this morning the court has an opportunity to assist both parties that both businesses and disabled plaintiffs to understand how to bring a case for discrimination based on the operations o businesses and providing their services and goods this is not a case in regards to physical barriers which for which there is a good amount of information as to how one brings that the burden is back and forth on the remainder but in this case what the what mr galavis is seeking is for the court to provide the parties with clear concise and enforceable standards on what it means to bring a claim for discrimination based on a service that was not provided in a full and equal manner the court in the the district court makes several very and very large errors both in statutory construction and interpretation of law for the statutory construction problems the court did not evaluate a review plaintiff's cross motion for summary judgment simply mooted it out after finding that plaintiffs had failed to meet and essential element of bringing a case additionally all of the facts that were disputed and virtually all of the facts in defendant's motion for summary judgment or disputed were taken as truthful even though plaintiff was not the moving party providing transportation to people in wheelchairs the it is disparate is disputed that in fact they train and assist their people in how to provide this service for them it is disputed that he did not that mr galveston not request accessible transportation or a method to get home on the two incidents and he's discussed it is also disputed that he did not ask for the policies and procedures or what happens in this so those facts well let's start with the last one when the district court did not conclude that he did not ask for a policies there was evidence to support the proposition that he did ask for a policy change while the court actually grudgingly came to it in a different sort of manner but the question that we before the court was the court only took the other air significant areas the court only took a portion of the relevant sat statute and it's subsections to make this determination the issue is not is there a d request a modification of policy procedure or practice which is what the actual code says the court just said did you ask to modify a policy and importantly in what relief do you seek the relief that i seek is is twofold one to have the court explain why it was error no i'm asking what relief you seek not just from os but in this lawsuit you seek an injunction what's the injunction supposed to say the injunction is supposed to say you have policies that you've written out that say you provide transportation to persons in wheelchairs during emergency services we want you to implement practices and procedures that actually work and that's not sure that's helpful because i think you need to identify what it is mean that court you're asking the court to enter an injunction telling defendants to do something and and just telling him do something nondiscriminatory isn't isn't very helpful what is exactly the change you seek well in fact that is the largest air i believe the district court made because this was not a motion for a for an injunction this was a that's what the lawsuits for the lawsuit is for damages attorney's fees an injunction well but x how many rental cars how many third party providers until they tell us we don't know what to do well that places a burden that is on tenable on the plaintiffs because we don't know how for example aaa has never a motion judgment resemble you had opportunity discovery point by this point in time that it's not it doesn't seem unreasonable to me to expect an articulation of what it is that question to true and we did actually make suggestions but let me go back to what's really happening here for the burton well it's am i ever going to get an answer to the question of what policy change you see yes i want them to be open as to what they ask how many they actually serve they say they take six million phone calls for people in their district from fresno to san diego every year when we have asked them how many of those phone calls are for persons that require accessible transportation no answer you can ask to play when they come up how many that's not answering well it it may be information would useful in fashioning an answer but that's information you presumably obtain through discovery the but that's the issue of how is a plaintive and by the way this was said that according to the district court plaited has to provide this information before filing litigation before filing litigation plaintiff has to tell them exactly what they're supposed to do and then they have to refuse it and then they come forward no i'm not trying to answer that question i'm trying to answer the question as best we know now what is it you're proposing the defendants do we have proposed that they review the number of calls that they actually require accessible transportation that they utilize third party providers which is something they've begun to do during this litigation that they actually investigate whether the excessive bill taxes that they have a list for actually are accessible because every one of the calls for taxis in the exhibit of one of their representatives sent when they did send taxis were inaccessible taxis also well but say ok i'm going to the record of this case and i remember i'm losing track i guess that a dialogue back and forth between the auto club service representative in your client where and i can understand the frustration passage of time whatever when when he's asked about obtaining accessible transportation he doesn't say well the last one you sent couldn't actually transport me he says and all call a friend to take me well and i think that's an important just so so what evidence do we have of this theory of complaints that you're you're saying we should be dealing with well let me just give you an example from their record because we don't have any we asked for all the complaints we ask for all this it's got nothing so do you but that doesn't help me now well as i have a record that i have but it but i have the record that shows what they say they do and that record indicates that when i deposed the representative for their policies and how they do emergency routes and services in this he would one of the things that she indicated she provided in the declaration for the motion for summary judgment was a list of what they called call logs now they provided these call logs that any breakdown they just said this indicates excellent service it's not our job to referee discovery below that's now we do and that's what you've been talking about for the last six or seven if i may tell you why this is an actual error in the law becau didn't let didn't dismiss this because after discovery we couldn't get everything done you want to court has a policy i am not clear on your position as to why this policy th r ten to eleven or as of i with here because the act is not limited to a modification of policy it has subsections that are in our complaint that indicates they have to take steps to ensure that they're actually providing the services you're if you're as i understood what the policy is if you're not disable and you need roadside assistance and your vehicle needs to be towed you can ride along in the cab of the tow truck that's correct right yes that's correct if you are disabled maybe you have a will chair or you can't get into the truck because if you you're sort of stuck right yes and this is why i think it's important to indicate that it's not just a policy it's how they have they taken any steps to introduce it when my client well what i was going to say but as i understand it from the policy is their first question at that point is do you have somebody who can then assist you yes that's one of the questions they ask right yes what's wrong with that why doesn't that because that realize i don't think anything wrong with it and there are some would prefer their family but of course everyone the reasonable question that doesn't offend the right no that is a reasonable question the other question though is when someone says no i don't have a friend or family to pick me up their next question is can we call paratransit for you which is a government service that doesn't apply to any of this all of the call logs indicate that they asked them  secondly the question of what they actually have it doesn't matter if they ask you would you like assistance with this when they haven't done anything to bring it about so for example enduring to say it they could say well you can't get it ok we understand you can't get into the cab you're on the freeway truck needs to be towed we'll send a cab for you a cab is not an x be there and you know twenty m well a cab for a person like mr galvez who is paralyzed from the waist down is not an accessible form of transportation because they can't transfer into it and many clients have fallen in trying to transfer into a car it isn't sufficient to say we'll send you there are accessible taxis but they actually have to have a contract with them and work with them to do that there are accessible third party vendors which we actually gave them the names of some that will actually do it there are they contract or whatever independent contractors with hundreds if not thousands of top truck companies they only cited two in los angeles that they use for all of the six million calls you  on behalf of your client under the not to run their business that's absolutely true and that's what it sounds to me like you know what i was answering was the question of so what do what can they do i'm giving advice i am not saying and that's been the argument that was the hyperbole raised by defense we're not saying that because there are ways to provide we ask for accessible transportation they provide transportation that's their service so under the a d f a they have a duty to a value with their services and see how they can provide it to a person with disabilities by the way that they the first time it was four hours before they finally tried to get somebody out on it i asked the dispatcher for he indicated to them i cannot get out and i cannot climb  spec is not standing on interstate far what the dispatcher knows is what he is told by the client is making the requests that he's in a wheelchair so so he knows the client is is in a wheelchair that's just the beginning why is it unreasonable for the auto company to ass this series of questions i mean what's wrong with the series of course that is your services on your back so let me indicate that this is what the major pipe problem and legal problem was interpreted these the question isn't is there written policy so offensive that it's not usable answer that because i know i'm running out of time thank you the issue isn't that simply you have a policy whether it's used or not which i'm saying it's not used anyway the issue is can you actually demonstrate because the from their record that they have submitted and my client i've also had two other cases filed in this case for exactly the same basis from their own records from their representative saying that there was excellent service not a single one of them except for somebody in a medical emergency that got an ambulance was provided with anything like the service they were quested one of the three of them actually out of the eleven that they only give me a lab so that's the only thing they were even cherry picking a leve out of the eleven three left because they never showed up after hours one way to five and half hours and was told in his car problem with this approach that we're not an administrative body we don't run the business you don't run the business we have a before you file i'm trying to get the court to give the standards of what it means to make a request and what it means to be able to bring this case because this case doesn't follow any law that is out there for health things actually work yes we will do this they just don't do it ok thank you you're over  uses to provide accessible transportation to those members and if you look at the sheer quantity of circumstances under which the auto club provides different types of services to these disabled members it's important that the policy that the article has to follow must be a flexible one and that's why it is designed this policy to provide different types of accessible transportation in different types of scenarios whether that involves getting the car and vehicle mobile first whether that involves providing an accessible taxi whether that involves providing assistance with respect to contacting friends or family members or going beyond those obligations to try to figure out what's what serves the disabled member best under those circumstances the plaintiff indicated that she's asking the court the day has to prove and that includes the fact the defendant employed a discriminatory policy in practice and that the defendant discriminate against the plaintiff by failing to make a request a reason modification that was necessary to plaintiffs disability and here plaintiff is let me ask you this a non disabled person who needs roadside assistance easy if they might have five passengers with them right right anon disabled person however first question they have to the road so the dispatcher has to ask is would you like us to call somebody well i think the first question that they had they should be asked is are the us safe location because the number one priority is there's a difference in circumstances here whether someone might be broken down on the freeway in a dangerous situation or in a parking lot and that might turn the type of service that they receive so if they're in a car so if well let's let's he was on the freeway right in one in one of in one of the other is since he was downtown correct correct and so in the first instance so if you actually so party you go back and look at the actual factual record the article people records of of these calls you can actually go back and listen to what was stated and what happened is in that first call he actually in we thought was a flat tire and he informed the article of that he had a spare tire so the first thing because he's on the freeway was hey let's go try to fix the spare tire and get the vehicle moving and so that point that was actually the last time auto club her come communicate with the plaintiff was during that initial call because the independent service provider that went out there made the judgment call that th the freeway was a dangerous location in conjunction with i think there's a california highway patrol officer that arrived to try to get the plaintiffs off the freeway because that's a dangerous situation on the left hand side he was in the far right so it's a it's a dangerous situation for the disabled members a dangerous situation for the service provider it's a dangerous situation for the any officers or other vehicles that have come to assist him and so in that situation  the determination was made we're going to tow the the member you know off the freeway to a nearby tire store to changes where he remained in the vehicle didn't he correct he did during that particular instance and that's sort of a good example of what we're talking about here which is ok that might be what the policy is and that's what the germination we've made come up with that policy working with the california highway patrol to figure out that might be the best option here because it's a dangerous dangerous situation what we haven't heard is what is the alternative what can you make a request for us to change that policy given your individual circumstances of the policy as reflected the operations manual as a series of questions about there are some one who can a friend or family member who you want us to call otherwise over vied inaccessible taxi is some kind and at least as put forward by one to that's not what happened the first time you can say that circumstances caused the change but in the policy sounds reasonable but execution from flight is respective was not so reasonable well it was not equivalent well again if you look at the actual record of what happened during that call the information that auto club understood was that he was able to get the vehicle moving and so then there wasn't a need for alternative transportation so the in the first instance there the concept was we can get the vehicle moving by changing the tire and just like you anybody would whether non disabled or disabled to get the car moving and so there was no opportunity for any kind of work and we never never triggered the policy essentially because that's for providing accessible transportation of the individual not the vehicle in the if you look at the second instance that's pretty much the same thing that happened there which was if you look at the actual calls it was oh i think i'm out of gasoline oh i think the batteries dead except for and so the it wasn't really about finding transportation until the called in service for a few hours and then the call the question was raised hey do you we i might need help here because i  can't get the car working can i get some transportation and the operator began sort of asking about how we're going to transport the member and was informed that he has he has a friend that's going to come pick him up so that point the auto club was understood that he was in a safe in a safe location i think there's even record testimony about the tow truck are they in a service writer actually talked to the security guard to make sure he was he was safe before he left  the member in that location so policy itself is is is followed and is working what we're missing here what the district court basically found was there is no evidence there's no specific request of how to change it or what specific procedure we'd like him from did you understand the district court to say that he made a request for modification i understood that this is that he didn't specify what the put exactly but the district court found was you've now had the chance to conduct discovery you've now deposed you've gotten our policies you've now depose or individuals at this point you know what our practices are you know what our procedures are you haven't told me how you'd like me to change that you haven't given me any evidence that any proposed change you want is reasonable or is necessary and so how am i supposed to evaluate or pro give you an injunction on the  relief or requesting when you can't even tell me what that change is and i think when the plaintiff was up here you your honour's asked that question what change do you want to make and the district or below struggling struggle with that exact same question because auto club needs the opportunity to evaluate hey is that a reasonable solution or is this so as it says this to court conclude well there there is no discrimination under the act i the believe the district court reached that could reach that in an injury at all i think the district the district court basically found that the policy the auto club had is nondiscriminatory  case to ask the district court what to do at summary judgment and so as a result there was no there's nothing for the district court to evaluate in terms of evidence in terms of if you look at the actual cases that where the this  court and the three court of identify these policy modification questions the question was asked if there's use a very specific question in that like for instance in the bombing case i would like to use segues disneyland that's how i can provide access and contact to disneyland before that before the case began i would like to be able to use that and then there's a valuation is that reasonable is a not reasonable but there is and the parties get your severance here there's no specific identification of what that is for instance if i say if the plaintiff was to say i would life when she tried accessible transportation by having more than two accessible to southern california then the parties then the court could evaluate the partner's evidence is that  reasonable does that adequately serve a needs of you know ten million ten million people in southern california or is that not a reasonable solution how do we figure that out operationally and there was no evidence on that so i'm just there to of the elements to make a that a plaintiff must satisfy in order to maintain a claim a public accommodations going is that the defendant discriminated against the plaintiff based upon his disability by failing to make a requested reasonable modification that was necessary to accommodate the disability rights so is it that the district court said you didn't make a reasonable you didn't request a reasonable modification is that what the district court concluded yes that the district court concluded the plaintiffs did not identify a specific reason as a matter of law or act there's no there's no dispute there no there are no factual disputes there's no factual dispute the plaintiff did not make a reasonable request to accommodation as a matter of law and as a matter of law the claim fails right because there is no identified modification by which for the court to way essentially because that the plaintiff here is asking ass essentially asking district court enter an injunction as to how it's mot how it would like auto club to modif aaa should do is just say we'll send a car we'll send you know but we'll just send a cab or we'll send transport or some other kind of vehicle maybe they have their own little vehicle fleet that whether you have a little agency or something separate contract but you need to have a little brat of vehicles that could respond right and then which case there would be opportunity for that the plaintiff should introduce some kind of evidence on that question why that's reasonable mobility or wheelchair disabled that information isn't separately tracked at the auto club in terms of they don't i don't they don't because we wouldn't even know in terms of a member would have to formally of identify themselves as disabled a lot of the calls again if it's a vehicle breakdown we wouldn't know if the member was had it had a disability and so that information isn't really separately recorded at that out of club but the complaint here is  what what the individual plaintive says happened to him suggests possibly a failure in execution in particular i think it's the august should have written down the date and it was the august episode where they were ultimately two different trucks that arrived at the scene the first one couldn't go the second was a flatbed truck and neither time was there anybody prepared to deal with his mobility issue i suppose the claim is ok the policy which the auto club has is reasonable but it doesn't get implemented effectively or didn't get implemented in my circumstance affectively what is that just plain you should ask for their well i think i think the the plaintiff can conduct discovery that's how they would like to proceed on their claim there's nothing  plaintiffs from you know what many many people are article of members of the plaintiff counsels will connect with those individuals try to see what kind of service they've received and i would dispute that the service in our that actually went was a from the freeway service patrol which is an auto club that's they have that person actually happened on the scene so it's sort of a different scenario here another person who was there to assessed assist point i it happens to a non disabled person on the freeway emergency situations i don't want to get now so truck but that's a hypothetical how they would depend on circumstances are there i think it's i think you're not allowed to be down there i imagine a police officer would just wait out there on the freeway for a police officer to come by having a patrol officer look over if someone could walk off the freeway or something like that that's suppose a person two specifically says that it is discrimination to that minister your program in a way that denies disability persons as well as with an equal access he indicated it was not to place fault it's the independent contractor out there on the freeway secondly the same statute which was cited in a complaint indicates that it is discrimination it's defined as discrimination if a public accommodation does not take steps as are necessary to ensure that they do not exclude the goods and services to persons with disabilities you just heard you just heard opposing counsel say we don't know what we actually how many people actually call out of the six million now then they're going to need something don't you have to actually make a note and according to their own policies they're supposed to contact the supervisor and say we have a wheelchair user yet no one has taken any steps to identify what they would actually need ok now you're over here by the minute