[00:00:05] Speaker 00:
Good morning, Your Honors, and may it please the Court, Jessica Weber, for the plaintiff's appellants.

[00:00:10] Speaker 00:
I'd like to reserve four minutes of my time for rebuttal.

[00:00:14] Speaker 00:
This Court has said that trial courts must work to uphold a jury's verdict, that they must give the jury's findings substantial deference.

[00:00:22] Speaker 00:
In this case, the jury, after hearing several days of evidence about how LACCD repeatedly and often intentionally violated the plaintiff's rights under the ADA, including evidence that plaintiffs were shut out of their education, that Roy Payon, for example, was made to sit through classes unable to meaningfully access the content, unable to participate because he was getting textbook chapters late, he wasn't getting access to handouts,

[00:00:49] Speaker 00:
He couldn't access the educational software everybody else was using to learn.

[00:00:54] Speaker 00:
The jury heard this and came back with a verdict, finding that LACCD had violated the ADA in 14 different ways, nine of them intentionally, and awarded compensatory damages.

[00:01:06] Speaker 00:
There are two main questions on this appeal.

[00:01:08] Speaker 00:
The first is, should the jury's judgment about what amount of damages would fairly compensate the plaintiffs for their harms, should that have been overturned?

[00:01:17] Speaker 00:
And second, is the district court's limited injunction sufficient to ensure that the widespread violations here, most of them intentional, that they don't continue?

[00:01:28] Speaker 00:
So I will start with the damages issue and then move to the injunction, unless the court prefer otherwise.

[00:01:32] Speaker 00:
There are three independent reasons the district court's decision to really gut the jury's damages award should be reversed.

[00:01:40] Speaker 00:
I'll list them all and then happy to go into each separately.

[00:01:44] Speaker 00:
So the first reason, and I want to highlight that this reason doesn't require the court to even reach the issue of the availability of emotional distress damages.

[00:01:53] Speaker 00:
And that first reason is that the jury's award properly compensated the plaintiffs for their loss of educational opportunities.

[00:02:00] Speaker 00:
That finding is consistent with the district court's instructions to the jury, was supported by the evidence in the case, and remains permissible even after Cummings versus Premier Riaz.

[00:02:11] Speaker 04:
Council, I thought that the district court had told the council that he would not permit either emotional damages or the lost educational opportunities to go to the jury.

[00:02:20] Speaker 00:
Yes, so the district court judge had told counsel that, however, that was not in the presence of the jury and the only instruction to the jury on damages, and I could read it, is damages means the amount of money that will reasonably and fairly compensate the plaintiff for an injury you find was caused by defendant's violation.

[00:02:40] Speaker 04:
It's just hard to understand how the jury

[00:02:44] Speaker 04:
could reasonably award damages for lost educational opportunities if you were prohibited from discussing lost educational opportunities to the jury, either in your trial evidence or in your closing.

[00:02:59] Speaker 04:
I understand there are some things that you said.

[00:03:02] Speaker 04:
effectively trying to emphasize what was lost, but you certainly were not able to put in any facts or figures or try to quantify anything.

[00:03:14] Speaker 04:
You couldn't bring in any experts because that would have been prohibited under the judges in limiting order.

[00:03:19] Speaker 00:
So we didn't bring in experts, but we did have a great deal of evidence from the plaintiffs about being denied educational opportunity.

[00:03:27] Speaker 00:
I mean, I can give you just one.

[00:03:28] Speaker 00:
I mean, we cited this in our brief.

[00:03:30] Speaker 00:
There's a lot of testimony about

[00:03:32] Speaker 00:
being relegated to being spectators in their education rather than participants, really being shut out of classroom discussion, not having the opportunity to engage.

[00:03:42] Speaker 00:
I mean, there was one question asked of Mr. Payan about his philosophy class, about what impact, if any, not getting the handouts on time had on his ability to learn in that class, and he answered

[00:03:55] Speaker 00:
It did impact my ability to learn, quote, I didn't have the opportunity to participate at the same level of participation as the rest of the students.

[00:04:03] Speaker 00:
There was a lot of information that I would have liked to participate in, and I thought that I could have contributed something, but because I didn't have the handout and I didn't have the benefit of viewing the PowerPoint, I didn't know what I missed and what I could have benefited from.

[00:04:14] Speaker 00:
That is loss of educational opportunity, and there is value to learning, there is value in

[00:04:21] Speaker 00:
Signing up for community college, right, is the first step.

[00:04:23] Speaker 00:
It's the gateway to higher education of investing in yourself for self-betterment.

[00:04:28] Speaker 00:
There is value in that beyond the cost of a textbook.

[00:04:31] Speaker 04:
And I agree with all that.

[00:04:32] Speaker 04:
So you can presume, for purposes of my question, that I agree with you that the damages can be awarded to your client.

[00:04:41] Speaker 04:
The question, though, is the district court at least thought, in the remittance order, that because no evidence had come in on that,

[00:04:48] Speaker 04:
that the jury's verdict was not tethered to anything.

[00:04:52] Speaker 00:
So I think your question, Your Honor, really hinges on, can loss of opportunity damages, is it only proven through receipts?

[00:05:00] Speaker 00:
Here are my out-of-pocket expenses related to my education, or is it?

[00:05:03] Speaker 04:
I'm just wondering whether, if we had done this right the first time, again, assuming that the loss of educational opportunity is a proper contract remedy,

[00:05:14] Speaker 04:
You certainly would have handled this very differently and the school would have handled this very differently.

[00:05:20] Speaker 04:
You would have argued, here's the lost opportunities and we're going to try and place some kind of value on that in contract.

[00:05:28] Speaker 04:
So, I mean, one thing that we could do here is send this back simply for trial on the damages.

[00:05:35] Speaker 04:
I would hope you'd figure out how to settle that one.

[00:05:37] Speaker 04:
But then it would all be up front on the table.

[00:05:43] Speaker 04:
We have to read into the jury's verdict something that you could not argue to them.

[00:05:51] Speaker 00:
Your Honor, so two things.

[00:05:53] Speaker 00:
One, obviously, attorney's arguments in closing or opening, that's not evidence.

[00:05:58] Speaker 00:
Here, the evidence in the case, and let me just back up, that the courts that have found a loss of opportunity, that it's still recoverable under Title II of the ADA, have noted that it's a non-pecuniary type of damage, that there is value beyond

[00:06:11] Speaker 00:
the particular costs of things and that it's similar to the way juries are called upon to evaluate lost reputational or loss of goodwill, reputational damages.

[00:06:20] Speaker 00:
So there are other contexts in which juries using common sense, listening to the evidence have put value on things that don't have a concrete economic value.

[00:06:30] Speaker 04:
Because you were prohibited from saying, and the judge did not instruct the jury, you may award damages for lost educational opportunities.

[00:06:38] Speaker 04:
There's also the possibility that the jury simply awarded these damages for emotional distress.

[00:06:43] Speaker 04:
And so I want you to presume for purposes of my question that I believe that there is a contract remedy.

[00:06:47] Speaker 04:
I don't think there's a tort remedy.

[00:06:49] Speaker 04:
So now we've got a jury that's just kind of free-floating, just giving damages, and we have no way of knowing whether it can be assessed to one sort of one bucket or the other or something else.

[00:07:01] Speaker 00:
So this court has held that courts must try to harmonize jury's findings in any way possible.

[00:07:08] Speaker 00:
Here, I hear you, there is an ambiguity to how we classify the jury's damages award.

[00:07:13] Speaker 00:
However, there was evidence throughout the case, a lot of it by the plaintiffs explaining how they lost the value of their education, how they did not benefit.

[00:07:22] Speaker 04:
But there also would have been evidence about their emotional distress over this whole situation.

[00:07:26] Speaker 00:
Your Honor, there actually had not been, because that was precluded.

[00:07:28] Speaker 00:
So we never asked in trial, how did you feel about it, right?

[00:07:32] Speaker 00:
We didn't talk about their feelings the whole trial.

[00:07:33] Speaker 00:
What we talked about is, did you miss out?

[00:07:36] Speaker 00:
Were you able to learn?

[00:07:37] Speaker 00:
Could you participate?

[00:07:39] Speaker 00:
And the answers we got were consistently, no, we did not get the value of the bargain.

[00:07:43] Speaker 00:
We signed up for education.

[00:07:44] Speaker 00:
We did not get it.

[00:07:46] Speaker 00:
The jury heard that, and they got the instruction that you can consider any amount that reasonably and fairly compensates the plaintiffs for any injury, as long as it's tethered to the evidence.

[00:07:55] Speaker 00:
They heard that evidence that plaintiffs did not get the value of their education, and they returned damages award based on that.

[00:08:02] Speaker 00:
It's true the judge also noted you can consider economic expenses, but that instruction wasn't preclusive.

[00:08:08] Speaker 00:
And I'll note that LICCD did not object to this instruction.

[00:08:12] Speaker 00:
That would have been the chance for them to tell the district court judge, no, no, no, limit this instruction, make sure the jury knows they can't award opportunity, lost opportunity damages.

[00:08:20] Speaker 00:
They did not do that, and so that is one very clear way that the court can harmonize the jury's award with the law.

[00:08:27] Speaker 01:
Let me ask, what is it that you want from us?

[00:08:29] Speaker 01:
What sort of remedy would you like us to be able to provide?

[00:08:34] Speaker 00:
So on the damages issue, we would like this court to reverse the district court's decision granting remittitor, so reinstating the jury's damages award.

[00:08:42] Speaker 00:
Judge Bybee is correct.

[00:08:44] Speaker 00:
We certainly could seek a fourth trial in this case.

[00:08:47] Speaker 00:
I will tell you we'd rather not.

[00:08:49] Speaker 04:
I mean, it sounds just dreadful.

[00:08:50] Speaker 04:
I'm sympathetic.

[00:08:52] Speaker 04:
I'm just trying to figure out...

[00:08:54] Speaker 00:
And honestly, I mean, if we were to get a new trial, it would be so we could get additional damages, right?

[00:08:58] Speaker 00:
We could more clearly state our position.

[00:09:00] Speaker 00:
We're willing to settle for what the jury awarded, not being able to argue they could award lost opportunity damages, but we still got in the evidence of loss of educational opportunity.

[00:09:12] Speaker 00:
We are simply seeking a reinstatement of the jury's damages award here.

[00:09:16] Speaker 02:
One clarifying question.

[00:09:18] Speaker 02:
The preliminary order from the judge actually referred to lost employment opportunities, not lost educational opportunities.

[00:09:24] Speaker 02:
I assume that was just a typo.

[00:09:26] Speaker 00:
I'm assuming so your honor.

[00:09:28] Speaker 00:
I do want to move just and briefly the other independent basis of course is that LACCD forfeited the argument that emotional distress damages are unavailable by failing to raise at any time between 2017 when the case was filed and the 2019 trials as this court is held in asphalt versus LA United school districts the argument that emotional distress damages are unavailable under

[00:09:51] Speaker 00:
Section 504 have been have been colorable since at least 2002 when Barnes versus Gorman was decided.

[00:09:58] Speaker 00:
Yet LACCD waited eight days before the retrial in 2023 to first ask the court to preclude those damages, which was highly prejudicial to plaintiffs.

[00:10:08] Speaker 01:
So that I have some time to address the engine let me interrupt you there explain to me how that was highly prejudicial to you Because I feel like you just told us hey I put I put evidence in I you know I can show you how there's lost opportunity But now you're saying wait a second had they not done that we could have done a better job So your honor we would have supplemented not only with the loss of value of education and

[00:10:30] Speaker 00:
in terms of non-pecuniary damages, but we would have put forth, we would have focused discovery, we would have had more evidence of the economic loss as well.

[00:10:37] Speaker 00:
I mean, I can give you one example.

[00:10:40] Speaker 00:
Back in 2019, we actually had a vocational economist expert who had an opinion about lost wages because of the delay in receiving degrees from LACCD.

[00:10:51] Speaker 00:
The judge in 2019 precluded that expert from testifying.

[00:10:55] Speaker 00:
We didn't appeal that issue back in 2020 because we had been awarded emotional distress damages and we were fine with that.

[00:11:02] Speaker 00:
Had we known that there would have been a challenge to emotional distress damages, we certainly would have challenged that ruling.

[00:11:07] Speaker 00:
In addition, the Boger case from this court speaks about the prejudice of scrambling to kind of

[00:11:15] Speaker 00:
come up with a new theory of the case, a new theory of damages.

[00:11:18] Speaker 00:
We did it here, Your Honor, but we could have done even more, but for the last minute removal of this type of damages.

[00:11:26] Speaker 01:
And when did the Cummings case come out?

[00:11:28] Speaker 00:
It came out in April 2022, Your Honor.

[00:11:31] Speaker 00:
And so LACCD waited almost a year at that point to ask the court to preclude emotional distress damages.

[00:11:37] Speaker 00:
They didn't do an emotion in limine.

[00:11:39] Speaker 00:
The pretrial order in this case, we added, we had in there, the plaintiffs had in there that we were seeking emotional distress damages in addition to other types of damages.

[00:11:48] Speaker 00:
Defendants said nothing in the pretrial order.

[00:11:50] Speaker 00:
And there's certainly case law that by failing to raise that defense there, they've waived it additionally as well.

[00:11:56] Speaker 00:
I do want to quickly move on to the injunction issue.

[00:11:59] Speaker 00:
I'm not going to rehash all of our arguments in our brief, but I want to highlight two central things with the injunction.

[00:12:06] Speaker 00:
So, you know, as I mentioned, the jury here found 14 different ADA violations, nine of them intentional.

[00:12:12] Speaker 00:
The injunction addressed only four of those violations, really three issues.

[00:12:17] Speaker 00:
And the two points I want to highlight are one, the most glaring omission from the court's injunction is the failure to order LACCD to provide timely educational course materials.

[00:12:28] Speaker 00:
That is really foundational to the educational experience, getting your textbook chapters on time so you can keep up with class.

[00:12:33] Speaker 00:
But the injunction has nothing in there about it, even though the jury found that that violation was intentional.

[00:12:40] Speaker 00:
And the district court provided no explanation for why it omitted that particular form of relief from the injunction.

[00:12:47] Speaker 00:
The second overall point I just want to make about the injunction is, in essence, even though it is plaintiff's burden to prove a need for an injunction,

[00:12:56] Speaker 00:
It is when defendants argue that the reason an injunction shouldn't issue on certain points is because they've changed their ways.

[00:13:04] Speaker 00:
That is really a mootness argument.

[00:13:06] Speaker 00:
They're arguing voluntary cessation.

[00:13:08] Speaker 00:
And this court and the Supreme Court has made clear that that is a formidable burden

[00:13:12] Speaker 00:
defendant has to make it absolutely clear the legal misconduct won't reasonably occur.

[00:13:20] Speaker 00:
LACCD fell far short of meeting that burden, and the district court didn't hold them to that burden, and that is legal error.

[00:13:26] Speaker 00:
And, I mean, just by way of example, the two pieces of evidence the district court pointed to to show that LACCD had sufficiently changed its ways were its efforts to overhaul its websites to make them accessible and its adoption of this new policy, the equally effective

[00:13:41] Speaker 00:
alternative access policy, the EEAAP.

[00:13:44] Speaker 00:
The websites, we had undisputed evidence that they remained inaccessible as of the summer of 2023, six years after this case was filed.

[00:13:52] Speaker 00:
That evidence was undisputed.

[00:13:53] Speaker 00:
Even the district court must have credited it because it included an order to fix the websites as part of the injunction.

[00:14:00] Speaker 00:
So that's one.

[00:14:01] Speaker 00:
The EAAP plan is yet another policy on paper.

[00:14:05] Speaker 00:
The evidence in this case showed at least five different policies on paper that were very good, requiring LACCD to make sure their educational technology was accessible and to provide course materials on time.

[00:14:19] Speaker 00:
It ignored its policies.

[00:14:20] Speaker 00:
for the entire time at issue in this case, no reason to think they're going to start implementing the policy.

[00:14:27] Speaker 00:
And in fact, we had expert testimony opining that these policies were insufficient even as written.

[00:14:33] Speaker 00:
I do want to save some time for rebuttal, so I will pause there.

[00:14:36] Speaker 00:
Thank you.

[00:14:37] Speaker 03:
Thank you.

[00:14:42] Speaker 03:
Good morning.

[00:14:42] Speaker 03:
May it please the court, David Urban for Los Angeles Community College District.

[00:14:46] Speaker 03:
LACCD takes its obligations to the sight impaired and other students with disabilities very seriously.

[00:14:52] Speaker 03:
It has chosen not to appeal the injunction in this case to abide by it and to do right by the sight impaired and other disabled students at its colleges.

[00:15:02] Speaker 03:
I'd like to first address the damages issue.

[00:15:05] Speaker 03:
In terms of just the waiver argument, Cummings was decided in April of 2022.

[00:15:10] Speaker 03:
In August of 2022, we objected to jury instructions on emotional distress on the basis that Cummings had been decided and that they are no longer available.

[00:15:19] Speaker 03:
We did not ambush them at trial.

[00:15:21] Speaker 03:
It's ECF 444, plainly described to plaintiff's counsel.

[00:15:25] Speaker 03:
What plaintiff is saying is that we waited to make a motion

[00:15:28] Speaker 03:
Until later, but we had raised that issue with them and they are seasoned plaintiffs lawyers who would know that Cummings was decided and that impaired the ability to get emotional distress damages for title two cases What about their the argument of opposing counsel that you knew this was available since around 2002 or potentially available?

[00:15:47] Speaker 01:
I know Cummings didn't come out until way later, but

[00:15:50] Speaker 03:
From Barnes v. Gorman.

[00:15:51] Speaker 03:
Barnes v. Gorman dealt with punitive damages, a different aspect.

[00:15:54] Speaker 03:
It actually talked about that element of damages being special and being something that was unique for contract remedies.

[00:16:02] Speaker 03:
It's kind of further out from contract remedies and emotional distress damages.

[00:16:06] Speaker 03:
So Cummings brought it in a little closer, saying that emotional distress damages are precluded.

[00:16:12] Speaker 03:
Very quickly.

[00:16:13] Speaker 03:
Plaintiffs did not ask the jury for either emotional distress damages or lost opportunity damages 8 er 1439 They asked for tutoring textbook handbook modest damages That's what they asked the jury for the jury was not instructed on either emotional distress or lost they prohibited from asking for those things They are I'm going through the list of wide.

[00:16:33] Speaker 04:
I mean they were prohibited runner It's not like it's not like we can fault them for not having argued that the

[00:16:40] Speaker 04:
You told the district judge they shouldn't be allowed to do that and the district judge agreed with you.

[00:16:43] Speaker 03:
That's correct, Your Honor.

[00:16:44] Speaker 03:
They're asking to reinstate the verdict.

[00:16:45] Speaker 03:
Reinstate a verdict.

[00:16:46] Speaker 03:
They said they do not want to retrial on damages.

[00:16:50] Speaker 04:
But you think that's the remedy here?

[00:16:52] Speaker 04:
Is that your bottom line?

[00:16:53] Speaker 03:
No.

[00:16:54] Speaker 03:
They haven't asked for a retrial, so they basically said they would like the script.

[00:16:58] Speaker 04:
Well, I'd like to know what you think.

[00:17:00] Speaker 04:
If we think that the district court was wrong, then what do you think we need to do?

[00:17:07] Speaker 03:
There's nothing you'd have to do just have to affirm even though the district court was wrong because it was correct to grant the remitted or motion even if lost opportunity damages were available then They're not asking for a retrial They're asking to to have a jury verdict awarded in which as this court pointed out There's no way there's no understanding where the two hundred forty two thousand dollars came from is an emotional distress which is unavailable and

[00:17:29] Speaker 03:
is a lost opportunity.

[00:17:31] Speaker 03:
The jury awarded 242 plus attorney's fees.

[00:17:33] Speaker 03:
So they're not asking for attorneys.

[00:17:36] Speaker 04:
But if the district court got that wrong on the contract remedies.

[00:17:40] Speaker 03:
Yes.

[00:17:40] Speaker 04:
And so he precluded each.

[00:17:41] Speaker 03:
I'm sorry, they did not get that wrong on contract remedies.

[00:17:43] Speaker 03:
The district court was correct in precluding lost opportunity, not because it's unavailable under Title II, but because they had not presented evidence of reasonable certainty that would persuade the trier of fact.

[00:17:54] Speaker 03:
The court looked at it.

[00:17:55] Speaker 04:
Wait a minute.

[00:17:55] Speaker 04:
But I thought that they were precluded from making that argument.

[00:17:59] Speaker 04:
Didn't the motion in limine prohibit them from arguing that they were entitled to lost opportunity?

[00:18:04] Speaker 03:
It did, Your Honor.

[00:18:05] Speaker 04:
Okay.

[00:18:06] Speaker 04:
So if they can't do that and we find that that's error, then we've kind of got two ways that we can go here.

[00:18:13] Speaker 04:
We can either send this whole thing back for a trial on remedy, and maybe even broader.

[00:18:21] Speaker 04:
I don't know.

[00:18:21] Speaker 04:
But at least a trial on the remedy, on the damages.

[00:18:25] Speaker 04:
Or we can say, well,

[00:18:28] Speaker 04:
It's not perfect, but the two hundred eighteen thousand dollars for mr.. Payan represents the the the jury's best view as to what what what his damages were Understood your honor as the item want to retrial on damages plaintiffs have just said to this court and they say in their papers They do not want to retrial they want to reinstatement so that that option is off the table.

[00:18:48] Speaker 04:
I'm not sure why it is but I Understand your point okay the second option is

[00:18:54] Speaker 04:
It's not on my table, so just... Okay, I understood, Your Honor.

[00:18:58] Speaker 04:
I've got a big table here.

[00:18:59] Speaker 03:
You do, you do.

[00:19:02] Speaker 03:
Okay.

[00:19:03] Speaker 03:
The second option, the 242,000, there's just no accounting for what it is.

[00:19:07] Speaker 03:
And I'll explain further why it's improper.

[00:19:10] Speaker 03:
Also since that since they only asked for those damages or defense focused on those damages We did not we were not on notice we needed to present emotional distress as an issue at trial Not not aware that we would need to address lost opportunity defendant would be severely prejudiced a reinstatement of an award That was damaged also damaged by the district court's Ruling on the motion in limine

[00:19:37] Speaker 04:
Well, we weren't because because you weren't you're now not presenting a defense as to those questions That we were not present, but you did ask but you did ask the district judge not to allow those kinds of damages We did okay, I mean it's pretty much in the weeds here counsel, but you sort of invited this error Invited the error we we asked the judge for a ruling the ruling was sound on lost opportunity damages And I'll explain why so what is your current position on appeal on this lost opportunity damages are they?

[00:20:06] Speaker 02:
Available as a legal matter under title 2 of a da what's your position now?

[00:20:11] Speaker 03:
On that we think yeah on appeal here We actually have not taken a position Cummings emotional distress damage is not available lost opportunity damages They definitely have to be proved with reasonable certainty and that is clear and the the judge correctly ruled that lost opportunity damages were not available because nothing the judge was seeing had any kind of reasonable certainty

[00:20:32] Speaker 03:
The quote that plaintiff's counsel read, that was the best quote that they have, presumably, for lost opportunity damages.

[00:20:39] Speaker 03:
There was no number associated with that.

[00:20:42] Speaker 03:
There was no quantification whatsoever, even from lay witnesses like Mason and plaintiff, about what the lost educational opportunities damages were.

[00:20:49] Speaker 03:
So it would be impossible for the jury to award those.

[00:20:52] Speaker 03:
The jury was not instructed on lost opportunity damages, not instructed on emotional distress.

[00:20:57] Speaker 03:
Someone would come in who's not a lawyer, a juror,

[00:20:59] Speaker 03:
They're expected to award emotional distress damages having received no instruction on them So it would be impossible it would be impossible to reinstate this damages award that we don't know whether it's prohibited emotional distress or whether it's lost opportunity damages that I believe judge baby asked you, but I don't know that we got an answer if we Believe that the district court got it wrong and lost opportunity damages should have been available What are you asking us to do?

[00:21:27] Speaker 01:
I know that's you would say no they got it right, but let's assume we say no we think they got it wrong Should we just reinstate the award or should we say you have to have a retrial on damages?

[00:21:36] Speaker 03:
Affirm the award of remitted or because plaintiffs have not asked for a retrial There's no way to determine what what the 242 is you'd have to affirm the district court And they just I mean I know I hastened out the district court got it right on lost opportunity damages given the state of the evidence presented to the judge and

[00:21:52] Speaker 03:
So we affirm the jury award of two hundred and plus thousand dollars no your honor you would deny you'd have from the motion for remitted or reducing the award to 1650 even if we think they got it wrong even if we think that the the trial court got it wrong absolutely absolutely your honor because They've not requested a retrial and damages.

[00:22:10] Speaker 03:
They've requested reinstatement of the jury award that their papers say that

[00:22:15] Speaker 03:
Plaintiffs' Council just said that.

[00:22:17] Speaker 03:
This word cannot be reinstated.

[00:22:18] Speaker 03:
I know it's a conundrum for a court if it thinks that there was an error in the allowing of lost opportunity damages.

[00:22:25] Speaker 03:
But that's the state of this.

[00:22:27] Speaker 03:
This case has been around since 2017.

[00:22:29] Speaker 03:
It's been through a number of trials.

[00:22:31] Speaker 03:
I can certainly understand why there would be some kind of, what plaintiffs would want, some kind of resolution, as certainly does the district.

[00:22:39] Speaker 03:
We would like to remedy these issues and move along.

[00:22:42] Speaker 03:
By the way, going back to it, it's 2015 to 2018 violations.

[00:22:45] Speaker 03:
This goes under the injunction, but we've revised the websites at substantial expense so that they're WCAG 2.1 AA compliant.

[00:22:53] Speaker 03:
That's detailed in all of our declarations.

[00:22:55] Speaker 03:
There's a new EEAP process that assures procurement of materials that are accessible to blind students.

[00:23:03] Speaker 03:
We'd like to move on to that.

[00:23:04] Speaker 03:
I think everybody wants this case to conclude.

[00:23:08] Speaker 04:
Council, have you considered mediation?

[00:23:10] Speaker 04:
We have a very fine mediation unit.

[00:23:12] Speaker 04:
We did that last time we But you now have a jury verdict and you have benefit of at least Ten minutes of your of your time arguing here.

[00:23:21] Speaker 03:
I don't know certainly right you we would certainly consider the mediation project But we did it last time we would certainly be willing to do it again So moving on to the injunction The Basically it's it's

[00:23:39] Speaker 03:
Less extensive than the first time this court actually last time found that the injunction was overly broad this time it requires websites to be wicked 2.1 a compliant a fairly high standard and we believe we're achieving that the library resources the point of struggle with some of the resources in the library.

[00:23:57] Speaker 03:
The district court's injunction requires four items of improvement for the City College Library, and those have been put into effect.

[00:24:04] Speaker 03:
Accommodation letters, they used to be in paper format at the time of the 2015-2018 time period.

[00:24:09] Speaker 03:
They are now electronic, available to plaintiffs, and then the procurement system has been revamped.

[00:24:15] Speaker 03:
That was detailed in the trial, or in like, bench trial proceedings after the verdict was rendered.

[00:24:21] Speaker 03:
The adjunction is reviewed by this court under an abuse of discretion standard.

[00:24:25] Speaker 03:
Plaintiffs, they point to things that they feel unhappy about, no more.

[00:24:29] Speaker 04:
So, counsel, as I understand the concern, the jury came back and found that there were a number of violations by your client, that they were intentional.

[00:24:40] Speaker 04:
And the district court, with respect to certain kinds of accommodations,

[00:24:46] Speaker 04:
said well these are one-off incidents.

[00:24:51] Speaker 04:
That seems a little odd.

[00:24:55] Speaker 04:
Sometimes we only have a single plaintiff.

[00:24:58] Speaker 04:
Which means it can only be a one-off by definition because everything must be directed to a single plaintiff as opposed to a to a class.

[00:25:06] Speaker 04:
So I'm a little concerned as to why the district court didn't give injunctive relief as to matters on which the jury said the school district violated the ADA.

[00:25:18] Speaker 03:
Well, injunctive relief is not intended to punish the defendant or even to compensate the plaintiff in many respects.

[00:25:24] Speaker 03:
It's intended to prevent the violation from happening again.

[00:25:27] Speaker 04:
Right.

[00:25:29] Speaker 04:
Why shouldn't the district court have issued certain kinds of orders with respect to accommodations, with respect to access to PowerPoints and other kinds of classroom materials?

[00:25:38] Speaker 04:
Seems like that would have been simple enough to have ordered without violating some kind of federal state comedy.

[00:25:46] Speaker 03:
Certainly, Your Honor.

[00:25:46] Speaker 03:
The judge did that because after the jury verdict was rendered in the summer of 2023, he heard evidence on all the violations.

[00:25:54] Speaker 03:
What's happening currently at the district?

[00:25:56] Speaker 03:
2023 was a long time from 2017 2018 etc when these violations happened so Witnesses from the district came in and testified before the judge here is what happens now There's declarations from Nicole Alba Lopez and Carmen lids their vice-chancellors of the of the district So have you voluntarily is this a voluntary cessation question?

[00:26:18] Speaker 03:
No, Your Honor.

[00:26:20] Speaker 03:
One instance of liability, for example, Mr. Pine went into a class.

[00:26:24] Speaker 03:
He was going to audit it.

[00:26:25] Speaker 03:
He had a tape recorder.

[00:26:27] Speaker 03:
The professor saw his tape recorder and said, you can't tape record the class.

[00:26:30] Speaker 03:
I think it was 2018.

[00:26:33] Speaker 03:
And Mr. Pine said, I'm sight impaired.

[00:26:36] Speaker 03:
I need to tape the class.

[00:26:37] Speaker 03:
And the professor said, no, you can't.

[00:26:39] Speaker 03:
Nobody can tape this class.

[00:26:40] Speaker 03:
It's prohibited.

[00:26:41] Speaker 03:
The professor didn't know that he was required by policy to allow recording for any sight impaired student.

[00:26:47] Speaker 03:
It's actually a statute.

[00:26:48] Speaker 03:
It's certainly a policy of the district that that has to be done.

[00:26:51] Speaker 03:
So this is basically one professor making a mistake that's very, very unfortunate.

[00:26:58] Speaker 03:
But it did happen only once.

[00:27:00] Speaker 03:
And if the court issues an injunction now, all professors must permit recording.

[00:27:06] Speaker 03:
It would simply be duplicative of state law.

[00:27:09] Speaker 03:
And it would really be unnecessary.

[00:27:10] Speaker 03:
It's far after the fact.

[00:27:13] Speaker 03:
And the judge did hear evidence from our witnesses, who basically said that things are fine now.

[00:27:20] Speaker 03:
And the judge nevertheless said, you say they're fine, but for the websites, we're going to make you, under a penalty of injunction, comply with the very high standard, WCAG 2.1 AA.

[00:27:30] Speaker 03:
Although you say your EAP process will prevent violations of the ADA, the judge required us to periodically monitor

[00:27:37] Speaker 03:
the voluntary product accessibility templates, VPATs, from third-party vendors, so that if we can't just take their word for it, we have to periodically monitor whether they are actually saying their accessibility standards correctly.

[00:27:55] Speaker 03:
So that's basically the point of the injunction, and also there's the overall consideration that

[00:28:01] Speaker 03:
If this court did remand for more proceedings on the injunction, it would be the third injunction in this case.

[00:28:05] Speaker 03:
And it seems like there would need to be closure at some point of this matter.

[00:28:10] Speaker 03:
Same for the damages.

[00:28:12] Speaker 03:
And I understand there's an interest in mediation by this court.

[00:28:17] Speaker 03:
But we were sent to the mediation program last time, happy to do it again.

[00:28:23] Speaker 03:
I actually have nothing further.

[00:28:24] Speaker 03:
But if you have questions.

[00:28:25] Speaker 03:
Great.

[00:28:26] Speaker 03:
Thank you.

[00:28:27] Speaker 03:
Thank you.

[00:28:39] Speaker 00:
I know I have just a little time remaining.

[00:28:41] Speaker 00:
I just want to hit a couple of points.

[00:28:44] Speaker 00:
First, with respect to the damages, I again just want to emphasize the court's instruction allowed for lost opportunity damages.

[00:28:52] Speaker 00:
LACCD never objected to that instruction.

[00:28:55] Speaker 00:
That could and should end the inquiry right there.

[00:28:59] Speaker 00:
So that's number one.

[00:29:00] Speaker 00:
The second is, opposing counsel talked about the reasonable certainty requirement from the restatement of contracts.

[00:29:06] Speaker 00:
And this is in our reply brief, but the restatement talks about how other factors, including willfulness, sometimes require a lesser degree of certainty, but also that damages need not be calculated with, quote, mathematical accuracy.

[00:29:21] Speaker 00:
And it gives us an example of when that's the case, the loss of goodwill, which juries regularly approximate.

[00:29:28] Speaker 00:
So that's on the damages point.

[00:29:30] Speaker 00:
On the injunction,

[00:29:32] Speaker 00:
I'm glad Judge Bybee raised the one-off issue.

[00:29:35] Speaker 00:
I mean, this is a case where the jury found, I mean, according to LACCD, multiple one-offs, which really shows a pattern.

[00:29:42] Speaker 00:
And every one-off, I mean, I know opposing counsel talked about how the recording issue violated a policy.

[00:29:48] Speaker 00:
Every single one of those violations violated an existing policy at LACCD, which is why the jury found deliberate indifference.

[00:29:55] Speaker 00:
And so an injunction here is truly necessary to ensure that this doesn't keep repeating, that the next

[00:30:00] Speaker 00:
National Federation of the Blind member who attends LACCD doesn't get their textbook chapters late and have to start a new lawsuit all over again.

[00:30:08] Speaker 00:
Thank you, Your Honors.

[00:30:10] Speaker 02:
Thank you both for the helpful argument.

[00:30:12] Speaker 02:
The case is submitted.