the morning your honor allow me to introduce myself my name is scott hatteberg with me at the table is trial counsel co appellant and my father lynne hubbard the third i represent the appellant i just have a brief statement to make and then if the panel doesn't have any questions for either me or him i will reserve the rest of our time and my statement is we've litigated tens of thousands of eighty lawsuits over thousands of facilities all of them with surveillance cameras we've done this for twenty years i promise you that if we were the incompetent and an ethical monster that the defense portrays us to be someone would them off the top of my head is that the court stated that we didn't provide a reason for our amending the deposition testimony not only is that incorrect it was to a form who put it in front of the court it a letter that we sent to counsel as soon as the error was brought to our attention we explained to him this is what happened i guess you from my perspective jury picking a point that is a great great m possibly both be true no actually that's not true here's what happened when under our system when our client has a case they send us a copy of the receipt any pictures they took and any measurements they took we need the receipt to determine the date of actual visit and to prove to ourselves that this isn't a drive by lawsuit they're our client showed up he visited the syllabi he took pictures he bought something he thought he was actually there he encountered the barriers that he claims to have encountered now once we get that material and he wants to proceed with a lawsuit now once we get that information we send out an attorney with a smart level and a camera to visit the facility himself to determine whether or not architectural barriers are there we've been doing there that was my receipt and i bought the i bought the coke the giant coke that you get at mcdonald's and if you look he said that i mean he just he did but if you look at the pictures though you know those are the pictures i took if you look at the deposition transcript and let's be honest this was a mistake but this is the only documented mistake in twenty years we've been dealing with this case no in twenty four was dealing with were given with what happened in this case because the judge well the judge in his ord makes reference to some other case down in sand you know look like yeah but are the facts a little wrong there but the california supreme court and the state bar both look at a profession the lawyers prior conduct and his son but that's not when determining  that's the district court judge imposed terminating saying sions here under the court's inherent authority because he found the basically your client lied yes terrio fact that was important to the case i have to that's why they that's all those statements are true that's why the district court dismissed the case and here's the problem with that the fact that we the fact that we are allegedly lied about was a lack of standing and as we indicated in our opening brief even if everything the defense said was true even if attorney lin hubbard went there and you have to lie about a material fact and we've accepted full market alive in material that you can do that too but that's not perjury and the judge accused us of a perjury you know from from our case law in this whole area and i don't know if you your firm with response was involved in our standing cases obviously of them yes under the ada you know well and good that in these cases standing can become a major issue it can be well and you need to and you know when you litigate these cases when you file them that you've got to craft the complaint and you need to be prepared to deal with the standing issue that's raised by the other side and we did and you suffer if you don't you're going to suffer the consequences and here that's what that meant to that's why that fact is is really material because you want to be able to show that before you file that before that complaint was filed he was the plaintiff was out at the facility and encountered the barriers and that's where you're wrong and that's where the why am i wrong what's wrong with that's what our case law says because no actually your honor doesn't we weren't turning record in durham versus seven eleven we were attorney of record in chapman versus pure one and i can say based on my firsthand knowledge on all of those that a disabled person does not have to encounter a barrier in order to have standing to remove an actual knowledge of the barrier alone is sufficient and that's the main really restructured no no no actually i'm not sure that once they've encountered a barrier once they've encountered that there are other barriers that they didn't actually encounter they can raise those no judge gould was explicit on this the in bank opinion was explicit on this it's actual knowledge if someone goes in to a very restaurant and says you can't get into the bathroom it's too narrow that disabled person does not have to go into that bathroom and encounter that barry himself to discuss to have standing to remove architectural barriers i included a footnote let me ask you this don't they at least have to visited the location or the facility prior to filing their complaint no circuit that also they want to file a complaint knowing somebody told them yes that amadan the mcdonald's down the block here the slope is too steep let me give you a real world example but yes to answer question before because in scale with complaints lawyers do that answer the question first and give an explanation yes and let me explain to you walk let's assume that i judge forgive me i did not mean to be disrespectful let's assume that i'm looking i'm in a wheelchair and i'm looking to stay in arizona and i call some of the hotel and i said do you have any eighty excessive ballrooms they say no we don't have any haven't been there haven't encountered the room have actual knowledge that there are barriers present that i can't use that facility i don't have to go to arizona present myself to the hotel demand to see all the rooms to have standing and this is what the department we alleged in our complaint that he had been told that this particular mcdonald's had barriers we allege in our complaint that he had actual knowledge of the barriers present which would be sufficient under doren and chapman and i can pull up that citation during the break and get the exact language in your view this is just nothing more than an immaterial fact standing is never an immaterial fact but accusing us of lying about an immaterial fact to manufacture standing in a case where it already existed and would exist under even the accuser's set of facts it's me it's immaterial regardless how you look at it and i have five minutes and forty seconds so unless the panel has any other now i think the important point to mention here in this proceeding today and the court has already touched upon this as of this is really about one case this is not about the hundreds or thousands of other lawsuits that filed over the years this is about a fraud that occurred in one case people do make mistake understood your honor but but based on the evidence that we presented to the district court this was not a mistake and the district court was well within its discretion to conclude that the justification offered by appellants was not persuasive and if i may i would like to emphasize that again this in evaluating a motion for terminating sanctions and for attorney's fees pursuant to the court's inherent powers this is reviewable on abuse of discretion standard from your perspective let's assume argue that your opponent is correct that they had standing based upon what was alleged but there were lies by the attorney and there were lies by the plaintive the lies themselves in two have to permit the court to do what it did in this case as i understand the court's question yes because again what we're talking about here is a lie about about the fact standing is a legal concept and as much as the opponents would like to turn this into an argument about what is standing under the ada yeah that was not before the district court and so what the district court decided in this case and i think in this way answer your honor's question is that the appellant's lied about the fact that vogel had been to the restaurant and encountered barriers that day now those are the facts those are the facts that  ant's would use to establish standing at trial but those are facts that was important to the district court absolutely what it talks about standing up well but again the standing issue is the stand the importance of standing to the cases that interferes with the rightful decision of the case it's something where if there are factual misrepresentations about an issue that's not important that the case could be decided wrongful and that's not the purpose of litigation litigation is the truth attorneys that's don't believe that's correct your honor there was as i recall there was never a demand that was made to us that would have been the end of this controversy somewhat your honor what we did when we when we disclosed the existence of the video and as part of the meeting confer process for the motion for terminating sanctions we laid out the basis for that motion and we requested that the problem but you know if they had really done what you said and they got caught at it and all they had to do is dismiss a case instead of risking their entire careers don't you think that they would have mrs cases they said they've got thousands of these cases they didn't really need this case and if they were caught and were deliberately lying and manufacturing a case why would they fight this this way at the expense of their careers well your honor i think this may not have anything to do with the answer of the question but as i read the case i thought to myself you know if you were really committing case well to be very your honor i personally would have to speculate as to the true motive spined that me answer that question but what i can say is that based on the evidence that was in front of the district court the  evidence would indicate that again this was a circumstance where and as as counsel has stated that the the law firm is a very frequent filer of access lawsuits and does have a reputation to protect and so  underscoring with that and i think what is important to keep in mind here is that there was there was never any evidence presented not just to the district court but to to us to the defendants that what occurred here that really anybody was willing to stand up and defend that conduct which you know our evidence on this point was very compelling but they did offer an explanation which they which provided the factual basis for their mistake that's correct it was an explanation that that potentially could explain the facts but you need more than that and especially in circumstances like this where we have we have video that is indisputable that there needs to be some explanation for why this is a kurd no doubt i mean nobody geralyn thing fact that council was there and that  that got there and the original got with birth well and there's there's two points that first if if that is true if this was truly an honest mistake then one would expect that evidence a truthful declaration under penalty of perjury could be provided from vocal himself at a minimum and again the rules of civil procedure even even require vogel to state and counsel has argued that his letter sufficed prior to the iraq being signed that that letter explained why vogel misrepresented those incredible number of statements in his deposition testimony rule thirty requires the deponent to sign a statement under penalty of perjury testifying to why he made those changes and without something like that and the district court was very clear on this point you the district court entitle to conclude that that the the rights that were of such a substantial character were really purposefully intended to cover up misconduct and so that's the problem i have it is not fair to say they have a case i'm familiar with called higer versus goodyear that sometimes people who lie to make misrepresentations just keep pushing thinking they're going to get away with it  and arguably that's what the court thought have happened here i think that interpretation could be drawn from the facts in this case as well your honor i do and as i mentioned before in terms of of  this court's role in reviewing the case and in determining where we go from here the the grounds on which the district court's discretion can be overturned would be an error of law or a clearly erroneous assessment of the evidence we've talked about the evidence a little bit and i did want to least emphasize to the court that in terms of the law here and we've we've talked a little bit about standing but the law here was the law in terminating sanctions we did not file a motion for summary judgment for example on the ground the plaintiff lack standing to bring this lawsuit all we offered to the district court was that appellant's acted in bad faith in this case and on that ground the district court applied or excuse me under that theory the district court applied the applicable law there's  disputed that any of those authorities are applicable or that any of the that there are any authorities the district court should have considered with respect to terminating sanctions that were not considered so so really there is no error of law that was committed here by the district court and you by waiting the motion for sanctions now as as the the court mentioned earlier today the issue of standing does come up but only to the extent that standing is a very material issue to this case it's a dispos was not the subject of our motion in our in our appellate brief because the appellant's raised that issue of standing it's clear from the cases the seminal cases from this court on on standing that the plaintiff has to has to visit or the plaintiff and in fact the plaintiff in each of the four cases that appellant cited did actually personally encounter some form of a barrier now whether as as counsel explained there is a circumstance where a person calls a in a combination asked for an accessible room and is told there is no excessive all room i would not argue that that's actual knowledge so much as another manner in which you could personally encounter a barrier that's not the lawyer calling ahead or visiting an accommodation and then reeling to his client oh guess what there's a mcdonald's restaurant that's out of compliance let's put your name on a lawsuit and we'll go from there and again that's that's a conclusion that can be drawn from this evidence here and there's nothing in the record before the district court that would explain in any competent fashion why those this was this was a truly an honest mistake it was not and the district court was well within its discretion to come to conclude that if i may your honor just one one final point i think there is you know again in the in that think the courts are a tool for effecting justice and you know i could mention this is not a a case about what happened in prior cases or anything like that but this is not there's nothing to prevent the same type of misconduct from happening again and to reverse the district court on this point would provide bad faith litigants with impunity to flood the courts with these same types of false accusations and so as i as i argued previously false accusation is not necessarily what happens here the accusation  basically the mcdonald's is violating the law and that may or may not be a false accusation we have no reason to believe it is well that the accusation that's false and actually i can point the court to the language of the complaint eight hundred mcdonald's or whatever they are let's assume that mcdonald's a constructive in a manner that makes it accessible in order to sue there you have to find people to go to each one of those places  way a client has to go through each one of those places to prove that each one is in excess and you know whether whether that's just that's the only way that correct inaccessible place but that's not really looking at this that's true your honor and i think the counterpoint to that again is that the when it went to plaintiff does not personally visit a restaurant and is told by somebody else that is if it is inaccessible then the plaintiff is not ordinarily encountering those barriers the plaintiff may not go there may not even know about it but for his attorney's visit and understand that it might be inaccessible now what if the defendant in its own course of business and it s own good faith efforts to comply with the fixes those issues anyway and is in the process of fixing fixing those those conditions that might result in some dispute over their accessibility it really forces claims into the court system that really shouldn't be there and that's the only point i wanted to make there your honor i think and i'm running out of time here but the last point i would make here too is that again we've demonstrated to the district court really beyond a shadow of a doubt what occurred here and appellants offered nothing in response and so this record was entitled to conclude as it did that the pollens acted in bad faith and that bad faith started in january two thousand and thirteen and concludes to this very day in the form of this no one disputes that he visited the facility before visited the property before filing the complaint that actual knowledge of the bears their intimate knowledge of the details of of the layout of the restaurant the problem is those photos and the receipt where they say are these are pictures yes they are they were pictures there at the restaurant here  before there's two pieces of evidence first is the fact that we went out there and did a ruhleben site inspection now i know opposing counsel is really big on calling us liars and frauds and forgers but sometimes a mistake is just a mistake and we w n evidence when we declare when we were doing our response to judge gutierrez we laid out our process and the evidence was we said listen he has an intimate knowledge of the of the facility he knows where all the barriers were and we would not have gone out there but for him contacting us giving us a receipt and telling us client into court to testify in front of judge to two years and answer any questions that he might have establishing that he visited the facility prior to bringing the lawsuit and giving judge gutierrez to make sure judge one hundred percent confident in our standing in our guys telling the truth but he just made a declaration at that point it'll be a perjury at this state that yellow at this stage of litigation it wasn't we thought that deposition transcript edits under the penalty of perjury were just as good it didn't come up when we were in oral argument we offered to produce him judge gutierrez said it wasn't necessary he was fine with that  that let me forgive me your honor i have to look at page twenty three of the reply reply brief i would recommend that if the court wants to go down this road column and sit him down ok he's already seated wheeled him up and asked in the questions of why did you change your deposition testimony well his explanation would hopefully be the same i hope they would to your honor if and basically he said in his order that it wasn't necessary because vogel wouldn't provide any additional information and a couple other parts want to hit the reason that we file so many of these lawsuits is because there's only two firms doing it and the reason we're fighting the so hard is we're firm of honor and integrity no judge has ever known district judge has ever accused us much less found us to have manufactured evidence and much less constitutional standing and the reason we don't fry and no one in their right mind would try is because there are video cameras everywhere you can't fake of this it just there were none of the number of changes to the deposition were quite substantial they were which one of these changes indicates or makes it clear that he visited the restaurant prior to january sixth your honor i have one minute left i mean you know this better than i do i do and i don't have a minute to flip through the record allow me to do twenty six f letter and i will identify the chamber when i can look at it myself but you said that there are if i amat that i have a mall up here if i look at it if i read each one very carefully it will indicate there we then before that before january sixth he visited the restaurant we edited the record to eliminate the date of the roll of insight you read something you read january as the date of his inspection or summit as the date of his visit clarifying that that's the role of insight inspection and we eliminated the references that that was his receipt and that photos and i believe because cush was incredibly thorough on this he also change that he visited the date sometime before that but i do have to double check my record here you know when you read it he says for example he says i do not recall visiting mcdonald's on january twenty eighth never i'm going to take a very hard look at this but we are twenty nine and he are thirty and i would also instruct the court to look at forty nine which reads on november fourth two thousand and thirteen the court held a hearing to discuss the merits of defendant's motion at the hearing coun requested an evidentiary hearing to allow local to appear before the court however the court sees no merit in conducting an additional hearing because counsel conceded that his client would merely reiterate the facts and arguments are ready contained in the opposition brief currently before the court now the basis of our request was in most keeper says evergreen the last time something like this happened opposing counsel or the council tom frankenfish wasn't given an opportunity to conduct an evidentiary hearing and i told judge gutierrez and that's in the transcript too that if he's going to go down this route the most keepers evergreen sanction route he needed i have a bench or a hearing so that