[00:00:02] Speaker 02:
Thank you, Your Honors.

[00:00:03] Speaker 02:
May it please the Court, my name is Polly Estes.

[00:00:06] Speaker 02:
I'm here representing the Plaintiff Appellant CR.

[00:00:10] Speaker 02:
I would like to reserve five minutes for rebuttal.

[00:00:15] Speaker 02:
This case is basically

[00:00:18] Speaker 02:
about a child with severe autism and compulsive disorder, anxiety disorder, who cannot be left alone.

[00:00:28] Speaker 02:
He's cared for by his mother, by herself.

[00:00:32] Speaker 02:
So every time she goes out, she has to take him with her.

[00:00:36] Speaker 02:
Due to his disability, which was stipulated, he is extremely sensitive to noise, traffic, other people, various stimuli that would seem perfectly normal to us, but seem completely overwhelming to him.

[00:00:55] Speaker 01:
I want to ask you to focus on two parts of the claim here.

[00:01:00] Speaker 01:
One would be the causation and the second would be the damages.

[00:01:04] Speaker 01:
So starting with the causation, walk me through what the evidence at trial showed in terms of why the denial of the parking spot close to the apartment caused the child to have emotional distress.

[00:01:21] Speaker 02:
The evidence that the jury heard is that CR has several triggers, including the car itself.

[00:01:32] Speaker 02:
Just going out in the car can make him nervous and make him more prone to having a meltdown.

[00:01:40] Speaker 02:
Not always, but the frequency goes up.

[00:01:43] Speaker 02:
He has problems with his balance and his coordination and knowing how big a step to take.

[00:01:52] Speaker 02:
He has problems walking on any uneven surface.

[00:01:57] Speaker 02:
And as I said, he is severely triggered by noise, traffic, and other people.

[00:02:04] Speaker 01:
So one of the things that I saw in the briefing in the district court decision was essentially there are lots of triggers that are affecting the behavior and the emotional distress and it's difficult to say that the denial or the lack of a close parking spot is a singular reason for emotional distress.

[00:02:26] Speaker 01:
How do you respond to that point?

[00:02:28] Speaker 02:
It may not be the singular reason, but it certainly adds to it.

[00:02:32] Speaker 02:
It makes the likelihood of a meltdown, of him running into traffic, which he has done, far more likely.

[00:02:42] Speaker 01:
And what does the record specifically show?

[00:02:43] Speaker 01:
I know we had the testimony from the child's mother that talks about some of this.

[00:02:50] Speaker 01:
Was there any other expert testimony or other?

[00:02:54] Speaker 01:
Information in the record from which a jury could conclude that the denial of parking in particular Close parking caused the distress.

[00:03:02] Speaker 02:
Yes, there was his treating physician from UCLA.

[00:03:05] Speaker 02:
Dr. Eric curcio specifically testified that he due to his disability he needed very close by parking because without it having to walk

[00:03:18] Speaker 02:
even just a block down a very busy street, which all the streets around there are in order to get to their house.

[00:03:25] Speaker 02:
Their particular unit is right next to one of two main entrances used by 11,000 people to get into this complex.

[00:03:34] Speaker 02:
And so all the streets are quite busy around there.

[00:03:38] Speaker 02:
There's lots of traffic.

[00:03:40] Speaker 02:
and in fact he and his mother have already been injured because he was triggered while walking from a parking place on 6th Street because they were unable to find parking near their house and he heard a loud noise and in typical fashion he covers his ears, he closes his eyes

[00:04:02] Speaker 02:
And he bolts.

[00:04:04] Speaker 02:
He just runs out, not realizing where he's running to, which is a problem.

[00:04:11] Speaker 02:
And he's six foot two, so he's no longer small enough for her to simply pick him up and carry him.

[00:04:19] Speaker 02:
He's a big, healthy boy.

[00:04:22] Speaker 02:
And when he bolts, she has to run after him.

[00:04:26] Speaker 02:
And several times now, he has run straight into traffic.

[00:04:31] Speaker 02:
So having the space right next to his front door, right next to the grassy area is very important because he will often become dysregulated during the course of the car drive, right?

[00:04:45] Speaker 02:
And he'll start thrashing around.

[00:04:46] Speaker 02:
He'll hit her.

[00:04:47] Speaker 02:
He'll hit himself.

[00:04:49] Speaker 02:
He'll cut himself with the seat belt.

[00:04:54] Speaker 02:
Thank you.

[00:04:55] Speaker 02:
And then when they stop,

[00:04:58] Speaker 02:
And she goes to let him out.

[00:05:01] Speaker 02:
He'll just bolt out of the car.

[00:05:03] Speaker 02:
So she wants the specific space that she requested, because it's next to a grassy area.

[00:05:10] Speaker 02:
So that right when he bolts out of the passenger side of the car, with or without his service dog, why they're on grass.

[00:05:20] Speaker 02:
They're safe.

[00:05:22] Speaker 02:
He can fall down without hurting himself.

[00:05:24] Speaker 02:
He's not bolting into traffic.

[00:05:26] Speaker 01:
Okay, so that this has been helpful in clarifying how about on the damages because the district court Seemed concerned with a few pieces of this one.

[00:05:33] Speaker 01:
How did we get to this number?

[00:05:35] Speaker 01:
To there were some comments made at the closing argument that the district court took exception to why don't you address both of those?

[00:05:43] Speaker 02:
Let me begin with the second one the remark

[00:05:47] Speaker 02:
that perhaps they should view this in a punitive light made during closing argument was not objected to.

[00:05:54] Speaker 01:
But it wasn't an improper, though?

[00:05:56] Speaker 01:
Yes, it was.

[00:05:57] Speaker 01:
I mean, it's difficult sometimes.

[00:05:57] Speaker 01:
Sometimes it's difficult to object at closing.

[00:06:00] Speaker 02:
Oh, I don't know.

[00:06:02] Speaker 02:
I would object if it was.

[00:06:06] Speaker 02:
But I'm a tad outspoken.

[00:06:09] Speaker 02:
It was not objected to at the time, and although it was brought up later, he gave a directive to the jury, and this court must presume that the jury followed the jury instructions that they were given.

[00:06:25] Speaker 01:
Well, that's a fair point.

[00:06:26] Speaker 01:
And if we were reviewing this where the judge had said that the statement was not a problem, I think there would be some deference given in that situation.

[00:06:35] Speaker 01:
Of course, here the judge said it was a problem.

[00:06:38] Speaker 01:
And the district judge is the one managing the courtroom and observing this.

[00:06:42] Speaker 01:
And so how much weight?

[00:06:44] Speaker 01:
It seems that you want to use some of the other instructions to delimit a little bit the effect of the statement.

[00:06:49] Speaker 01:
But the judge who was there seemed to view it as pretty problematic.

[00:06:54] Speaker 02:
Well, he seemed to view everything regarding the case as a death problematic, frankly.

[00:07:02] Speaker 03:
Which is why you're asking us to send it back to someone else.

[00:07:05] Speaker 03:
That's right.

[00:07:09] Speaker 02:
But I still think that because juries are presumed to follow the instruction, and they were not asked about punitive damages.

[00:07:18] Speaker 02:
They were specifically asked solely about what damages were caused.

[00:07:23] Speaker 02:
by the failure to provide a reasonable accommodation.

[00:07:25] Speaker 03:
Do you agree that the damages here were out of line with what normal cases like this would have been valued at?

[00:07:33] Speaker 02:
No, I absolutely do not.

[00:07:34] Speaker 02:
If anything, the damages were a little low.

[00:07:37] Speaker 02:
And let me tell you why.

[00:07:38] Speaker 02:
So getting to how they could have calculated damages.

[00:07:42] Speaker 02:
Number one, we're talking about emotional distress damages, right?

[00:07:45] Speaker 02:
And those are always going to be somewhat nebulous.

[00:07:49] Speaker 02:
And they're definitely up to the discretion of the jury to think about.

[00:07:56] Speaker 02:
Two things come to mind.

[00:07:58] Speaker 02:
First, they didn't respond to her at all for over a year.

[00:08:03] Speaker 02:
She had to keep asking and keep asking, and finally, after a year.

[00:08:07] Speaker 03:
Why does that increase damage?

[00:08:09] Speaker 03:
See, now you sort of are getting into the punitive area.

[00:08:13] Speaker 02:
No, no, I'm really just talking about the time period.

[00:08:17] Speaker 03:
So that for a year... So you're saying that that makes this case different than other cases, because there was a narrower time period that was involved in some of the other cases.

[00:08:29] Speaker 02:
Yes.

[00:08:30] Speaker 02:
And so there was a year when we know that absolutely nothing was done.

[00:08:34] Speaker 02:
And we know that for 260 days, they put a cone directly in the one spot that she had requested.

[00:08:46] Speaker 02:
Now if you take 260, it's kind of close to 250, right?

[00:08:52] Speaker 02:
So my guess, my best guess is that's where they came up with the number.

[00:08:56] Speaker 02:
They had to come up with somewhere.

[00:08:57] Speaker 02:
Juries like round numbers.

[00:08:59] Speaker 04:
in my experience pardon a thousand is that what two hundred fifty days thousand dollars i thought the district court cited thirteen hundred thirty three and then divided that into two hundred fifty thousand came up with a little under two hundred dollars

[00:09:18] Speaker 02:
Well, if you're only looking at the number of days the cone was involved, right?

[00:09:25] Speaker 02:
If you're looking at the total amount of time between when she first requested and the start of trial, then you get the 200.

[00:09:32] Speaker 04:
I mean, the problem I'm having with the damages award is the record is pretty thin in terms of

[00:09:40] Speaker 04:
evidence to help quantify the amount, counsel urged the jury essentially to pick a number to punish the company.

[00:09:50] Speaker 04:
And I'm having a hard time on this record understanding why that isn't exactly what the jury did.

[00:09:57] Speaker 04:
And they came up with $250,000.

[00:09:59] Speaker 02:
Well, there was only one small remark about punishing, right?

[00:10:05] Speaker 02:
But throughout the whole course of the trial,

[00:10:07] Speaker 02:
It was what types of emotional distress does he experience, how frequently, and how long has this been going on.

[00:10:16] Speaker 02:
So the focus of the trial and the evidence at trial was really about the types of emotional distress that he experienced.

[00:10:24] Speaker 04:
Is there some reason why plaintiff's trial counsel

[00:10:29] Speaker 04:
could not have engaged some kind of an expert to help quantify the amount.

[00:10:38] Speaker 02:
Yes, there actually is.

[00:10:39] Speaker 02:
And one of our points is that the district court aired

[00:10:43] Speaker 02:
in limiting the testimony to one expert.

[00:10:47] Speaker 02:
So we only were allowed to present.

[00:10:49] Speaker 03:
But he didn't limit it to say, so he did limit it to say the expert could talk about what he observed, right?

[00:10:57] Speaker 02:
Correct.

[00:10:58] Speaker 03:
But was there ever, even with that expert, was there ever a limitation or a request that that expert weigh in on damages of what he thought appropriate damages would be?

[00:11:09] Speaker 02:
No.

[00:11:10] Speaker 02:
No.

[00:11:11] Speaker 02:
I don't believe that there was.

[00:11:12] Speaker 04:
And there were no experts that were teed up so that you could proffer, this is what my excluded expert would have said had the court allowed him to.

[00:11:21] Speaker 02:
Actually, they could have, and I wish I had been hired sooner.

[00:11:25] Speaker 02:
I would have insisted on a proffer.

[00:11:27] Speaker 04:
So the answer is no.

[00:11:29] Speaker 04:
There was no proffer.

[00:11:30] Speaker 02:
There was no proffer.

[00:11:32] Speaker 02:
They did, however, specifically ask to be allowed to present the testimony of the psychiatrist.

[00:11:39] Speaker 02:
who's you know but that would be a that's a different issue though right i mean no i don't think so because he could say that's how this is affecting my client right and the types of emotional distress that he was could experiencing and how often it would be and that would help to give the jury and even better then i ask you know you you're and we'll give you time for a bottle but as to the

[00:12:06] Speaker 03:
the judgment notwithstanding the verdict, we're reviewing that to see whether there's basically any evidence that would support the jury verdict, right?

[00:12:15] Speaker 03:
Yes, Your Honor.

[00:12:16] Speaker 03:
Okay.

[00:12:16] Speaker 03:
But then in the alternative, the district court granted a new trial, and that was as to all issues.

[00:12:23] Speaker 03:
We're reviewing that for abuse of discretion.

[00:12:25] Speaker 03:
Is that correct?

[00:12:27] Speaker 02:
Yes, but I'm very glad you asked that question, because I wanted to talk to you about the standard of review in this case.

[00:12:33] Speaker 02:
So the district court is not to grant a motion for new trial unless he finds that the evidence presented in favor of the jury's verdict is insufficient and that the evidence against

[00:12:50] Speaker 02:
is actually the clear weight of the evidence, right?

[00:12:54] Speaker 03:
The clear weight of the evidence.

[00:12:55] Speaker 03:
I think that's right, not insufficient.

[00:12:57] Speaker 02:
So now hear me out, because I've got a point to make about abuse of discretion versus de novo.

[00:13:04] Speaker 02:
If you read the district court's opinion, it really reads like he's just weighing

[00:13:10] Speaker 02:
the evidence.

[00:13:11] Speaker 03:
Well, but you can weigh the evidence.

[00:13:13] Speaker 03:
I mean, you have to weigh the evidence for a new trial.

[00:13:15] Speaker 03:
That's what I'm getting at, is it seems like there's two different analysis.

[00:13:19] Speaker 03:
I guess what my point is, these don't rise and fall together.

[00:13:22] Speaker 03:
We could theoretically say that the district court erred as to the judgment notwithstanding the verdict, but then uphold, because it's a different standard, the motion for a new trial.

[00:13:35] Speaker 02:
You absolutely could.

[00:13:38] Speaker 03:
But you're saying there's a legal error.

[00:13:41] Speaker 02:
Yes, I'm saying he legally erred in looking at how to apply the standard.

[00:13:48] Speaker 02:
He made the very violation that Roy versus Volkswagen prohibited.

[00:13:54] Speaker 02:
He said, there's evidence on both sides.

[00:13:57] Speaker 02:
I'm going to pick this one.

[00:13:58] Speaker 03:
Yeah, but the problem with Roy is problematic.

[00:14:01] Speaker 03:
And I will give you that as I mean, I've dug into this a couple of times now because I was on the D's case.

[00:14:07] Speaker 03:
And we are not consistent in how we've laid out the standard.

[00:14:11] Speaker 03:
But I do think that Roy has been clarified

[00:14:14] Speaker 03:
since it came out.

[00:14:15] Speaker 03:
Roy was 1990 and I believe that that has been clarified.

[00:14:22] Speaker 03:
I think if you had Roy and that was standing alone, you'd have a better argument.

[00:14:27] Speaker 03:
But I think we are clear that you have to reweigh the evidence.

[00:14:31] Speaker 03:
And maybe your best argument is, look, these were in equal pose.

[00:14:36] Speaker 03:
There was just as much evidence, 50-50.

[00:14:38] Speaker 03:
So therefore, you couldn't do it.

[00:14:40] Speaker 02:
In a way, that is it, yes.

[00:14:42] Speaker 02:
And I think that when he was weighing the evidence, he didn't actually look at the evidence that was in her favor.

[00:14:49] Speaker 02:
For instance, on the modification issue, he said, well.

[00:14:54] Speaker 03:
You can go ahead and talk about it.

[00:14:57] Speaker 03:
I'm already with you.

[00:15:00] Speaker 01:
But on this point on the judge not crediting evidence, what specifically do you think he didn't credit on the causation?

[00:15:08] Speaker 02:
on the causation.

[00:15:11] Speaker 02:
I think he didn't, well, he didn't credit a lot.

[00:15:14] Speaker 02:
He didn't credit the likelihood of a meltdown.

[00:15:18] Speaker 02:
He didn't credit at all the fact that there has already been harm from not being able to find parking and thus fleeing into traffic.

[00:15:29] Speaker 02:
He didn't credit the fact that there are super loud noises from the construction of the museum close by.

[00:15:34] Speaker 02:
He didn't credit the fact that the streets

[00:15:38] Speaker 02:
both 6th Street below the complex and the one within the complex that he would have to walk down in order to get to the carport space that they offered for the first time at trial.

[00:15:53] Speaker 02:
He didn't credit the fact that that's extremely busy, the fact that it's not lit at night, the fact that it has an uneven sidewalk.

[00:16:02] Speaker 01:
Thank you.

[00:16:03] Speaker 01:
Let me ask you a couple other quick questions.

[00:16:06] Speaker 01:
Does the family still live at the same apartment?

[00:16:08] Speaker 02:
Yes, they do.

[00:16:09] Speaker 01:
Do they have the parking spot or they don't?

[00:16:11] Speaker 02:
They do not.

[00:16:12] Speaker 02:
And one of my requests, if you read my prayer for relief in the reply brief, I very specifically go through what we're requesting.

[00:16:21] Speaker 02:
One of which is, should this panel decide to remand for a new trial?

[00:16:26] Speaker 02:
It's already been five years since she first requested that space.

[00:16:32] Speaker 02:
And we would ask that the panel hold that she's entitled to the space pending the new trial and the further proceedings.

[00:16:40] Speaker 01:
Was there a request for that, though, in the district court?

[00:16:43] Speaker 03:
Yes, and the district court denied it.

[00:16:45] Speaker 03:
Well, but that would be injunctive relief, wouldn't it?

[00:16:48] Speaker 03:
It would.

[00:16:50] Speaker 01:
OK.

[00:16:50] Speaker 01:
The last question is if the- Nothing wrong with asking.

[00:16:55] Speaker 01:
If the jury verdict hypothetically were reinstated, what other proceedings, if any, would remain in the district court?

[00:17:03] Speaker 01:
Attorney's fees motion?

[00:17:04] Speaker 02:
Attorney's fees.

[00:17:07] Speaker 02:
On a selfish note, if you remand

[00:17:10] Speaker 02:
for a new trial, because that's kind of splitting the baby, I would really appreciate if you could denote who prevailed on appeal, so that maybe I can apply for attorney's fees.

[00:17:22] Speaker 03:
Fair enough, although I'm not sure that if we split the baby, anyone would prevail.

[00:17:28] Speaker 02:
I mean, it's hard to say you would prevail if- Well, I'm going from getting absolutely nothing to getting another shot.

[00:17:33] Speaker 03:
Yeah.

[00:17:35] Speaker 03:
All right.

[00:17:36] Speaker 03:
All right.

[00:17:36] Speaker 03:
We'll give you some time for rebuttal.

[00:17:37] Speaker 02:
Thank you.

[00:17:38] Speaker 02:
Thank you so much.

[00:17:49] Speaker 00:
Good morning and may it please the court, Stephen Raola on behalf of the APLEs.

[00:17:55] Speaker 00:
I'd like to use my time to make three different points.

[00:17:58] Speaker 00:
The first is to just point out that when Judge Bress pressed opposing counsel to point to actual evidence in the record, I didn't hear a single citation to any testimony that was made in the record.

[00:18:10] Speaker 00:
I heard characterizations of testimony.

[00:18:12] Speaker 00:
Some of that testimony is not there.

[00:18:14] Speaker 00:
For example, the story of the CR bolting into traffic.

[00:18:19] Speaker 00:
That happened once, according to the testimony in the record, on pages 323 to 324.

[00:18:26] Speaker 00:
That's what prompted her to request the parking space.

[00:18:29] Speaker 00:
There was a day where she didn't park on the complex.

[00:18:31] Speaker 00:
There was a loud noise and CR bolted.

[00:18:33] Speaker 04:
But you're not contesting the fact that if he were to be given the space closest to his unit, it would be a safer place to park with less of a chance that he would run out into traffic, are you?

[00:18:45] Speaker 04:
As I understand it, it's a grassy knoll next to the parking space.

[00:18:49] Speaker 00:
We certainly wouldn't dispute that.

[00:18:51] Speaker 00:
And to be clear, we offered the

[00:18:52] Speaker 04:
the appellant the nearest reserve parking space which is a very short walk from the unit.

[00:19:02] Speaker 00:
We also offered the ability to move to a unit that was directly adjacent to a reserve parking space.

[00:19:08] Speaker 04:
What's wrong with just giving her the space that you put the cone up for 260 days for your security officer?

[00:19:16] Speaker 00:
Well, the issue was that the appellant requested a quote unquote assigned handicapped parking space and she attached the blue handicapped placard

[00:19:27] Speaker 04:
referred to handicapped spaces repeatedly, and my client was understandably... Did your client ever tell her it's going to cost you $7,500 that you're going to have to pay for if we make out a full handicapped parking space?

[00:19:39] Speaker 00:
The cost, to be clear, Your Honor, wasn't the concern.

[00:19:43] Speaker 00:
The concern was discriminating.

[00:19:45] Speaker 04:
Under the law, the law says that if it's an accommodation that has a price tag associated with it, then the requester has to pay.

[00:19:53] Speaker 04:
Did your client ever tell Mrs. Jaffe that?

[00:19:58] Speaker 00:
According to the record that that conversation did not happen your honor, but

[00:20:03] Speaker 04:
So I want to answer to my earlier question.

[00:20:05] Speaker 04:
Why couldn't, if you're willing to give a reserve space to him elsewhere, what's wrong with giving him the reserve space right next to his unit that's closest?

[00:20:15] Speaker 00:
That wasn't what was requested, your honor.

[00:20:17] Speaker 00:
What was requested was an assigned handicapped parking space that no other handicapped person could use.

[00:20:23] Speaker 01:
I don't know.

[00:20:24] Speaker 01:
This, at best, is a misunderstanding.

[00:20:27] Speaker 01:
I don't know that it required four years of litigation to realize that, though.

[00:20:30] Speaker 00:
Well, there were multiple conversations with the other side trying to offer something that would accommodate CR and the child.

[00:20:42] Speaker 03:
You'll have a chance for rebuttal.

[00:20:43] Speaker 03:
Go ahead.

[00:20:44] Speaker 00:
uh... there were a number of conversations and all all every response that we got was a demand for millions of dollars this is the third lawsuit between the plaintiff's mother in the building focusing on a parking space and i'd just don't understand

[00:21:02] Speaker 04:
why you couldn't have cut this case off before it ever got to trial by giving Mrs. Joffe the space closest to her unit if you're willing to give her a reserve space.

[00:21:17] Speaker 04:
I just don't understand your position.

[00:21:19] Speaker 00:
There were multiple conversations.

[00:21:22] Speaker 00:
A number of them are documented and part of the record, some of them are not.

[00:21:25] Speaker 00:
But we tried repeatedly.

[00:21:27] Speaker 03:
But you're still not answering Judge Tallman's question, which

[00:21:31] Speaker 03:
I mean, we all have it.

[00:21:33] Speaker 03:
This seems so easy.

[00:21:35] Speaker 03:
We look at this.

[00:21:36] Speaker 03:
Why didn't this just get resolved?

[00:21:37] Speaker 03:
Give her the parking space right out there.

[00:21:39] Speaker 03:
Now, maybe the response is the plaintiff is being difficult and wants a million dollars.

[00:21:43] Speaker 03:
Okay, that's one response.

[00:21:45] Speaker 03:
But this is so easy to resolve.

[00:21:48] Speaker 03:
Give her the parking spot right out in front.

[00:21:52] Speaker 03:
We're done.

[00:21:54] Speaker 03:
Can you do that?

[00:21:55] Speaker 03:
Can we give her the parking spot out in front?

[00:21:59] Speaker 03:
No handicap.

[00:22:01] Speaker 03:
Just reserve the parking spot for her right out front of her apartment.

[00:22:04] Speaker 03:
You already said she could move and you'd give her one.

[00:22:07] Speaker 03:
So why can't you just, why are you making her move?

[00:22:09] Speaker 00:
We're not making her well that was the offer on the table was move and then we'll give you the one out front I think this is I'm asking the same what was directly next to a reserve parking space that to take a broader step back and try and answer the question Managing a building like this is a lot more complicated than you would think there's a number of residents in the building that have disabilities that have handicaps that have all sorts of issues and

[00:22:34] Speaker 04:
for we've we've had requests for reserve spaces directly outside someone's unit before there's never been a request like in this case for a reserved handicapped parking space outside a unit half a million dollars or more in legal expenses that have been run up over a four-year period of time when it could have been resolved by simply putting a blue sign up saying this is reserved for CR I just

[00:23:04] Speaker 04:
Is your client unwilling to do that?

[00:23:07] Speaker 04:
Can you not settle this case today?

[00:23:09] Speaker 04:
Step out in the hall with opposing counsel and get this thing resolved?

[00:23:14] Speaker 00:
We've done everything possible to settle this case and every time... Did you make that offer?

[00:23:18] Speaker 00:
We've made a number of offers, Your Honor.

[00:23:21] Speaker 04:
What you say is that you didn't make the offer because it would require the build out of a handicapped space, and it seems to me that's not what she's willing to settle for.

[00:23:30] Speaker 04:
She's willing to settle for that space reserved in his name, period.

[00:23:36] Speaker 04:
End of story.

[00:23:37] Speaker 04:
Why can't you do that?

[00:23:38] Speaker 00:
Well, there was testimony in the record regarding the Pandora's box that could be open where other residents would demand

[00:23:44] Speaker 00:
a space immediately outside of their unit which is why we were trying.

[00:23:48] Speaker 00:
We've never had to litigate them before your honor because when we went to the tenant and tried to offer.

[00:23:59] Speaker 00:
reasonable accommodations like moving the unit or offering the nearest reserve parking space that addressed the issue.

[00:24:08] Speaker 04:
But in this case, the demand that we faced... You keep talking about offering the nearest reserve parking space.

[00:24:13] Speaker 04:
I just analytically can't follow your client's thinking.

[00:24:18] Speaker 04:
If there's a reserve parking space a half mile down the block,

[00:24:23] Speaker 04:
And you're willing to give that to him.

[00:24:25] Speaker 04:
Why can't you give him a reserve parking space that's closest to his apartment?

[00:24:29] Speaker 00:
What am I missing here?

[00:24:31] Speaker 00:
Again, like the rest of LA, there's a limit on the number of spaces.

[00:24:36] Speaker 00:
There's well more residents in space.

[00:24:38] Speaker 04:
But your client's willing to give him a reserve space, just not the one that's next to his apartment.

[00:24:42] Speaker 04:
Is that what this is going to do?

[00:24:43] Speaker 00:
Well, there's two different types of parking.

[00:24:45] Speaker 00:
There's first-come, first-serve parking that's meant to be available for all residents that don't have a reserve space.

[00:24:50] Speaker 04:
You were offering a reserve spot.

[00:24:52] Speaker 04:
But she had to move.

[00:24:54] Speaker 04:
I know your offer.

[00:24:56] Speaker 04:
And I'm asking, well, if you're going to give her a reserve spot down the street, why can't you give her this spot in reserve?

[00:25:02] Speaker 03:
But isn't your answer, whether we agree with it or not, your answer, I think what you're trying to say is because the spot that you're willing to give her was already one allocated as a reserve spot.

[00:25:14] Speaker 03:
and this one is first come first serve so this would be taking it out of the first come first serve.

[00:25:18] Speaker 00:
It would be taking it out and then every other resident who didn't have a reserve parking space might make a similar demand and then ordinary residents wouldn't have a place to spark.

[00:25:27] Speaker 01:
They might make a similar demand, but it's not apparent that those demands would be as justified as the one that's being made here.

[00:25:34] Speaker 00:
Well, to address that issue and to move on to causation and damages,

[00:25:40] Speaker 00:
The testimony in the record from Dr. Curcio on pages 174 to 175 of the excerpts of the record indicated that CR was capable of walking from the reserve parking space to his unit, and that there was no difference between that walk and other walks that he regularly engaged in that were much longer distances.

[00:26:00] Speaker 00:
There was not expert testimony that said that CR couldn't walk.

[00:26:06] Speaker 00:
I think that's an important point to be made here with respect to.

[00:26:10] Speaker 00:
I mean, if you look at the regulation, it says if somebody is unable to walk, a reasonable accommodation might be modifying your reserved parking policy.

[00:26:19] Speaker 00:
But there was no testimony in the record that suggested that, and if anything,

[00:26:24] Speaker 00:
The facts contradicted that, because the mother testified he regularly went on much longer walks that involved going through much greater obstacles, and there was no issue.

[00:26:32] Speaker 03:
There's also not- You're not denying a disability.

[00:26:36] Speaker 00:
No.

[00:26:36] Speaker 03:
No, Your Honor.

[00:26:37] Speaker 03:
And you're not denying that some reasonable accommodation needs to be made.

[00:26:40] Speaker 03:
This is just a debate, a litigation over what that reasonable accommodation needs to be.

[00:26:45] Speaker 00:
Yes.

[00:26:46] Speaker 00:
And for why we're here today, it's the evidence on causation and evidence, and that there's not- Turning back to that,

[00:26:53] Speaker 03:
What's difficult about your case when it comes to the JNOV is the standard is so high.

[00:26:59] Speaker 03:
We're reviewing that de novo and we have to find that there is absolutely no evidence that would support the jury's finding.

[00:27:06] Speaker 03:
I have a really hard time with any of that, quite frankly, because, I mean, we could view the evidence, you know, maybe we would have found it differently as a fact finder, but that's not what we're doing.

[00:27:18] Speaker 03:
Explain to us why there's absolutely no evidence here that would support either causation or damages.

[00:27:27] Speaker 00:
Of course.

[00:27:28] Speaker 00:
Two parts to that answer.

[00:27:30] Speaker 00:
The first is to just frame what happened in the proceedings below and go through the testimony.

[00:27:35] Speaker 00:
And then the second is the context of the briefing and the arguments that they've presented.

[00:27:39] Speaker 00:
So seven witnesses testified in the underlying trial.

[00:27:43] Speaker 00:
Four were employees of my client that offered no testimony that supports the jury's findings on whether the reserve parking space was a reasonable accommodation, causation, or damages.

[00:27:54] Speaker 00:
The fifth was a Pelley's expert witness who offered uncontradicted evidence that goes against the jury's findings.

[00:28:00] Speaker 00:
That left only two witnesses, the plaintiff's mother and Dr. Eric Curcio.

[00:28:05] Speaker 00:
Now, Dr. Curcio admitted on pages 176 to 177 of the excerpts of the record cleanly that there was no evidence of causation or damages in this case whatsoever.

[00:28:18] Speaker 00:
And I'll read, this is on page 177, the question and answer to Dr. Curcio.

[00:28:24] Speaker 00:
So sitting here today, you're not aware of any specific harm that has actually resulted to CR from not having an assigned handicapped parking space right in front of her unit, correct?

[00:28:34] Speaker 00:
Answer, correct.

[00:28:35] Speaker 00:
So Dr. Curcio is now out.

[00:28:37] Speaker 00:
And all we have left is the plaintiff's mother, Tracy Joffe, who testified on page 330 of the excerpts of the record that there was no way to predict what might upset her son, which meant she'd be speculating as to what upset her son on particular occasions.

[00:28:54] Speaker 00:
There are a couple conclusory statements that Ms.

[00:28:56] Speaker 00:
Joffe makes, but a number of them are not tied in any way to the issue of causation, which a parent needs to do, and they're not supported by surrounding facts.

[00:29:09] Speaker 00:
For example, the bolting into traffic, that happened before the space was requested.

[00:29:15] Speaker 00:
So there's no connection between that and harm from us not offering the reserve space.

[00:29:22] Speaker 00:
before the space was requested.

[00:29:23] Speaker 00:
If you walk through all the evidence on that, that's.

[00:29:26] Speaker 03:
But why couldn't that support the idea that if the request isn't granted, there would be harm from not granting the request?

[00:29:33] Speaker 00:
Well, that something could be the cause.

[00:29:36] Speaker 00:
Your Honor is not sufficient to sustain a jury's verdict.

[00:29:38] Speaker 00:
And we're not, if the plaintiff.

[00:29:41] Speaker 03:
Well, no, I think it actually is.

[00:29:42] Speaker 03:
I mean, her testimony, as I understand it, I mean, you're saying, well, you can't be warranted.

[00:29:51] Speaker 03:
You can't award damages based on that prior incident.

[00:29:55] Speaker 03:
I give you that, but I don't understand why that evidence couldn't be used to show causation to say, hey, this parking elsewhere was causing this and therefore it could cause it in the future.

[00:30:10] Speaker 03:
You're saying she had to come in and say this happened repeatedly.

[00:30:14] Speaker 00:
I'm not saying that, Your Honor.

[00:30:16] Speaker 00:
I'm saying that there are no facts on the record documenting a single instance.

[00:30:20] Speaker 00:
For example, we came home very late.

[00:30:24] Speaker 00:
We had to park 60 seconds away.

[00:30:27] Speaker 00:
40 seconds into the walk, there was a loud noise.

[00:30:30] Speaker 00:
And my son became dysregulated and was emotionally distressed.

[00:30:34] Speaker 00:
And if we had the closer space, that wouldn't have happened.

[00:30:38] Speaker 00:
There's no factual testimony.

[00:30:40] Speaker 00:
There's conclusory statements.

[00:30:41] Speaker 00:
And this Court has made clear.

[00:30:42] Speaker 00:
that threadbare conclusory statements are not enough.

[00:30:46] Speaker 00:
And the same is true of just speculation.

[00:30:48] Speaker 00:
The jury's not permitted to speculate.

[00:30:50] Speaker 00:
So that something could possibly be the cause, but maybe doesn't happen, isn't enough.

[00:30:56] Speaker 00:
And to turn it now to the issue of damages,

[00:31:02] Speaker 00:
On numerous occasions in the rule 50 brief briefing and in their opening brief, appellant has been asked to point to substantial evidence that supports the jury's finding on damages.

[00:31:12] Speaker 00:
All they were able to identify is 1,300 days that she wasn't in the space.

[00:31:17] Speaker 00:
The problem with that is the plaintiff's mother testified at trial that she regularly parked in the space.

[00:31:25] Speaker 00:
It was available first come first serve, and she parked there regularly.

[00:31:30] Speaker 03:
All that does, it seems to me, is go to the amount of damages.

[00:31:33] Speaker 03:
I mean, clearly there were some days out of those 1,300, and I think the jury would have been entitled to make this inference that she couldn't have parked there.

[00:31:43] Speaker 03:
And if they thought that there was causation, which I understand you don't believe, then they could have awarded some amount of damages.

[00:31:51] Speaker 00:
There there was no testimony to a specific day in a specific instance tied specifically to the parking space and if the basis of damages according to appellant in the rule 50 be briefing all they pointed to was statements in closing statement statements that supported the jury's verdict then

[00:32:09] Speaker 00:
the jury would be speculating as to number of days when it issued that award.

[00:32:12] Speaker 00:
Was it one day that she couldn't go out?

[00:32:14] Speaker 00:
Was it one day when she couldn't get the space that she wanted?

[00:32:18] Speaker 00:
Was it 1,000 days?

[00:32:19] Speaker 00:
We don't know.

[00:32:19] Speaker 00:
The jury didn't know, which rebuts the presumption that you have that the jury followed the instructions, because the jury had no way of assessing damages under the theory that they articulated a trial, which meant they were just guessing how many days and following the improper instruction.

[00:32:37] Speaker 00:
And to kind of tie this

[00:32:39] Speaker 00:
I mean, look at the brief that the appellant filed in this court.

[00:32:43] Speaker 00:
On causation, there are four pages of testimony that they actually cite to.

[00:32:47] Speaker 00:
There's a lot of citing to characterizations of the record, but there's not any citation anywhere in there to actually quote, and a lot of times the characterizations don't line up with what happened.

[00:32:58] Speaker 00:
There's four pages of testimony on causation that they cite to.

[00:33:01] Speaker 00:
Two of them are the bolting before the space was requested.

[00:33:05] Speaker 00:
Um, the other two pages are this general testimony that this is what happens when my son's upset, which isn't tied to the parking space.

[00:33:13] Speaker 00:
And then the other is this testimony.

[00:33:16] Speaker 00:
He gets anxious in the car when we're driving around because we don't know where we're parked, which underscores that the accommodation we offered was reasonable because

[00:33:24] Speaker 00:
The anxiety was caused by not knowing where he would park.

[00:33:27] Speaker 00:
That would have been addressed by a reserved parking space.

[00:33:30] Speaker 00:
On damages, not a single citation anywhere in the record to any evidence that would support the jury's finding, which brings me back to the beginning of my argument, which is when Judge Bress asked what evidence is there that supports causation or damages, I didn't hear a single citation to any testimony.

[00:33:48] Speaker 00:
Unless this court has any questions about any other issues, I'm going to sit back down.

[00:33:56] Speaker 00:
But we would certainly say that for the remainder of the issues, there was no abuse of discretion.

[00:34:03] Speaker 00:
And there's no basis to accuse Judge Wright of being biased or incapable of handling a new trial when he reversed himself over the course of this case in his own motion to eliminate rulings.

[00:34:14] Speaker 00:
Thank you.

[00:34:24] Speaker 02:
I just want to address a couple of things, and I apologize for interrupting counsel.

[00:34:28] Speaker 04:
I appreciate it.

[00:34:29] Speaker 02:
Go ahead.

[00:34:31] Speaker 02:
Under the rules of professional conduct in California, it is absolutely forbidden to discuss what happens in settlement negotiations.

[00:34:40] Speaker 03:
Our conversations probably went a little too far.

[00:34:42] Speaker 02:
But since he has brought it up, let me tell you.

[00:34:47] Speaker 03:
that i have tried repeatedly to settle this case and so did trial counsel they have made it an absolute requirement that she moved out of the complex in order to settle i think we've gotten that and we probably should set that aside just i think you've heard it from all of us and we never know whether which party is being difficult

[00:35:09] Speaker 03:
It just seems like there is an easy way to resolve this.

[00:35:13] Speaker 02:
Oh, I agree.

[00:35:14] Speaker 03:
I hope that is made clear to all parties.

[00:35:18] Speaker 03:
See if you can do something.

[00:35:19] Speaker 03:
Absolutely agree.

[00:35:21] Speaker 03:
The best case scenario for you is you're going to get a new trial.

[00:35:26] Speaker 03:
And is that really what you want?

[00:35:28] Speaker 03:
Or do you want to settle this out?

[00:35:30] Speaker 03:
So anyway, keep going.

[00:35:32] Speaker 02:
Thank you.

[00:35:36] Speaker 02:
essentially faulted Ms.

[00:35:38] Speaker 02:
Joffe's testimony and said that it cannot count for anything because she didn't say on a very specific date what happened.

[00:35:45] Speaker 02:
And on a, you know, 40 seconds into the walk he did this.

[00:35:50] Speaker 02:
But if you look at her testimony, you read her testimony, she does tie him being upset to not only not knowing where we'd park, and I will concede,

[00:36:02] Speaker 02:
that if she was given a reserve spot someplace else, then he would at least know where they were going to park.

[00:36:09] Speaker 02:
But that does not resolve all of the other issues with walking such a long distance for him and down the particular path that they had chosen, which involves a lot of traffic itself.

[00:36:22] Speaker 04:
Well, he walks longer distances, doesn't he, like when he goes to the pool?

[00:36:26] Speaker 02:
He does sometimes.

[00:36:28] Speaker 02:
And so let me address that.

[00:36:31] Speaker 02:
One of the things about autism is, and his specific case, which Dr. Curcio testified to, is that when he's having a good day and he's not been in the car, he can walk on familiar territory and they can go down to the pool.

[00:36:47] Speaker 02:
But the car itself is a trigger.

[00:36:51] Speaker 02:
Just going anywhere in the car is a trigger.

[00:36:54] Speaker 02:
It tends to make him upset.

[00:36:57] Speaker 03:
What does that have to do with the parking spot?

[00:37:00] Speaker 03:
I'll tell you.

[00:37:01] Speaker 03:
OK, now I think we're hearing what counsel is objecting to, that a lot of this testimony, you're just telling us.

[00:37:10] Speaker 03:
I don't think this testimony is in the record.

[00:37:13] Speaker 03:
No, no, it really is in the record.

[00:37:15] Speaker 03:
Show us where it's in the record.

[00:37:16] Speaker 02:
OK.

[00:37:17] Speaker 02:
Well, it's throughout our brief, but if you look

[00:37:21] Speaker 02:
at volume 3, ER, page 165, page 337, page 330.

[00:37:32] Speaker 02:
I said 337, but I should include 336 in that.

[00:37:40] Speaker 02:
And page 340, you will find quite a bit also.

[00:37:50] Speaker 02:
3ER, I already said 165 and 330, volume 2ER, pages 98 to 99, volume 3ER, page 244, and pages 333 to 337.

[00:38:08] Speaker 02:
Also addressing the loud noises nearby from the construction museum is volume 3, page 259.

[00:38:18] Speaker 02:
volume 3 er pages 326 to 327 and page 157 talks about his coordinating movements and how he can fall easily on the uneven pavement which by the way is a reason that she didn't want to ramp

[00:38:37] Speaker 02:
She never wanted them to build a ramp.

[00:38:39] Speaker 02:
That would actually make it harder for him.

[00:38:42] Speaker 02:
That makes it an uneven surface that he's got to get over to get out of the car.

[00:38:47] Speaker 04:
But she'd be happy if they just marked the space and said this is reserved for CR.

[00:38:52] Speaker 02:
Yes.

[00:38:53] Speaker 04:
All right.

[00:38:54] Speaker 02:
But they can't move because the last time they moved, he had to be hospitalized, partial hospitalization, for six months, which Dr. Curcio said.

[00:39:03] Speaker 02:
And so the jury found that wasn't reasonable.

[00:39:06] Speaker 02:
The district court found that wasn't reasonable.

[00:39:08] Speaker 02:
And they did not appeal that finding.

[00:39:10] Speaker 04:
So would you be willing to take another run at settlement if we took this case under advisement for 60 days?

[00:39:17] Speaker 02:
as long as they don't insist that she has to move.

[00:39:20] Speaker 02:
But that's a non-starter.

[00:39:22] Speaker 04:
All right.

[00:39:23] Speaker 04:
All right.

[00:39:23] Speaker 04:
Counsel, would your client be willing to take another run at trying to settle this case if we sit on it for a couple of months?

[00:39:32] Speaker 00:
Yes, Your Honor.

[00:39:34] Speaker 02:
In the meantime, could you consider granting her use of the space?

[00:39:39] Speaker 02:
Just in case.

[00:39:40] Speaker 03:
We'll consider it.

[00:39:41] Speaker 03:
Thank you, counsel.

[00:39:41] Speaker 02:
Thank you very much.

[00:39:42] Speaker 02:
Thank you.

[00:39:43] Speaker 03:
Thank you to both counsel for your arguments in the case.