodriguez rogers is the case that went to trial my client the appellate in this case robert rodriguez is a person with paraplegia he's confined to a wheelchair the case about discrimination on the basis of disability it involves his lawsuit against a home depot in the los angeles area claims the actual facts are uncontested we don't contest on appeal any of the facts that were found by the jury we're happy with those findings in a nutshell the case is one where my client was remodeling his home to make it more accessible for himself will share ramps and so forth and he made many visits to the home people in order to patronize that particular facility during the course of doing that he ran into a number of problems there was a number of barriers to his access he said we settled that case there was a binding settlement agreement that they would ce practices he continued to have those problems he called the police he actually held the demonstration he did a lot of things in order to try to resolve these issues he sued them again that's the case we're now on appeal he went to a jury the jury found in his favor germination that there w discrimination they found there was thirteen different incidents of discrimination this includes taking entire pallets of merchandise and putting them on top of the handicapped accessible parking spaces and the access tiles putting up a horizontal bar across the wheelchair accessible entrance blocking his ability to even get into the store and on a few occasions i think the jury found on three occasions restricting the path of travel into the tool sections of the person a wheelchair just for the gain entrance the jury also found that th numbers were awarded and i one of the reasons for that was that we didn't want to seek punitive damages we wanted only the actual damages and the civil penalty which is provided for by law there is a separate claim that someone can make and can go for for experience in dealing with these barriers it's a very difficult number to put it you know it's actually quantify and the jury found that was five thousand dollars and the judgment was entered for five thousand dollars yes aren't what do you want money look let me rephrase i want you to sweet man the case back to the district judge with instructions to enter the proper damage award of fifty seven thousand dollars did you ever asked a district court judge for that absolutely do you have an  cap under the civil code it says there's actual damages can be the term a jury and then there is a civil penalty that can be no less than four thousand dollars per proven incident for offense we do this in almost all of our cases and the judges are in agreement with us that we have the jury do what they do which is a finding of fact how many incidences or offenses were there and then because there's no discretion in the minimum you're only seeking the minimum special rate penalty the four thousand dollars which is the absolute minimum ok the judge really but the actual damages and any amount that may be determined by a jury or a court sitting without a jury here we have a jury right yes determined by the jury up to a maximum of three times the amount of actual damages but in no case less than four thousand dollars right now your actual damages were what five thousand house dollars yes aggregated over all the incidences yes five thousand dollars and how that how did that how did the jury reach that as actual games they heard testimony they made they think they did something that a jury has to do is not easily put a dollar amount to the you know the emotional distress and so forth well why don't we  may but it's a much more difficult standard of proof because and we have to when you're asking for actual quantification of these civil penalties if you're actually part of that you're asking for the minimum now on the rights of a grammy that's right we're asking for the minimum asking the court to do that no fact and the same thing that we've done in virtually every one of our cases been done this far as i know in every case that i've seen in this area of law and i've seen many of them if the jury returns a finding that there has been liability that they have violated the law then a attorney can either do want to do things you can we discussed with the district court as well the way that was that we've always done it when it's the minimum the jury has no discretion to order anything to vary from that that's something that's as a matter of law if there isn't one the jury instructions yet sixteen jury well this is not it and in fact the judge had no problem with us doing it this way we discussed with the judge this was not on a jury needed to do as a finder of fact they don't need to do the thirteen times for i let me ask you another long term under verdict and the jury gave you nothing then you came back and now want the park to do what the jury was supposed to do under different instructions and the right i don't think that's the case your honor because i guess the question is does the court have the authority to do the multiplication in the judgment award or does it have to be done by the jury so there's a finding of fact of thirteen thousand dollars i mean of thirteen offenses the minimum statutory penalty the civil penalty as the minimum for each such a stance is four times each one of those that's in us a minimum anything more than the minimum we would have to have a journey a term and cousin to try to an issue of fact not to a maximum of three times the amount of actual advantages but in no case less than four thousand dollars to each one of your claims in hindsight cressy would have i think the question they do this all the time we always deal with the judge and in fact this judge never had a promise that he there wasn't a basis for her declining our request the she multiply the she had no you've done it for each and every offense that was the basis of a ruling is very clear it's in the excerpts of records and so yeah i got about you know when you get a ruling like get if you're a trial lawyer and you don't agree with and you got to make asking for is the court to apply the the civil code as it's spelled says of course you should have asked that in the trial court and you should preserve your record and you should have had the jury if you had said what went to the jury you know our lawyer doesn't have to agree with everything a judge says where we really know lawyers job is to take a make a proper objection are make them proper an instruction and the judge turns it down you've got air i understand your honor and i we didn't have a problem with the special verdict form as it was drafted because it asked the jury to do what we wanted them to do was just return findings of fact with respect t he civil penalty that can be awarded by a jury or a court sitting without a jury the civil penalty is automatic it's just automatic the minimum part portion of that civil penalty no less than four thousand dollars a year and then answer judge be the minimum of four thousand dollars per offense that's all we wanted we didn't care about multiplying and the jury for that that is correct we asked the judge to awarded in the damage award back because we have the finding that there was thirty offenses there was no discretion in a jury to vary from the four thousand dollar minimum penalty assessment for each of them was something that could be just simply calculated by the judge who didn't need a jury to make any findings of fact with respect to the damage award is routinely done and so what we were asking for was whatever the actual damages where the jury determined that what about the actual damages you multiply it by three you get that right if you want to go that way you can but you don't have to lose the alternative well discussion with the court of the court didn't have a problem with it in fact i've never seen a problem with that before when we're talking about the statutory minimum which is not fine is the need to be made and so and the judge in fact shouldn't have a problem with that her problem was the standard of  hurley for responded home depot i need to clear something up which is i can't find in the record any instance where plaintiff's counsel appellant asked for four thousand dollars per incident it's in their brief but there's  prejudgment or after judgement i'm sure you agree with that i do agree that your honor this seems to result revolve around civil code section fifty two and the way i understand the way i believe what the jury did and we understand so look at section fifty two is that the plaintiffs get actual damages in any amount termed by the jury however if those actual damages are less than four thousand dollars the statute says they get four thousand dollars they got five thousand that's more than four thousand dollars i think that's the extent of it what i believe was going on at the time of trial was what you may have referred to which is let's roll the dice be a little loose with the jury instructions and see to that the crux of that instruction that they got if you decide to work in it of damages the now amount cannot be less than four thousand dollars no no nor more than three times the total actual damages that's their instruction and the jury came back and said zero read it again with you if you decide to work punitive damages the amount can cannot be less than four thousand dollars no nor more than three times the total actual damages i'm sorry yes no more than three times the total actual damages so fifteen thousand so you  damages were awarded yes the jury in the special verdict form indicated that my statutory damages the minimum statutory damages watchdog no i don't believe the council ever asked for that statutory damages as a multiplier i don't believe  the record i didn't supplement with the entire record i supplemented within the scope of what i believe their appeal was that that they'd get an additional four thousand so that they would get a judgment of nine thousand you know you are punitive damages which is under the california civil code and applied all kinds of cases we specifically asked for the civil penalties and it's in the excerpt of records a very clear dialogue with the court where we ask for that this is excerpt of record number and in fact defense counsel very clearly says i thought we were just talking about four thousand dollars per offense that's lines twenty three to twenty four the judge goes into a discussion in this is where we feel the judge erred she said we don't on title to the civil penalties you're it's a clear dialogue with the course i disagree with your analysis that's not the way it's going to go it's already on the record and this is what we're appealing is for legal analysis and her precluding us from thinking the four thousand dollars times each offense and for each one the court said there wasn't finding that you're entitled correctives for each one that's right and that's what we went on appeal with but they should have something that's still in that phase the second phase even if she was correct there still should be four there wasn't even that