                      UNITED STATES COURT OF APPEALS                     FILED
                          FOR THE NINTH CIRCUIT                           JUL 17 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
CHARLES ANTHONY GUERRA; et al.,                No.   18-56236

               Plaintiffs-Appellants,          D.C. No.
                                               2:16-cv-06796-MWF-KS
 v.                                            Central District of California,
                                               Los Angeles
WEST LOS ANGELES COLLEGE; LOS
ANGELES COMMUNITY COLLEGE                      ORDER
DISTRICT,

               Defendants-Appellees.

Before: HURWITZ and FRIEDLAND, Circuit Judges, and KORMAN,* District
Judge.

      The memorandum disposition filed April 30, 2020, is hereby amended. The

amended memorandum disposition is filed concurrently with this order.

      With this amendment, the panel has unanimously voted to deny Defendants-

Appellees’ petition for panel rehearing. Judges Hurwitz and Friedland have voted

to deny the petition for rehearing en banc, and Judge Korman has so

recommended. The full court has been advised of the petition for rehearing en

banc, and no judge has requested a vote on whether to rehear the matter en banc.

Fed. R. App. P. 35.



      *
             The Honorable Edward R. Korman, United States District Judge for
the Eastern District of New York, sitting by designation.
      The petition for panel rehearing and rehearing en banc is DENIED. Future

petitions for rehearing will be permitted under the usual deadlines outlined in

Federal Rules of Appellate Procedure 35(c) and 40(a)(1).




                                          2
                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JUL 17 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

CHARLES ANTHONY GUERRA; et al.,                 No.    18-56236

                Plaintiffs-Appellants,          D.C. No.
                                                2:16-cv-06796-MWF-KS
 v.
                                                AMENDED
WEST LOS ANGELES COLLEGE; LOS                   MEMORANDUM*
ANGELES COMMUNITY COLLEGE
DISTRICT,

                Defendants-Appellees.

                  Appeal from the United States District Court
                      for the Central District of California
                 Michael W. Fitzgerald, District Judge, Presiding

                      Argued and Submitted March 2, 2020
                      Submission Withdrawn March 4, 2020
                          Resubmitted April 30, 2020
                              Pasadena, California

Before: HURWITZ and FRIEDLAND, Circuit Judges, and KORMAN,** District
Judge.

      Plaintiffs Charles Guerra, Chrystal, and Karlton Bontrager are students with



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Edward R. Korman, United States District Judge for
the Eastern District of New York, sitting by designation.
physical disabilities who attend West Los Angeles College (“WLAC”). They sued

WLAC and the Los Angeles Community College District, invoking Title II of the

Americans with Disabilities Act, Section 504 of the Rehabilitation Act, and various

California state laws, and alleging that the termination of WLAC’s on-campus

shuttle service has restricted their access to WLAC’s programs and services. After

a six-day bench trial, the district court rendered a judgment in Defendants’ favor

on all claims. We have jurisdiction over Plaintiffs’ appeal from the judgment

under 28 U.S.C. § 1291. We reverse as to Guerra and Chrystal, vacate as to

Bontrager, and remand.

      Title II and Section 504 both require a public entity to provide individuals

with disabilities “meaningful access” to its programs and services. K.M. ex rel.

Bright v. Tustin Unified Sch. Dist., 725 F.3d 1088, 1102 (9th Cir. 2013). In

particular, “Title II emphasizes ‘program access,’ meaning that a public entity’s

programs and services, viewed in their entirety,” must be meaningfully accessible

to individuals with disabilities. Cohen v. City of Culver City, 754 F.3d 690, 694-95

(9th Cir. 2014); see 28 C.F.R. § 35.150(a).

      Guerra and Chrystal have not had meaningful access to WLAC’s programs

and services since the shuttle service ended. The record belies Defendants’

assertion that Guerra and Chrystal could achieve that access by navigating the

campus using motorized scooters or on foot. Guerra has obtained a scooter from


                                         2
the California Department of Rehabilitation (“DOR”), but his vehicle is not

equipped to transport the scooter to and from WLAC.1 He is waiting on the DOR

to determine whether it will cover the substantial costs required to make the

necessary modifications. And Chrystal does not even have a scooter. Based on

Guerra’s experience, it could take Chrystal well over a year to receive one from the

DOR, assuming her request is approved. Access that is contingent on the

occurrence of uncertain future events is not currently meaningful.

      Further, the record is clear that Guerra and Chrystal cannot currently access

all relevant parts of the WLAC campus by walking. As the district court found,

Guerra struggles to walk more than fifty feet and Chrystal can only walk “several

steps” at a time due to their disabilities. Unsurprisingly, then, they have both been

forced to scale back their participation in campus life since the shuttle service

ended. For example, Chrystal had to drop a French class and Guerra could not take

part in poetry readings because those programs were held in buildings that were

difficult to reach on foot.2


      1
         WLAC asserts that Guerra could use the Los Angeles paratransit service to
transport his scooter from his home to WLAC, but the evidence shows that the
paratransit service is not sufficiently reliable or flexible to accommodate his
college schedule.
       2
         These deprivations of access are markedly more severe than those at issue
in Kirola v. City & County of San Francisco, 860 F.3d 1164 (9th Cir. 2017), and
Daubert v. Lindsay Unified School District, 760 F.3d 982 (9th Cir. 2014), the cases
on which Defendants primarily rely. In Kirola, “no [plaintiff] testified that there


                                          3
      Because we conclude that Guerra and Chrystal have been denied meaningful

access to WLAC’s programs and services, we reverse the judgment as to those two

Plaintiffs and remand for further proceedings consistent with this disposition.

With respect to the Title II claim, the district court should determine what

“reasonable modifications” Defendants can make to provide Guerra and Chrystal

with the requisite access. See 28 C.F.R. § 35.130(b)(7); Cohen, 754 F.3d at 695.

      We are unable to discern on this record whether Bontrager has also been

denied meaningful access. The district court found that Bontrager can access all

relevant parts of WLAC on foot once he arrives at the campus bus stop. That

finding is not clearly erroneous. But Bontrager argues that it is a challenge for him

to get from his home to the campus bus stop. He has tried walking, but a section of

the route within the WLAC campus includes a steep incline that he struggles to

overcome. He also testified that he cannot rely on the Culver City bus for his

commute, because “only every other bus” on the line that stops near his home goes

to the WLAC campus, and because the bus does not always run on the posted

schedule. It is not clear from this evidence whether the infrequency and

unreliability of the bus service are such that Bontrager cannot depend on the bus to


were locations in the city that such [plaintiff] could not reach because of access
barriers.” 860 F.3d at 1183. And although the plaintiff in Daubert could not sit in
the bleachers of a high school football field because of his wheelchair, he was
“able to sit directly in front of the bleachers, to each side of the bleachers, and in
other areas where spectators congregate” during football games. 760 F.3d at 988.

                                          4
get to campus at the times he needs to be there. We accordingly vacate the

judgment as to Bontrager and remand for the district court to resolve this

evidentiary issue. Should the district court determine that Bontrager cannot rely on

the Culver City bus to surmount the steeply inclined path on the WLAC campus,

the district court must then decide what “reasonable modifications” WLAC could

make to restore Bontrager’s meaningful access to its programs and services. See

28 C.F.R. § 35.130(b)(7)(i).

      REVERSED in part, VACATED in part, and REMANDED.




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