[00:00:00] Speaker 04:
Good morning, Your Honors.

[00:00:01] Speaker 04:
Good morning.

[00:00:01] Speaker 04:
And I think I remember this case.

[00:00:04] Speaker 03:
So welcome back.

[00:00:06] Speaker 03:
Me too.

[00:00:08] Speaker 04:
It's the third time, I think.

[00:00:10] Speaker 03:
We had the Nexus.

[00:00:11] Speaker 03:
We had the Nexus.

[00:00:11] Speaker 03:
I was on the Nexus.

[00:00:12] Speaker 03:
Oh, you were on the Nexus.

[00:00:13] Speaker 02:
So you tried to get away from both of us and now you have us.

[00:00:15] Speaker 02:
So we had either of you on the Nexus.

[00:00:17] Speaker 04:
On different iterations of this previously.

[00:00:19] Speaker 01:
I'm apparently the only new one.

[00:00:23] Speaker 02:
It should be familiar on Alexis through Ohio accents, I'm sure, Your Honor.

[00:00:29] Speaker 02:
I think I can be brief because I think the issues here are straightforward.

[00:00:34] Speaker 02:
The big question is mootness.

[00:00:37] Speaker 02:
This case was tried in 2019 and the entire focus was on the NTC program.

[00:00:43] Speaker 02:
It's a specialized program that had a screening team that decided whether a patient should be allowed to go in for treatment with her dog.

[00:00:54] Speaker 02:
And the treatment team decided that plaintiff would be better off for clinical reasons not to have her dog present.

[00:01:04] Speaker 02:
When the case was remanded later, the trial court, Judge Carter, agreed with us that the fundamental alteration defense applied, that is that bringing her dog into treatment would fundamentally alter the clinical nature of the treatment in the case.

[00:01:25] Speaker 02:
And then this court remanded for a mootness consideration because the NTC program closed in 2020.

[00:01:34] Speaker 04:
And so the whole issue... And that didn't get raised in the second appeal, right?

[00:01:37] Speaker 04:
So the second appeal, I think, I mean, because I was looking back at this, like, did we miss something?

[00:01:43] Speaker 04:
But I don't think anybody told us that it had closed.

[00:01:46] Speaker 02:
It was in a footnote.

[00:01:48] Speaker 02:
Oh.

[00:01:48] Speaker 02:
And the court caught it and asked us to... In our panel or in a different panel?

[00:01:53] Speaker 02:
The second panel, which Judge Van Dyke would have been on that panel.

[00:01:57] Speaker 02:
Okay.

[00:01:58] Speaker 02:
And caught it, and it was in a footnote, and asked us to address the issue

[00:02:03] Speaker 04:
And that's what got remanded back then.

[00:02:05] Speaker 02:
And that's what resulted in the remand.

[00:02:07] Speaker 04:
So why isn't this moot?

[00:02:09] Speaker 04:
You were saying it is moot or you're saying it's moot?

[00:02:12] Speaker 02:
I'm saying it's moot.

[00:02:13] Speaker 02:
Yeah.

[00:02:13] Speaker 02:
And the reason is that the NTC program is different than any other program at the hospital, number one.

[00:02:20] Speaker 02:
And number two, plaintiffs never applied and was never rejected for admission to any other program.

[00:02:28] Speaker 02:
And so you don't have a crystallized kind of controversy here that relates to these other programs.

[00:02:36] Speaker 04:
And they focus.

[00:02:40] Speaker 04:
If I remember, there's still some other issues though, or does that just moot out the entire case over time?

[00:02:44] Speaker 02:
In our view, I think the case is moot, because the case was tried on the theory that the NTC program was discriminatory under the ADA, and that was the sole issue.

[00:02:56] Speaker 02:
There was no testimony, there was no...

[00:02:59] Speaker 02:
No issue resolved as to any other Program and the reason for that is obvious that she had never applied to any other program So I think this case is should about voluntary cessation What about voluntary cessation?

[00:03:15] Speaker 02:
I mean they need your client Stopped the program we stopped the program there was a shortage of staff and patients and

[00:03:23] Speaker 02:
And so that was the thinking that couldn't continue.

[00:03:27] Speaker 02:
It wasn't because they thought they were doing something wrong and therefore ceased how to handle it.

[00:03:33] Speaker 04:
It's because they weren't making any money, if I remember.

[00:03:35] Speaker 02:
Yeah, if they weren't making any money.

[00:03:37] Speaker 02:
But that's the motivation.

[00:03:39] Speaker 02:
It's not a concession of wrongdoing on their part.

[00:03:43] Speaker 02:
In fact, they had prevailed in the district court on the fundamental alteration defense.

[00:03:49] Speaker 02:
So there was no reason other than the financial staffing medical necessities that caused the program to shut down.

[00:04:00] Speaker 02:
So I think that is the end of the case.

[00:04:04] Speaker 02:
If you were to send it back, I'm not sure what you would try at this point.

[00:04:09] Speaker 02:
The case is moot.

[00:04:11] Speaker 02:
It was tried on a very narrow set of circumstances.

[00:04:14] Speaker 02:
If she were to apply and be rejected to one of these other programs, then she would have a case.

[00:04:19] Speaker 02:
But that hasn't happened.

[00:04:21] Speaker 02:
It's hypothetical.

[00:04:21] Speaker 02:
It's speculative.

[00:04:23] Speaker 02:
The testimony on remand was that she would be allowed in these other programs to bring her dog.

[00:04:33] Speaker 02:
That's not an issue.

[00:04:36] Speaker 02:
The plaintiff is arguing that there was a stipulation that the parties entered into after remand in which Del Amo agreed that the programs, procedures, all that had not changed since 2014.

[00:04:53] Speaker 02:
From that, the trial court extrapolated that therefore, if it didn't change, it must have been in violation of the ADA in the first place.

[00:05:02] Speaker 02:
But all the stipulation said was that it hadn't changed since 2014.

[00:05:07] Speaker 02:
There had been no change in policies and procedures.

[00:05:11] Speaker 02:
Our position is that

[00:05:12] Speaker 02:
They were never not compliant with the ADA because the only question was whether the NTC program was noncompliant because the position the hospital took was that, yes, as to any other program, she always would have been allowed to bring her dog in.

[00:05:27] Speaker 02:
So the fundamental alteration defense was exclusive to the NTC.

[00:05:31] Speaker 03:
And so as I recall, you know, this is a, I got the, correct me if I'm wrong, but I got the impression that this was a program that is very,

[00:05:42] Speaker 03:
For lack of a better word, its whole structure and everything was based on this person that ran it.

[00:05:48] Speaker 03:
This doctor, maybe, that ran it.

[00:05:52] Speaker 03:
And it was his view, it would not work.

[00:05:55] Speaker 03:
It would fundamentally alter if he included dogs.

[00:05:58] Speaker 03:
But then he passed away, is my understanding.

[00:06:01] Speaker 03:
And so the program kind of died with him because it was so tied up in him doing it.

[00:06:10] Speaker 03:
And so it makes some sense to me that if my understanding of all that is correct, and it sounds like you agree with that.

[00:06:17] Speaker 02:
It was his baby.

[00:06:18] Speaker 03:
Yeah, it was his baby and his program and including the policy that it just won't work if we try to let people bring their dog.

[00:06:26] Speaker 03:
And so he's gone.

[00:06:27] Speaker 03:
The program goes away because of him.

[00:06:30] Speaker 03:
I guess the question for voluntary cessation or for whether it's mood, I guess,

[00:06:35] Speaker 03:
The practical question seems to be what are the chances that this could come along.

[00:06:42] Speaker 03:
It's not going to come along through that fellow because he's unfortunately passed away.

[00:06:47] Speaker 03:
But I suppose somebody else could come.

[00:06:50] Speaker 03:
The hospital could hire somebody else, and that person could have a similar view.

[00:06:53] Speaker 03:
That would have to be, and we'll hear from your colleague on our side, but I think that would have to be their view is that nothing prevents them from starting a program up again with a leader

[00:07:04] Speaker 03:
has this view, and I just don't have a good feel for how many people out there.

[00:07:08] Speaker 03:
I mean, what are the odds of that happening?

[00:07:11] Speaker 02:
I don't know what the odds are, but I think the easiest answer to that question is that when you're talking about voluntary cessation, you have to assume that there was a pre-existing violation or threatened violation.

[00:07:24] Speaker 02:
And that was defeated by the trial from courts finding that there was a fundamental alteration defense that prevailed.

[00:07:32] Speaker 02:
So in other words, when you volunteer- That was never adjudicated.

[00:07:38] Speaker 03:
Isn't that what was in our appeal, in the second appeal, I think?

[00:07:41] Speaker 03:
And what happened is we looked at it and we're like, well, wait a minute.

[00:07:44] Speaker 03:
We probably shouldn't address this fundamental alteration thing if the program is not even around anymore.

[00:07:50] Speaker 03:
And so we, as I recall, we kind of said, well, wait a minute.

[00:07:54] Speaker 03:
I think in oral argument, we're like, the program's not around anymore, right?

[00:07:56] Speaker 03:
And you guys are like, yeah, it's not around.

[00:07:58] Speaker 03:
And we're like, OK, so we remember the whole fundamental alteration was before us, but we kind of didn't decide it on that.

[00:08:04] Speaker 02:
It wasn't decided, but the state of the record was.

[00:08:08] Speaker 03:
Right, but I don't know that we can rely on something that we never, that was never sort of fully litigated as the basis for this case being moved.

[00:08:17] Speaker 03:
Because, you know, you didn't, I guess, but aside from that,

[00:08:22] Speaker 03:
Aside from that, if there was a 90% chance that this program's coming back, the guy's son who does the program just like him just got hired by the hospital, then it seemed to me like it wouldn't be hard to say it's moot.

[00:08:39] Speaker 03:
But I don't think that's the case.

[00:08:40] Speaker 03:
I'm just trying to figure out what is the chance that this comes back in this form with the same rules.

[00:08:44] Speaker 02:
I think if it comes back, then we revert back to our defense that this kind of treatment would interfere or this kind of admission of a dog with a patient.

[00:08:56] Speaker 02:
It might have to start all over again, but in terms of a

[00:09:00] Speaker 02:
fundamental existing violation, there would be none.

[00:09:04] Speaker 02:
Either way, either the court never reached the issue of the legality of the fundamental alteration defense, or it never happened because it's wiped clean.

[00:09:14] Speaker 03:
I take it your view is that it's completely speculative or hypothetical whether something like this could come back.

[00:09:19] Speaker 03:
There's nothing in the record or anything that would cause us to think that this is a one-of-kind program with this

[00:09:26] Speaker 03:
Its policy was very much based on its leaders view the leaders passed away the programs dried up and gone away and if there's no more chance of this type of program coming back at at this hospital as opposed to any other hospital in the case just it could happen, but we it could happen, but it is speculative and again my point is you have to cease and

[00:09:51] Speaker 02:
engaging in wrongful activity and there is no predicate wrongful activity either because the district court concluded that the defense our defense a fundamental alteration the way you think voluntary cessation only applies if there's a final determination that the conduct is wrongful there's got to be some determination there's got to be some violation it doesn't have to be a judicial determination but there's got to be some violation I would think

[00:10:17] Speaker 03:
You're basically saying the case is moot because we never did anything wrong.

[00:10:27] Speaker 03:
And it was never decided.

[00:10:28] Speaker 03:
I'm not sure that works.

[00:10:30] Speaker 03:
But the case could be moot because there's nothing going on anymore.

[00:10:36] Speaker 03:
And it's speculative that anything like this would happen.

[00:10:39] Speaker 02:
Right.

[00:10:40] Speaker 02:
And subjectively from the hospital's point of view, they've always felt they were doing the right thing.

[00:10:43] Speaker 02:
So that's what I'm reflecting is their position.

[00:10:46] Speaker 04:
Well, maybe we should hear from I don't know if I have one more question not to I know you wanted just to take a couple minutes, but You're not asking us to do anything with the first opinion, but now I realize We sat on a case and we decided it that if we say this is mood.

[00:11:06] Speaker 04:
It would have been moot You know back when we heard it

[00:11:11] Speaker 04:
Do is there anything you're you're not asking us to do anything with that though?

[00:11:14] Speaker 04:
I'm not sure it would have been moot after the first appeal it might have been well I thought I thought I went and looked at the timing because I Thought that one came out in 21 and you ceased it in 20, but no one knew about it Maybe we just looked the other way on this but and maybe there's nothing we can do anyway I mean if we if we realize that an opinion is moot five years later I don't think we go back and

[00:11:40] Speaker 02:
I frankly was just the appellate attorney so I can't answer the question.

[00:11:44] Speaker 02:
Okay.

[00:11:44] Speaker 02:
I mean if I had picked up on the the fact that he No, I understand.

[00:11:50] Speaker 04:
I'm not trying to I'm just wondering if we need to do anything and I think the answer is no and

[00:11:56] Speaker 04:
I take it your answer is you haven't really thought about it.

[00:11:59] Speaker 02:
I think nobody brought it up.

[00:12:01] Speaker 02:
It wasn't an issue.

[00:12:02] Speaker 02:
The decision is final.

[00:12:03] Speaker 02:
Yeah.

[00:12:04] Speaker 04:
Yeah.

[00:12:04] Speaker 04:
No, I understand.

[00:12:05] Speaker 04:
I tend to agree.

[00:12:06] Speaker 02:
But I have the same curiosity you do, and I'd have to go back and look at the record to find out.

[00:12:11] Speaker 02:
But unless the court has any further questions, what is there?

[00:12:16] Speaker 02:
Thank you.

[00:12:25] Speaker 00:
Good morning, Your Honors.

[00:12:26] Speaker 00:
May it please the court, Christopher Knopf, for plaintiff CL, who's the appellee and the prevailing party in this case.

[00:12:34] Speaker 00:
Welcome back.

[00:12:35] Speaker 00:
Welcome back and welcome, Judge Cole.

[00:12:38] Speaker 00:
Thank you.

[00:12:38] Speaker 00:
I think we actually had a different, the other Judge Cole in one of the other ones as well, so I see the logic of the court.

[00:12:46] Speaker 00:
Your Honors, you won't be surprised to hear that I have a very different view of this case and the facts and the questions that are at bar in this appeal.

[00:12:56] Speaker 04:
uh... the council will kill and you might want to go beyond this but we can we focus on this first yeah absolutely your view is when you agree that the program doesn't exist that's not your different view of the fact right and that the ntc it was one aspect of a hospital this is a psychiatric hospital in torrance multiple programs your client that was only going to be

[00:13:22] Speaker 00:
So your honor, let's be careful here.

[00:13:24] Speaker 00:
OK.

[00:13:25] Speaker 00:
We did not, in our complaint, we alleged that the hospital failed to accommodate our client service dog, not the NTC.

[00:13:34] Speaker 00:
Our client, as you know, is a PhD, very smart.

[00:13:37] Speaker 00:
She researched various hospitals to determine where she needed to go when she's in crisis.

[00:13:43] Speaker 00:
OK.

[00:13:44] Speaker 04:
Has she been to the hospital for any other program?

[00:13:49] Speaker 04:
since NTC closed in 2020.

[00:13:51] Speaker 00:
No, she has not.

[00:13:53] Speaker 04:
I don't understand your point.

[00:13:55] Speaker 00:
That's not the issue.

[00:13:56] Speaker 04:
No, it absolutely is the issue.

[00:13:58] Speaker 00:
Your Honor, if I may, the way that it works is the patient, and the record supports this fully, the patient arrives at the hospital

[00:14:09] Speaker 00:
And the intake folks determine what the person's needs are and then processes them accordingly.

[00:14:16] Speaker 00:
She had heard of the NTC.

[00:14:17] Speaker 00:
She has a lot of trauma from childhood.

[00:14:20] Speaker 00:
That's what attracted her there, along with it taking Medi-Cal and along with it being close to her home.

[00:14:26] Speaker 00:
The district court properly analyzed mootness, Your Honor, because the whole question is whether is there still any other relief that could be awarded?

[00:14:36] Speaker 00:
And the answer is yes.

[00:14:38] Speaker 00:
Absolutely, because of the deterrence issue and the availability of other programs at the hospital.

[00:14:46] Speaker 04:
She was there for me.

[00:14:48] Speaker 04:
Okay, so your argument now is, well, let's get beyond mootness, but then you've got a rightness problem because, I mean, how she hasn't even ever tried to go and been rejected anywhere else.

[00:15:01] Speaker 00:
Your Honor, that's not the issue.

[00:15:02] Speaker 00:
That's just not it.

[00:15:04] Speaker 00:
No, Your Honor.

[00:15:05] Speaker 04:
She hasn't been to the hospital in five years.

[00:15:07] Speaker 00:
That is not that we are looking at clear error as to at the time of trial when this case was decided and the evidence at that time your honor was that there was a program at the hospital that was available if they call it the Del Sol program okay that it provides 24 hour care for folks in psychiatric crisis.

[00:15:30] Speaker 00:
That's what she was there for.

[00:15:32] Speaker 00:
NTC may have had a trauma basis.

[00:15:34] Speaker 03:
Because I want to find out the limits of your view of the White Moon.

[00:15:38] Speaker 03:
What is your view if the hospital was gone?

[00:15:43] Speaker 03:
Because it seems to me you're trying to distinguish between the program and the hospital.

[00:15:46] Speaker 03:
I understand.

[00:15:48] Speaker 03:
But would you agree or disagree that if the hospital was gone, like they just closed, something happened during COVID and they went out of business?

[00:15:57] Speaker 03:
that the case would be moot.

[00:16:04] Speaker 03:
I think your view would be that, well, the reason for that would be, I mean, in theory, the hospital could come.

[00:16:10] Speaker 03:
They could build another hospital there or same management.

[00:16:13] Speaker 03:
In theory, that could happen.

[00:16:14] Speaker 03:
But these really speculative things don't really count to overcome mootness, whether you characterize them as rightness or whatever.

[00:16:21] Speaker 03:
And so what I'm trying to figure out is if you would agree with that, and I think that's got to be right,

[00:16:25] Speaker 03:
There are things that moot cases, and one would be the hospital disappearing.

[00:16:28] Speaker 03:
Well, if the program disappears, and in addition to that, there's zero evidence whatsoever.

[00:16:33] Speaker 03:
In fact, the evidence in this case is that every other program, every other aspect of this hospital will allow her to bring her dog, and that's even if she wants to go there, and she hasn't been there in five years.

[00:16:42] Speaker 03:
We have no idea whether she wants to, but it doesn't seem that different than the hospital.

[00:16:48] Speaker 03:
The program going away doesn't seem that different than the hospital having it, because the program

[00:16:53] Speaker 03:
was the only thing that kept her from bringing her dog.

[00:16:56] Speaker 00:
Let me bring you back and I can answer your honor's question here.

[00:16:59] Speaker 00:
The way the ADA works is that when she appeared with a service dog at the hospital, the hospital had a legal obligation to serve her if it could.

[00:17:09] Speaker 00:
The initial steering to NTC was something that would happen in the very first instance that she went there.

[00:17:18] Speaker 00:
She then went there seven or eight times at various points when she was triggered

[00:17:22] Speaker 00:
And the staff happened to know it.

[00:17:25] Speaker 04:
All to NTC, right?

[00:17:25] Speaker 04:
All to NTC.

[00:17:27] Speaker 00:
Because that's where she went the very first time.

[00:17:28] Speaker 04:
I know, but counsel, if she had said...

[00:17:31] Speaker 04:
You know what?

[00:17:32] Speaker 04:
I don't need NTC.

[00:17:34] Speaker 04:
I need to get my blood drawn.

[00:17:36] Speaker 00:
If she had known about Del Sol, she would have.

[00:17:40] Speaker 00:
The hospital never gave her an opportunity to say, if you really want your service dog, then we have this other program called Del Sol.

[00:17:50] Speaker 00:
It's not even a program.

[00:17:51] Speaker 00:
It's just a manner of treatment.

[00:17:52] Speaker 00:
The difference is that NTC had cognitive behavioral therapy multiple times a day.

[00:17:58] Speaker 00:
That's the only difference, Your Honor.

[00:18:00] Speaker 00:
Del Sol had therapy once or twice a day.

[00:18:02] Speaker 03:
Well, you say it's the only difference.

[00:18:04] Speaker 03:
There's also a very important key difference, which is you can't bring your dog to NTC, and you can bring your dog to anything else at the hospital.

[00:18:12] Speaker 03:
So that's pretty important.

[00:18:16] Speaker 03:
I think I understand your argument.

[00:18:19] Speaker 03:
Your argument is,

[00:18:20] Speaker 03:
Listen, it is the hospital that did not let her bring her dog, and we should not get all caught up with the fact that it was related to this.

[00:18:25] Speaker 00:
There was another program that would have taken the dog.

[00:18:27] Speaker 00:
And under the ADA, they had to at least offer it.

[00:18:29] Speaker 00:
They had to talk about it.

[00:18:31] Speaker 00:
But then, but then.

[00:18:32] Speaker 04:
If they had done that, she would have said yes.

[00:18:34] Speaker 04:
Counsel, now you're making a different argument.

[00:18:37] Speaker 04:
Now you're saying your whole basis is not that they violated the ADA by not letting her bring her dog into the NTC.

[00:18:47] Speaker 04:
You're now saying,

[00:18:49] Speaker 04:
they didn't offer an alternative.

[00:18:52] Speaker 04:
Was that what was tried to the jury?

[00:18:57] Speaker 04:
I understood the jury was all based on you said I couldn't bring my dog to the NDC.

[00:19:03] Speaker 04:
Did you try to the jury that there was an alternative and it was not offered?

[00:19:06] Speaker 00:
There's no jury.

[00:19:07] Speaker 00:
It was trial to the court.

[00:19:09] Speaker 00:
And the court on remand got evidence that they did not offer Del Sol.

[00:19:15] Speaker 00:
And CL's undisputed testimony is they never advised her of that program.

[00:19:21] Speaker 01:
But if they had, she would have taken it.

[00:19:22] Speaker 01:
Then the injunction you would want would be an injunction to fully explain to patients all of the options, including those that allow service.

[00:19:30] Speaker 01:
It wouldn't be an injunction to prevent them from

[00:19:34] Speaker 00:
Bringing in a service dog would be an injunction to prevent them from failing to describe the other options It sounds like under this theory that would be relief for the Ideally an injunction would include that it is sufficient that this district court simply said thou shalt not exclude a service dog Because at this point there is a program that will serve her that that's the whole issue yarn This is perspective really so she could go there, and there's no problem

[00:20:01] Speaker 00:
There is a problem, and the problem is the policy still requires certification of the service dog.

[00:20:07] Speaker 00:
That's still in the policy.

[00:20:09] Speaker 03:
The policy still states... So if you were asking for damages, I suppose this would make a little more sense to me because we would say, well, what are her damages?

[00:20:19] Speaker 03:
And you hadn't waived it.

[00:20:21] Speaker 03:
We'd have to look into that.

[00:20:21] Speaker 03:
But then we'd say, what are your damages from them not offering her an alternative?

[00:20:28] Speaker 03:
But going back to moodness, rightness,

[00:20:31] Speaker 03:
If the basis was, and I don't understand you to be disputing this particular thing, I think you're saying it's irrelevant, but the basis for them saying can't bring your dog was because this program does not allow the dog.

[00:20:45] Speaker 03:
If that's their basis and that program no longer exists and there's no reason for us to think

[00:20:50] Speaker 03:
that they would do that, then I don't understand why you get an injunction.

[00:20:56] Speaker 03:
I mean, it seems like you're saying, I want to get an injunction to get them to do what they're already willing to do, and we don't give injunctions for that.

[00:21:03] Speaker 00:
The only evidence that we have that they will take the service dog now is a non-binding statement in deposition.

[00:21:11] Speaker 00:
That's all we have.

[00:21:12] Speaker 00:
When we have a policy that is still erroneous, it's still in place.

[00:21:15] Speaker 04:
Council, you know what the problem is?

[00:21:17] Speaker 04:
Your client in over five years has never walked in and asked them if they would allow that to happen.

[00:21:25] Speaker 04:
So why in the world are you asking us to get involved here?

[00:21:29] Speaker 00:
I'm not asking you to get involved.

[00:21:30] Speaker 04:
No, you absolutely are.

[00:21:31] Speaker 04:
You're asking us to decide an issue that is completely theoretical.

[00:21:36] Speaker 04:
No, Your Honor.

[00:21:37] Speaker 00:
Deterrent deterrence is sufficient.

[00:21:40] Speaker 00:
She was deterred from your honor.

[00:21:42] Speaker 03:
She was deterred from returning to the hospital She was I give you that she was yeah, if you're asking for damages We try to figure out whatever that but but you also but if you want injunctive relief you have to convince us that there's a chance that that will happen again and normally we'd say it happened in the past out again, but there's a very significant event here that gets in the way of that and and you're just wanting us to ignore it because you're saying it was a

[00:22:04] Speaker 03:
this hospital, but I don't think we can ignore that.

[00:22:08] Speaker 03:
I don't think we can ignore that the program no longer exists.

[00:22:11] Speaker 03:
And you're saying, well, there's no evidence, I guess you're saying there's no evidence that she wouldn't show up, that if she walked in there, do you think that if she walked in there right now with her dog, and is your argument that if she walked in there right now with her dog and said, I need to get treatment, that they would reject the dog?

[00:22:30] Speaker 00:
Your Honor, number one, she has an injunction in her hand right now, so based on that, she... But without the injunction, you... Without the injunction, the evidence is that there is high staff turnover, they are not trained on the service dog issue, their intake procedure still requires certification of the service dog.

[00:22:44] Speaker 00:
How long has she had the injunction?

[00:22:45] Speaker 01:
That's against the law.

[00:22:46] Speaker 01:
How long has she had the injunction?

[00:22:48] Speaker 00:
As since 24 so what's been deterring her for the last?

[00:22:53] Speaker 00:
Year and a half your honor the whole point of her returning is that it is it's not speculative She has PTSD dissociative identity disorder.

[00:23:01] Speaker 00:
She's been going to therapy since she was a teenager She sees a therapist once a week she thinks that if she goes there.

[00:23:08] Speaker 03:
They won't let her I mean I

[00:23:10] Speaker 00:
Does she because you've been told by their attorneys in this litigation that hey she can assume there was no injunction your honor She absolutely would not go there because of what happened to her Previously she was not allowed to bring in her service dog.

[00:23:23] Speaker 03:
It was never adjudicated There was a fundamental alteration your honor that issue couldn't you as her attorney tell her like this and they say that the program that was just that program and if you go there now you I

[00:23:34] Speaker 00:
Your Honor, what I would advise her to do as an attorney is a whole separate thing of whether the district court had a proper evidentiary record, properly applied Friends of the Earth and Bayer and the other legal issues as well.

[00:23:46] Speaker 04:
You need to be a better attorney.

[00:23:49] Speaker 04:
You need to tell her the real truth, which is, go there, if you want to go there, and see if you get rejected.

[00:23:55] Speaker 00:
Of course, Your Honor.

[00:23:56] Speaker 00:
Of course.

[00:23:56] Speaker 00:
She has to take care of herself.

[00:23:58] Speaker 00:
That's not what I'm saying.

[00:23:59] Speaker 04:
Well, I don't know what you're saying.

[00:24:01] Speaker 00:
I mean, you're saying she has an injunction in hand, and she still refuses to go there.

[00:24:06] Speaker 00:
That's not what I'm saying.

[00:24:08] Speaker 00:
You're misunderstanding, Your Honor.

[00:24:09] Speaker 00:
I apologize if I said that.

[00:24:10] Speaker 00:
I don't believe a show I said that.

[00:24:11] Speaker 00:
She has an injunction which she would feel comfortable going there now because she knows.

[00:24:15] Speaker 00:
Okay.

[00:24:16] Speaker 04:
But she still has, my point is she still hasn't.

[00:24:18] Speaker 00:
That's not the point of this appeal.

[00:24:20] Speaker 00:
The point of this appeal is whether the district court had a proper conclusion based on friends of the earth on mootness.

[00:24:27] Speaker 00:
And the record at that time, you're asking about what's happened.

[00:24:30] Speaker 01:
If this injunction stays in place, what changes about the real world?

[00:24:34] Speaker 01:
Maybe try it that way.

[00:24:34] Speaker 01:
So assuming this injunction is not vacated.

[00:24:37] Speaker 00:
Yes.

[00:24:38] Speaker 01:
Let's assume the converse assume the injunction is vacated.

[00:24:42] Speaker 01:
What changes in the real world?

[00:24:45] Speaker 01:
What changes in the real world is that she then is deterred again from returning to the law, but but it can't be that a Party's sort of irrational belief about the way things are going to turn out Informs whether or not something's moot.

[00:24:58] Speaker 00:
You know that can't be right the district court ruled that based on the testimony and the evidence in the case which is what we're here talking about is the evidence in the case and

[00:25:06] Speaker 00:
at the time of the ruling was appropriate to conclude that she was properly deterred.

[00:25:12] Speaker 00:
It was based on the fact that they had a faulty policy.

[00:25:16] Speaker 04:
From the NTC.

[00:25:17] Speaker 00:
The district court ruled that the rest of the hospital program was not accessible to her.

[00:25:24] Speaker 00:
You're focused on NTC because Delama wants to focus on NTC and narrow it.

[00:25:28] Speaker 00:
It's not about that.

[00:25:29] Speaker 00:
It's about whether there was anything at the hospital where she could attend with her service dog.

[00:25:34] Speaker 00:
If they had said,

[00:25:35] Speaker 00:
NTC does not work, but this other unit, this other room over here.

[00:25:40] Speaker 00:
If they had said that to her, we wouldn't be here today.

[00:25:44] Speaker 00:
Well, they have said it.

[00:25:46] Speaker 00:
We wouldn't be here today.

[00:25:48] Speaker 00:
They have said it.

[00:25:49] Speaker 00:
No, Your Honor.

[00:25:50] Speaker 00:
Not until 2023.

[00:25:50] Speaker 00:
Whether they've said it or not, she's got an injunction.

[00:25:53] Speaker 00:
2023, Your Honor.

[00:25:54] Speaker 04:
Okay.

[00:25:55] Speaker 04:
And has she gone back in the last two years?

[00:25:57] Speaker 00:
Your Honor, the point is, she was not allowed to bring her dog.

[00:26:00] Speaker 00:
If they had said to her, yes, you can bring your dog to...

[00:26:04] Speaker 00:
I need you to read it.

[00:26:07] Speaker 04:
Oh, we've read it okay, and you I mean honestly It's hard to make this case worse, and you did with this argument.

[00:26:14] Speaker 04:
I'm sorry.

[00:26:15] Speaker 04:
I mean it's it's just shocking Go tell her to go to the hospital if she wants to go there.

[00:26:21] Speaker 04:
There's been no prohibition in the last two years I don't know what your game is.

[00:26:25] Speaker 00:
It's not it's not it's not the standard all right Thanks

[00:26:34] Speaker 02:
Just briefly, this whole question about explaining the services.

[00:26:40] Speaker 04:
Can you help me out?

[00:26:42] Speaker 04:
Am I losing my mind?

[00:26:43] Speaker 04:
Because I mean, is that true that you told them in 2023 she could go to anywhere else in the hospital and they wouldn't have a problem with the service?

[00:26:52] Speaker 02:
I think it's in the declaration of Tina Clark.

[00:26:54] Speaker 02:
And the position is that the Del Sol program has always been open to her.

[00:26:58] Speaker 02:
That's in the record.

[00:27:00] Speaker 02:
That's in her entire deposition is there.

[00:27:02] Speaker 04:
So you're representing to the court if she walked in here, anytime from 2023 at least, if she walked in there tomorrow.

[00:27:11] Speaker 04:
You're saying you're welcome, we will roll out the red carpet for you, we will give you any treatment, we will love you as we should any patient.

[00:27:19] Speaker 04:
That's your statement to the court.

[00:27:21] Speaker 02:
Okay, we're done.

[00:27:25] Speaker 02:
I just wanted to say that this addition of the Del Sol program and not explaining other programs to her, not only are they moving the goalpost, they want to play in a different football field.

[00:27:36] Speaker 02:
That's the problem.

[00:27:37] Speaker 02:
And that was not part of this case, not litigated at trial.

[00:27:40] Speaker 02:
Council belongs.

[00:27:42] Speaker 04:
I was given really good advice when you've one sit down I appreciate it.

[00:27:48] Speaker 04:
I appreciate both of you, but Stop that's fine.

[00:27:53] Speaker 02:
Thank you.

[00:27:54] Speaker 04:
Thank you All right, the case is now submitted and that concludes our arguments for the day

[00:28:09] Speaker 04:
Hear ye, hear ye, all persons having had business with the honorable, the United States Court of Appeals of the Ninth Circuit, from now depart for this court, for this