the morning your honors my name is scott hubbard i represent the plaintiff michael rocha in this matter before i begin i wanted to touch on some housekeeping specifically a ninth circuit opinion came down after the briefing this issue that fair enough so based on that case of koehler versus presidio which i will provide twenty a letter with the clerk will give you a piece of paper afterwards or enough it provides that it would support the district court holding on the hand towels so equal the facilitation in that respect applies so we're withdrawing that claim and it extended the strong versus valdez holding to trial testimony as well so  about a half a dozen issues it did the ones barriers that weren't addressed in the summary judgment motion a were resolved carried over to trial we went to trial on those they consisted of in essence poor judgment relief on one on one sit on the other there's no standing correct and that was going to be my first argument and i still wasn't much fun so where did the judge err on the standing issue standing issue air let's begin with actual injury i'm thinking of the wrap pipe pulling them up i can describe them to you if you notice above you'll notice two small little pipes are actually one pipe that is not wrapped silver that's the hot water pipe not the one right against the wall  describe this we had the clients to domonique about the potential for burning his legs which would be impossible under the ninth circuit under the strong well i looked at that testimony counsel and a page of the transcript you think i might have missed  arriving at this finding of fact he disregarded the photos which this why this is a big deal it does burn my mother was in a wheelchair your honor you say it's it's crammed in there how can they not touch it wheelchair users this is a big problem for them the photograph showing the pipe that's unwrapped and all the pipe has to be is unwrapped the pipe moves it does move it's a it's a free flowing pipe it's made out of that i don't even remember greatest regrets is that we did include more photos on this well the record a little tough so one of these photos shows a garbage can between the two sinks someone does not yes sort of barely does is taken from the other direction maybe a better way to say it one of them all right this is unusual your honor because the are that i downloaded from the courts website doesn't show these to the second picture it just shows the first one but i can circle it for the court to when you put a star in the one that is in the record yes yes they're both in the record your honor it's just that the one that i'm referring to is your one hundred what's the unusual part what's missing it was not put in the excerpts of record and so i don't know where the second so you think it's in the record but not in x years in the record but i don't know ok i don't want to take a whole lot of time on this but all right ok so this is the one this particular  correct yes and he said with respect to parking there was no standard so he just threw those out correctly said didn't really encounter any injury any harm right given to the rest of the analysis and with the pipe he said well you know there is injury but i just don't believe there's a violation he actually just to back up a bit on that first when he did go through the analysis he did say this is what plaintiff claims this is what the evidence shows this is what the is however plaintiff last standing and so that's the approach he took which was as you said was kind of curious in that regard the second what was wrong with the standing but nothing in my humble of did the judge thank you was didn't demonstrate or testify to intent and intent to return isn't that that is part of it i believe with respect to his trial testimony he couldn't believe that any southern california native would want to avoid the l a x the five at have five minutes left i really would like to save some time for a bottle is there any other questions that i could answer briefly but let me just i have with regard to  recall we were both there your honor that and based its decision its analysis on darren vs seven eleven which is also one of my cases and indoor vs seven eleven judge gould wrote that a disabled plaintiff only had to be in the city  within the next year in order to come out that's not how i understood chap in saying that look chapman didn't tell me on that particular issue but it did rely heavily on the analysis of darren versus seven eleven and remember return pretty clear he talked about the freeway let's but it's very clear it says he doesn't have standing to just the following violations and i know he identifies three and they're all about the parking lot it is a graph eleven is then about the remaining barriers so what's your if it means this is a credibility determination are you saying that he didn't have that we should find it clear we alone yes when the judge decides that he's listening to this witness and doesn't believe there's an intent to return this is going to go that would take care of the whole case all right here is the here's going to be the long answer and the long answer is let's assume argue endo judge judge wright's opinion was based entirely on the belief  that went to this particular denny's to find violations of the a v a basically he was going to hire i understand as an attorney general or a tester even if that's the case the congress drafted the  beached on the f h a and the civil rights act of one nine hundred sixty four to make this entirely acceptable behavior say you don't have to convince me that well i'm looking at the order and to ask you a different question i'm not saying there's something wrong with being a tester you know the question my question is as to paragraph ten what the judge found is he lacks standing because the judge didn't believe that he had an intent to return and that and the judge found lack of standing as to the parking lot and you have to go into  judge's attorney for you order to see what that was what the base is so i haven't got my question yet maybe you maybe don't want to answer i'm i'm i'm trying to hard your honor as i'm more time please if he doesn't have standing for the parking lot violations how would he have standing for any of the other i would say that if you read sections a b and c a paragraph ten yet he talks about how because no one parked in the access aisle next to him and because he did have a van that he drove to that he drove to the station he lacks standing to complain about those particular barriers i believe that is the answer i can give the and sink my entire prior occasions that his car the turn from visiting because of his accessibility that the stores conveniently located near his favorite fast food restaurant and that he planned to visit and i'm at least once a year on his annual trips to just the land i mean that's a completely different set of it was a tax and now we have here it is not anyone here only comes up because he says he was planning to come back once a year but york i don't even say that my guy said that he went down that way and stopped and it goes to the old city my guy said that he would return that he does drive that route and he does stop at denny's and gets meals that would he and she had never been there opponents have admitted as much in their brief it is clear here that judge wright followed the strong court in his findings of fact and conclusions of law at paragraph eleven he states that although rocha did not provide any measurements of the door latch he still found that the door to door latched violated the california building code and cost to divide violation of the  evidence demonstrated the same with regard to the space in the clear space that's required in the bathroom the judge said there that there he it was not clear to him that sixty inches there wasn't sixty  give any any specifics at all and and you know the with regard to the to the to the credibility of the witness here judge wright said that he did not find  credible and he did not heed it he did not believe his testimony regarding the clear space in the bathroom you know let me ask you something if and in some ways this all relates largely to was in fact a violation when he was there with regard to parking the only consequences that i think you can tell me if i'm wrong is now when there'd be an order to fix the parking and  then when you were chatting up the fee is there be one more a positive result federal statute would not permit the award of fees to the defendant under those circumstances it was defended speech we're talking about here your honor we're here you have a situation in which he was a prevailing party and the occupied and ensured that all americans get for free and equal access to public accommodations and as regulated this fear the states have been allowed to also regulate the sphere but they cannot regulate th was where the federal statute would not allow the warden fees under those circumstances it's a little it would be allowed to give the fees here right under federal law yes he would be the judge wright was to for the judge to zero amount on that basis he would have to do some kind of an eye balling to to admittedly in this case probably very drastically reduce but certainly reduce so i don't want to belabor the point but do you have authority for your position if you've got it i