Martin Vogel v. TULAPHORN, INC., DBA McDonalds, No. 10746 and MCDONALD’S CORPORATION

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARTIN VOGEL,
Plaintiff - Appellant,
v.
TULAPHORN, INC., DBA McDonalds,
No. 10746 and MCDONALD’S
CORPORATION,
Defendants - Appellees.
Nos. 13-57047
14-55176
D.C. No. 2:13-cv-00464-PSG-PLA
MEMORANDUM*
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.
FILED
FEB 17 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

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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

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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

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

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