                                                                           FILED
                           NOT FOR PUBLICATION
                                                                            FEB 17 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


MARTIN VOGEL,                                    Nos. 13-57047
                                                      14-55176
              Plaintiff - Appellant,
                                                 D.C. No. 2:13-cv-00464-PSG-PLA
 v.

TULAPHORN, INC., DBA McDonalds,                  MEMORANDUM*
No. 10746 and MCDONALD’S
CORPORATION,

              Defendants - Appellees.


                    Appeal from the United States District Court
                        for the Central District of California
                    Philip S. Gutierrez, District Judge, Presiding

                      Argued and Submitted February 4, 2016
                               Pasadena, California

Before: REINHARDT, PAEZ, and M. SMITH, Circuit Judges.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      Martin Vogel and his attorney Lynn Hubbard III appeal the district court’s

order granting terminating sanctions.1 We affirm.

      The district court did not abuse its discretion in granting the motion of

Defendant Tulaphorn, Inc. (“Tulaphorn”) for terminating sanctions. The court

properly identified the five factors that must be evaluated before issuing a

sanctions order under its inherent powers. Halaco Eng’g Co. v. Costle, 843 F.2d

376, 380 (9th Cir. 1988).

      In discovery responses and deposition testimony, Vogel represented that he

first encountered barriers to access at the McDonald’s Restaurant (“Restaurant”)

during a visit on January 8, 2013. Vogel provided a receipt and photos

documenting that visit, and testified at his deposition that the documents were his

own. He repeated those assertions in a declaration in support of his motion for

summary judgment and attached the January 8 receipt and photos. The January 8

visit was the only pre-Complaint visit documented in the motion for summary

judgment. In response to the motion, Tulaphorn notified Vogel that Restaurant

security video from January 8, 2013, showed Vogel’s attorney, not Vogel, visiting



      1
        Vogel additionally appeals the district court’s orders awarding attorneys’
fees and costs against Vogel and his counsel. However, Vogel’s briefing addresses
only the order granting terminating sanctions. Thus, any challenge to the fee
awards is waived. See TRW Inc. v. Andrews, 534 U.S. 19, 34 (2001).

                                          2
the Restaurant, purchasing a drink, and taking the photos Vogel testified to at his

deposition, produced in discovery, and referenced in the motion for summary

judgment.

      Vogel’s counsel responded by letter that he had made a “mistake” in

offering the January 8 materials as evidence of Vogel’s own visit to the Restaurant.

Instead, the letter stated that the receipt and photos were acquired during a “Rule

11 inspection” of the Restaurant performed by Vogel’s counsel, and were

“inadvertently disclosed with Vogel’s receipts.” Vogel then served amended

discovery responses, filed an amended motion for summary judgment, and served

an Errata Sheet to Vogel’s deposition transcript. The changes were

substantial—the Errata Sheet, for example, contained over one hundred revisions

to Vogel’s deposition, eliminating all references to the January 8 visit.

      The district court, on the basis of evidence before it, reasonably determined

that both Vogel and his attorney participated in a pattern of falsification of

evidence that amounted to bad faith. Despite multiple requests by Tulaphorn,

Vogel never produced any documentation supporting a different pre-Complaint

visit. Nor did Vogel provide a sworn statement explaining why he described in

such detail the facts of a visit he later acknowledged did not occur, although he

could have attached such a declaration to his Errata Sheet, to his amended motion


                                           3
for summary judgment, or to his opposition to the motion for sanctions. On this

record, the district court did not abuse its discretion by issuing terminating

sanctions.

      AFFIRMED.




                                           4
                                                                              FILED
13-57047 & 14-55176 Vogel v. Tulaphorn, Inc.
                                                                               FEB 17 2016
                                                                           MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS


Reinhardt, Circuit Judge, dissenting:

      The critical factual issue in this case is what the plaintiff, Martin Vogel, did and

when. Although Hubbard, Vogel’s counsel, specifically asked that Vogel be allowed

to testify at the sanctions hearing, the district judge refused to allow him to do so. In

my view, that refusal was a legal error that constitutes an abuse of discretion.

      For that reason, I respectfully dissent.
