[00:00:02] Speaker 04:
Good morning.

[00:00:03] Speaker 04:
Mike Laura on behalf of 7-Eleven.

[00:00:05] Speaker 04:
If I could reserve two minutes for rebuttal.

[00:00:07] Speaker 00:
Oh, just watch the clock.

[00:00:10] Speaker 04:
This is a case involving damages.

[00:00:15] Speaker 04:
Now, under the ADA, there are no damages.

[00:00:18] Speaker 04:
Under California law, there are injunctive relief and damages.

[00:00:22] Speaker 04:
Under the ADA, there's only injunctive relief.

[00:00:24] Speaker 04:
And there's a difference between the standing for injunctive relief and standing for damages under California law.

[00:00:33] Speaker 04:
And so this is solely under California law that we're dealing with here today.

[00:00:38] Speaker 02:
Standing is one of those words that gets used in lots of different ways.

[00:00:42] Speaker 02:
And standing in federal court is governed by, as the Supreme Court has recently directed us, by whether there's a case or controversy, Article III standing.

[00:00:53] Speaker 02:
The California Supreme Court doesn't have to deal with that concept.

[00:00:56] Speaker 02:
And so as I read their opinion, standing is being used basically as a stand-in for is there liability under the UNRRAC?

[00:01:07] Speaker 02:
And so the California Supreme Court has told us that, yes, this plaintiff or a plaintiff in this person's position has given us rules to apply in determining whether or not there's liability for this person.

[00:01:24] Speaker 02:
But although the California Supreme Court uses the term standing, I would pause before using it because it means something a little different.

[00:01:31] Speaker 04:
I agree, Your Honor.

[00:01:32] Speaker 04:
I agree.

[00:01:33] Speaker 04:
It's a term of art that they use simply means, can you recover?

[00:01:40] Speaker 04:
Do you have a case?

[00:01:41] Speaker 04:
And so I agree with that.

[00:01:43] Speaker 04:
But be that as it may, there are different rules for

[00:01:48] Speaker 04:
bringing an injunctive claim and different abilities to bring injunctive claim and different rules and requirements for bringing a damage claim under California law.

[00:01:56] Speaker 04:
Under California law, you're required to have an intent to go to a place of public accommodation, to be a customer, to utilize the goods and services as any other customer would utilize them.

[00:02:09] Speaker 00:
Where is that?

[00:02:10] Speaker 00:
Where is a case that holds you need to show intent when there's actually been a transaction that's actually occurred?

[00:02:18] Speaker 04:
Antonini finds that.

[00:02:21] Speaker 04:
Rylers Craft makes that distinction.

[00:02:25] Speaker 04:
Ray Craft versus Lee, California case makes that.

[00:02:30] Speaker 02:
Do any of those involve customers who actually consummated a transaction?

[00:02:35] Speaker 04:
Antonini did.

[00:02:37] Speaker 04:
And that's out of this circuit, out of this court's determination.

[00:02:42] Speaker 04:
The plaintiff there made eight visits.

[00:02:44] Speaker 04:
Five of them, it was determined on summary judgment to begin with.

[00:02:48] Speaker 04:
Five of those, it was agreed that they were bona fide purchaser, they made purchases.

[00:02:55] Speaker 04:
The other three, it was claimed that you were there as a plaintiff.

[00:02:59] Speaker 00:
Right, so that the finding of a needing intent didn't apply to the five where there was an actual transaction, did it?

[00:03:06] Speaker 04:
Well, but the three also, there were transactions.

[00:03:08] Speaker 04:
As you read the subsequent court ruling on that, there were purchases made and the appellate court recognized that plaintiff in their brief argued there were purchases made during these three transactions, that they were also there for litigation purposes.

[00:03:24] Speaker 03:
But part of that claim was about wheelchair access and being able to look at the, I guess, the Chipotle experience, right, being able to see the food being prepared.

[00:03:34] Speaker 03:
I don't know if one can overread that case into, because there are other cases that say if a customer has transacted, that's sufficient to have standing under the UNREACT.

[00:03:48] Speaker 03:
I mean, the White, the California Supreme Court says that blank, just without any qualifications.

[00:03:57] Speaker 04:
But White actually says that at trial, they've alleged enough.

[00:04:02] Speaker 04:
They've alleged the intent.

[00:04:04] Speaker 04:
At trial, they can claim the intent was not a legitimate intent.

[00:04:08] Speaker 00:
Because there are no transactions occurring in that case.

[00:04:11] Speaker 04:
But what you're saying then is that if the barrier actually prevented them,

[00:04:19] Speaker 04:
from transacting business, then we're gonna hold them to a higher standard than if it was some technical violation that somebody went to this location.

[00:04:26] Speaker 03:
No, I think what White is saying is if you've transacted, you've overcome the threshold of whether you're presenting yourself to the business, but if you're in an online business situation as White is, as other, you know, thirst in other cases, it's a little bit harder to decipher when you cross over into standing by visiting a website.

[00:04:47] Speaker 03:
What more do you have to do?

[00:04:49] Speaker 03:
And that's what White was grappling with.

[00:04:51] Speaker 03:
But we don't have that here.

[00:04:52] Speaker 03:
We have a person, that plaintiff who came and transacted.

[00:04:57] Speaker 03:
So I'm not... Go ahead.

[00:05:00] Speaker 04:
But the language is bonafide customer.

[00:05:03] Speaker 04:
Not just a customer, but a bonafide customer.

[00:05:06] Speaker 02:
Well, he bought something, right?

[00:05:07] Speaker 02:
7-Eleven got money from him.

[00:05:10] Speaker 02:
That sounds to me like it's pretty bona fide.

[00:05:13] Speaker 02:
There was an actual transaction.

[00:05:14] Speaker 04:
But it's an intent to be a bona fide customer.

[00:05:19] Speaker 00:
I think you're confusing motive with intent.

[00:05:23] Speaker 00:
So can you show me where in California's Supreme Court case law they say that motive for the transaction can defeat

[00:05:34] Speaker 00:
the showing when there has been an actual transaction.

[00:05:38] Speaker 04:
Not in California, the Supreme Court law, no.

[00:05:41] Speaker 04:
In this circuit's case law, yes, not in.

[00:05:45] Speaker 02:
Well, I'm not even sure.

[00:05:46] Speaker 02:
I keep saying Antonetti, but I think I'm losing a syllable in there someplace.

[00:05:53] Speaker 02:
Antonetti.

[00:05:54] Speaker 02:
It draws a distinction.

[00:05:56] Speaker 02:
It had to remand the damage award because the damages were awarded for

[00:06:01] Speaker 02:
both kinds of visits, but it didn't seem to me to suggest that for the, what was it, five, I forget which was five and which was three, but the actual transaction visits, there was no statement that I saw there that said, well, because he had an underlying motive that may have helped get him into that facility.

[00:06:23] Speaker 02:
He can't collect damages under the California Act for that.

[00:06:27] Speaker 02:
It seemed to me it said he could collect damages for the ones where there were actual transactions.

[00:06:32] Speaker 04:
But the other three there were actual transactions, and he wasn't able to collect for those.

[00:06:41] Speaker 03:
Is that so?

[00:06:42] Speaker 03:
I thought he just visited in order to... He performed transactions in those three sort of litigation-related visits?

[00:06:50] Speaker 04:
Yes, he did.

[00:06:52] Speaker 04:
he did and then the court identifies that as it says in their in the appellant

[00:06:57] Speaker 04:
brief, they mention that what they say is the defense hasn't argued that those purchases were made for an ulterior or fraudulent matter.

[00:07:08] Speaker 04:
And then if you read the subsequent case law or the subsequent district court ruling, they specifically say, in all transactions, purchases, in all visits, purchases were made.

[00:07:18] Speaker 02:
So we have a reading from it.

[00:07:19] Speaker 02:
It says, on those visits when he was not, right.

[00:07:23] Speaker 02:
Finger just hit it, so it jumped away.

[00:07:26] Speaker 02:
On those visits when he was not seeking to purchase food or to have the Chipotle experience, Antonietti cannot recover money damages under the California Act.

[00:07:37] Speaker 02:
Here, the plaintiff was seeking and did consummate a transaction.

[00:07:44] Speaker 02:
So how does the case you have cited, which I mangled the name of, support your position?

[00:07:58] Speaker 04:
It supports my position in that the court is finding that the intent is to be a customer.

[00:08:04] Speaker 02:
And if you actually buy something, it seems to me that's intent to be a customer.

[00:08:08] Speaker 02:
Now, he may have a motivation to buy at this location, but I haven't seen anything in either our decisions or California law that suggests when there is an actual transaction.

[00:08:19] Speaker 02:
not merely visiting so I can file a lawsuit, but it is an actual transaction that there aren't damages available under California law.

[00:08:27] Speaker 02:
I haven't seen that case.

[00:08:28] Speaker 02:
And this is what you pointed it to, but I don't see support in this case for that proposition.

[00:08:35] Speaker 02:
I am out of time if I'm.

[00:08:36] Speaker 00:
May I answer the question?

[00:08:38] Speaker 04:
Your Honor, the cases, this is for damages.

[00:08:46] Speaker 04:
California legislature

[00:08:49] Speaker 04:
Instigated this so that persons that are actually aggrieved can recover damages This this puts it on its head someone goes to a location.

[00:08:59] Speaker 00:
So if you're gonna Just repeat your argument, then we'll give you two minutes on rebuttal unless you have a case site that you want to offer I don't have a case site Okay Once you save your time, then we'll give you two minutes on rebuttal.

[00:09:12] Speaker 04:
Thank you

[00:09:24] Speaker 01:
Good morning, Your Honor.

[00:09:25] Speaker 01:
Tonya Moore, attorney for the appellee.

[00:09:34] Speaker 01:
The court pretty much addressed my oral argument.

[00:09:39] Speaker 01:
That's what I was going to say.

[00:09:42] Speaker 01:
So intention or intent is what are you going to do, motivation is why.

[00:09:46] Speaker 01:
And standing does not deal with motivation, whether it's federal or state.

[00:09:54] Speaker 01:
Why a person bought something would be a standard very difficult to ascertain if not impossible.

[00:10:03] Speaker 01:
I guess you can come up with some very narrow hypothetical where that can be done, but in general,

[00:10:12] Speaker 01:
human beings typically have many reasons and motives behind a single intent.

[00:10:17] Speaker 02:
Well, you do have a finding of fact here from the district court that basically says he was looking to find a defendant he could sue.

[00:10:25] Speaker 02:
So what do we make of that?

[00:10:28] Speaker 01:
So even if Mr. Gilbert's and the finding was that his primary motivation, not the sole motivation, but the primary motivation,

[00:10:40] Speaker 01:
was to hunt for IDA violations.

[00:10:47] Speaker 01:
Do we know what he bought?

[00:10:48] Speaker 01:
Yes.

[00:10:49] Speaker 01:
I do not recall, Your Honor, it was some kind of a, you know, either a drink, I think it was a drink on one occasion, on the other occasion I think it was a lottery ticket.

[00:11:00] Speaker 02:
What I'm getting to really is that if his, that he bought something doesn't necessarily mean his sole motivation.

[00:11:09] Speaker 02:
wasn't to find a defendant.

[00:11:12] Speaker 02:
I mean, if he thinks, I've got to get a transaction in order to qualify for my damage claim, and goes in and buys a pack of gum, I don't know what the cheapest thing at 7-Eleven is, the drink might be it, get a big gulp for whatever it costs.

[00:11:31] Speaker 02:
That doesn't really change his motivation.

[00:11:36] Speaker 02:
answer a somewhat different question than California law requires, but is there a logical reason why the simple fact that a transaction was consummated should cause us to disregard that he was looking for a lawsuit?

[00:11:55] Speaker 01:
I couldn't find any case in California that

[00:12:01] Speaker 01:
required determination on the issue of motivation and why somebody did what they did.

[00:12:07] Speaker 01:
In 10, is... I mean, it comes up in federal court under the ADA with regard to injunction.

[00:12:18] Speaker 02:
We don't have injunction here because the fixes were already put in.

[00:12:25] Speaker 02:
It may be that California law doesn't require or doesn't exclude a claim by somebody whose intent is to find a lawsuit.

[00:12:33] Speaker 02:
And I understand that that's the argument you're making.

[00:12:38] Speaker 02:
But I'm not sure it's so clear that the simple fact of buying a big gulp means that the motivation wasn't entirely to find a lawsuit.

[00:12:56] Speaker 01:
How do you determine motivation?

[00:12:59] Speaker 02:
Oh, we do it all the time.

[00:13:00] Speaker 02:
In criminal trials in particular, we have to.

[00:13:02] Speaker 02:
And the jury decides as a finding of fact.

[00:13:05] Speaker 02:
And in this case, I mean, you didn't challenge the district court's finding of fact, which I thought was remarkably blunt.

[00:13:17] Speaker 02:
The court does not believe he would have visited the store on either day, but for his desire to find violations of the ADA and underact in order to obtain a settlement or damages.

[00:13:29] Speaker 02:
So if that's the finding of fact, the court found a lack of intent to do anything other than find a lawsuit.

[00:13:39] Speaker 01:
Was the court referred to it even in that ruling as a primary?

[00:13:46] Speaker 01:
So there may be a secondary or a tertiary.

[00:13:50] Speaker 01:
So how many motivations, how many reasons why Mr. Gilbert bought that?

[00:13:55] Speaker 01:
Maybe he was hungry.

[00:13:56] Speaker 01:
Maybe he was thirsty.

[00:13:58] Speaker 02:
I'm going to stop anyway and might as well get my drink.

[00:14:01] Speaker 02:
I get that.

[00:14:02] Speaker 02:
But if the court says and finds as a finding of fact that's not challenged now, he wouldn't have visited the store but for his desire to find a lawsuit.

[00:14:12] Speaker 02:
to extract damages or a settlement.

[00:14:14] Speaker 02:
But the law might disfavor that.

[00:14:18] Speaker 02:
And indeed, it has within our court in ADA injunction cases.

[00:14:25] Speaker 02:
Now we're talking about the California statute, and I acknowledge that's different.

[00:14:29] Speaker 02:
So that's why I come back to the question, why should we understand California law to say the fact that he wouldn't have visited but for the search for a lawsuit

[00:14:39] Speaker 02:
buying the pack of gum or buying the lottery ticket or whatever it was he bought should override that.

[00:14:46] Speaker 02:
Doesn't that encourage lawsuits in a way the law may not want to encourage?

[00:14:51] Speaker 01:
There is no case that would support that interpretation.

[00:14:56] Speaker 01:
And when we're talking about standing state federal,

[00:15:03] Speaker 01:
We're talking about concrete facts, not conjectural facts.

[00:15:07] Speaker 02:
Mr. Gilbert here... I'm not talking about conjecture.

[00:15:09] Speaker 02:
I'm talking about a finding of fact by the district court that is unchallenged.

[00:15:14] Speaker 01:
Primary reason or primary.

[00:15:17] Speaker 01:
That was the finding that the court made.

[00:15:21] Speaker 01:
But all the California cases that the defendants relied upon here address intent, not motivation.

[00:15:29] Speaker 01:
There is nothing that extends it to motivation.

[00:15:34] Speaker 01:
layer of the onion here that makes these cases possible.

[00:15:43] Speaker 01:
So you basically are

[00:15:44] Speaker 03:
asked to extend this and dig in more than... So I take it your argument, if I understand it, is if someone has different motivations but they transact with the business, that's enough to pass a threshold.

[00:16:01] Speaker 03:
You don't know of any case where an additional litigation motivation would not disqualify someone from standing under the UNRWA Act.

[00:16:10] Speaker 03:
Is that what you're saying?

[00:16:11] Speaker 01:
No, because in a brick and mortar establishment, it's really difficult to come with a scenario where somebody comes in, makes a purchase, and that does not equal the intent to make the purchase and be in a bonafide customer.

[00:16:26] Speaker 01:
It just would not make sense.

[00:16:32] Speaker 01:
In the cases, all the cases that we deal on with,

[00:16:35] Speaker 01:
are about situations where plaintiffs never made the purchase or avail themselves of services.

[00:16:41] Speaker 01:
So therefore the intent requirement was not clear in those cases for the court.

[00:16:48] Speaker 01:
And the court therefore wanted to know whether or not it was met.

[00:16:55] Speaker 03:
I mean, I guess I would say, I know the district court made that finding a fact and it's uncontested.

[00:17:03] Speaker 03:
I'm just not sure what legal significance to attach to it, if anything, because as I read White, White discusses another case called Quar, which was about a plaintiff that went to several car washes and asked for, you know, he was challenging a discriminatory pricing based on gender, and then he promptly sues afterwards.

[00:17:23] Speaker 03:
And the fact that he seemed to have a litigation motivation

[00:17:27] Speaker 03:
excuse me, in addition to those visits, did not disqualify him from standing under the UNREACT.

[00:17:35] Speaker 03:
So White seems to talk about cases where an additional litigation motive doesn't bar someone from being able to pursue UNREACT claims.

[00:17:44] Speaker 01:
Yes, exactly.

[00:17:45] Speaker 01:
And the court, even though the court made this finding, the court found that also that didn't have any legal significance for decision to award damages, because that was not a requirement.

[00:18:02] Speaker 01:
Whether it's primary, secondary, motivation, that was not a standard that had to be met.

[00:18:12] Speaker 01:
Now, there was a discussion about Adonineti in the five versus three visits.

[00:18:21] Speaker 01:
The three visits when the plaintiff went to Chipotle were for the purpose of litigation, preparation for deposition, conducting an inspection, whatever.

[00:18:36] Speaker 01:
It was not the purchase of goods.

[00:18:40] Speaker 01:
So he bought four, those appointments that he had was a lawyer or inspector or whoever.

[00:18:47] Speaker 01:
He would not have gone to the store.

[00:18:49] Speaker 01:
Here we have a plaintiff that went for the first time to 7-Eleven.

[00:18:55] Speaker 01:
And he is being accused of doing this as a pretext.

[00:19:01] Speaker 01:
Well, first of all, he didn't know what he was going to encounter, if anything.

[00:19:09] Speaker 01:
I'm not gonna dispute the court's finding, it is what it is, but I also agree with the court that even if his motivation was to bring the lawsuit and fix the violations and address whatever issues that they had, was it parking, et cetera, still does not negate the fact that he personally went, purchased the items,

[00:19:35] Speaker 01:
consumed them as any consumer would, and in the process encountered difficulty, embarrassment while he had to overcome the barriers.

[00:19:47] Speaker 01:
At this point, 25, it's been more than 25 years that ADA, there should be no 7-Eleven store that is where somebody will go, a disabled person will go and encounter barriers like that.

[00:20:05] Speaker 03:
Can I ask a different question?

[00:20:07] Speaker 03:
Does Mr. Gilbert's death affect the recovery of statutory damages under the UNRWA Act?

[00:20:12] Speaker 01:
Not to my understanding.

[00:20:13] Speaker 01:
Well, the case law I've seen on this, his estate would still recover.

[00:20:18] Speaker 03:
Is there a case that you can point us to, to say that he's okay?

[00:20:22] Speaker 01:
Yes.

[00:20:23] Speaker 01:
The one that comes to mind is Kalani versus Starbucks.

[00:20:27] Speaker 01:
Also, plaintiff was during the pendency of the appeal.

[00:20:34] Speaker 01:
And in that case, Starbucks argued that because of that, he should not be awarded damages, his estate should not receive damages, and that was, yeah, he was awarded damages.

[00:20:48] Speaker 02:
This is a problem that can be sorted out, but I wondered if we need to remand, because your motion to substitute actually substituted not the estate, but his children.

[00:21:01] Speaker 02:
I don't know, fortunately, anything about probate law in California, but I'm not sure that identifying who might be the heirs to his estate actually accomplishes what you've just described, which is that the estate may appropriately substitute.

[00:21:17] Speaker 02:
So that's not our day job, and that's why I say it may be that we have to let the district court figure out who actually is entitled to the money.

[00:21:29] Speaker 02:
I get your point.

[00:21:32] Speaker 01:
Yes.

[00:21:33] Speaker 01:
And dealing with his children and distress after his passing was not easy, but I'm being told that they're working on doing the proceedings, whatever they do.

[00:21:50] Speaker 02:
They have bigger issues than the statutory damage award here.

[00:21:54] Speaker 02:
We get that.

[00:21:56] Speaker 01:
So, determination of who, you know, exactly, and how it should be distributed, absolutely, that should probably be left to the district court to decide.

[00:22:11] Speaker 00:
Okay, thank you, counsel.

[00:22:20] Speaker 04:
Your Honor, I would just go back to Antonetti.

[00:22:23] Speaker 04:
Antinetti says on those visits when he was not seeking to purchase food or to have Chipotle experience, Antinetti cannot recover money damages under the California Act.

[00:22:34] Speaker 02:
But in fact, we had those transactions, nothing was purchased.

[00:22:39] Speaker 02:
In this case, something was purchased.

[00:22:41] Speaker 02:
That's not how I read it.

[00:22:43] Speaker 02:
I'll read it again, but that's not how I see it.

[00:22:46] Speaker 04:
Read it, and then you need to read the subsequent decision of this district court where it said they were purchased.

[00:22:52] Speaker 00:
Well, that's different from what the actual holding of Antonini was.

[00:22:57] Speaker 00:
You're saying there was a finding of fact on remand that purchases occurred.

[00:23:03] Speaker 04:
Correct.

[00:23:06] Speaker 04:
This court recognized that, this court says the record does not show whether Antinetti purchased food on any of these three litigation visits, although he states in his opening brief, nor was any evidence offered at any time that Antinetti's purchase during these litigation related visits were made in bad faith with fraud or deceit.

[00:23:26] Speaker 04:
And so plaintiff argued that purchases were made on appeal.

[00:23:30] Speaker 03:
And what about that core case that I was mentioning with opposing counsel that White discusses where there's this litigation motive?

[00:23:37] Speaker 03:
And I think in that case, the plaintiff never, as I read White, the plaintiff didn't pay a discriminatory price, but he nevertheless had standing for asserting it.

[00:23:48] Speaker 03:
So why under California law does a litigation motive disqualify you?

[00:23:54] Speaker 04:
Because in that case, the question before the court was, do they actually have to buy something?

[00:24:01] Speaker 04:
Because it used to be you buy something, you have to buy something, otherwise you're barred.

[00:24:05] Speaker 04:
And Cora was a case where you've done enough to get past a motion dismissed or a motion summary judgment because now we need to make a finding of fact of what your actual motive is, what your intent is.

[00:24:20] Speaker 04:
And that's what CORE stands for.

[00:24:23] Speaker 04:
It's not finding that, well, you didn't purchase anything, but it doesn't address whether or not litigation would bar any recovery.

[00:24:38] Speaker 00:
Thank you, Council, for your arguments.

[00:24:43] Speaker 00:
This matter is submitted.