Opinion
Case No. 2:22-cv-05880-SPG-JPR
2023-03-31
Tifanny ESPINO, Lourdes Espino, and Christopher Coria, Plaintiff, v. REGENTS OF THE UNIVERSITY OF CALIFORNIA and Does 1-20, inclusive, Defendants.
Catherine Cabalo, Peiffer Wolf Carr Kane & Conway, San Francisco, CA, for Plaintiffs. Todd E. Croutch, Daniel K. Dik, Fraser Watson and Croutch LLP, Glendale, CA, Stephen C. Fraser, Marijana Kral, Fraser Watson and Croutch LLP, Orange, CA, for Defendants.
Catherine Cabalo, Peiffer Wolf Carr Kane & Conway, San Francisco, CA, for Plaintiffs. Todd E. Croutch, Daniel K. Dik, Fraser Watson and Croutch LLP, Glendale, CA, Stephen C. Fraser, Marijana Kral, Fraser Watson and Croutch LLP, Orange, CA, for Defendants.
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT REGENTS OF THE UNIVERSITY OF CALIFORNIA'S MOTION TO DISMISS [ECF No. 19]
SHERILYN PEACE GARNETT, UNITED STATES DISTRICT JUDGE
Before the Court is Defendant Regents of the University of California ("Defendant") motion to dismiss ("Motion") pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). (ECF No. 19 ("Mot.")). The Court heard oral argument on this matter on February 22, 2023. Having considered the parties' submissions, the relevant law, the record in this case, and the hearing on the Motion, the Court GRANTS IN PART and DENIES IN PART Defendant's Motion.
I. BACKGROUND
A. Factual Background
The complaint alleges as follows: Plaintiff Tiffany Espino ("Espino") is an individual who resides with her mother, Lourdes Espino ("Lourdes"), in Palmdale, California. (ECF No. 1 ¶ 8 ("Compl.")). Espino has multiple disabilities. (Id. ¶ 14). She is unable to use her legs, requiring the use of a wheelchair, and has limited use of her hands and arms. (Id.). She also suffers from visual disabilities that make her sensitive to light and blurs her vision. (Id.). Additionally, Espino requires the use of a feeding tube, is unable to speak verbally, and relies on an iPad's text-to-speech application and a keyboard to communicate in English. (Id.). When she is unable to type on her iPad, Espino utilizes American sign language ("ASL"), which must be modified because of her hand deformity and limited mobility. (Id.). Moreover, Espino's complex regional pain syndrome ("CPRS") and neuromuscular condition cause extreme pain when she is touched and moved. (Id. ¶ 19). These conditions also cause Espino's bones and joints to be so stiff that they are placed at a high risk of breaking if she is moved or transferred the "wrong way." (Id.). Espino also has a urological neurostimulator implant called an "interstim," a metal box in her abdomen along with wires that are attached at the base of her spine. (Id.). Thus, extra care must be taken when moving and transferring her to avoid displacement of the wires. (Id.). For these reasons, Espino requires assistance with daily living. See (id. ¶ 14).
Because Plaintiff and her mother have the same last name, the Court will refer to Ms. Lourdes Espino by her first name to avoid confusion. No disrespect is intended.
Aside from modified ASL interpreters, Plaintiffs Lourdes and Christopher Coria ("Coria") (collectively with Espino, "Plaintiffs") are the only people who can understand Espino's modified ASL, as well as her bodily cues that signal that she needs assistance (e.g., watching for chest spasms which indicate fluid buildup that must be suctioned/drained to assist her breathing). (Id. ¶ 15). Lourdes serves as her daughter's primary caregiver. (Id. ¶ 16). In this role, Lourdes accompanies her daughter to all of her medical appointments and surgeries. (Id.). Coria is Espino's boyfriend. (Id. ¶ 17). Coria also acts as a caregiver by accompanying Espino to her medical appointments and surgeries. (Id.).
Defendant Regents of the University of California ("Defendant") is a California public corporation that owns, operates, and/or controls UCLA Health, a health system comprised of hospitals in the Los Angeles, California region. (Id. ¶ 11). These hospitals include UCLA Santa Monica Medical Center and Ronald Regan UCLA Medical Center. See id. DOES 1-5 are public entities and the owners, operators, lessors, and/or lessees of UCLA Health hospitals. (Id. ¶ 12). DOES 6-20 are employees and/or agents of Defendant and/or UCLA Health hospitals. (Id.). Defendant and DOES 1-5 receive federal financial assistance, including Medicaid reimbursements or other funds. See (id. ¶ 110).
1. August 19, 2020: Surgery at UCLA Santa Monica Medical Center
On August 19, 2020, Espino was scheduled to have surgery at UCLA Santa Monica Medical Center in order to have a feeding tube and chest catheter placed. (Id. ¶ 18). In the weeks preceding the surgery, Espino worked with her treating providers and the hospital's medical team to decide on reasonable accommodations for her medical conditions and extensive history of complications with anesthesia. (Id.). Because of COVID restrictions at the time, Plaintiffs understood that neither Lourdes nor Coria would be allowed into the operating room ("OR") with her on the date of the surgery. (Id. ¶ 20). However, based on her medical conditions, and her inability to communicate effectively without assistance, Espino specifically requested as an accommodation having either Lourdes or Coria with her before the surgery in the "pre-op" area to interpret for Espino and to assist her in explaining to the medical team and staff the nuances of her medical conditions and how she should be moved and handled before, during, and after any procedures. See (id.).
Plaintiffs "thoroughly discussed" all these issues and factors with Espino's treatment providers and hospital representatives, and everyone agreed that Espino would be accommodated by allowing either Lourdes or Coria to be with her before the surgery in the pre-op area. (Id. ¶ 21). Anesthesiologist Dr. Dane Saska was designated the lead in ensuring everything would go smoothly on the day of the surgery. (Id.).
On the day of the surgery, Saska came to Espino's room, reviewed the modified ASL that Espino would use in case of emergency if she gained consciousness during the procedure, and created a plan to keep Espino calm beforehand. (Id. ¶ 22). Saska also said that he would give Espino a calming sedative intravenously once she arrived in the pre-op area instead of giving her an oral medication, which would take hours to take effect due to Espino's slow intestinal motility. (Id.).
After the hospital's transfer team was called to pick up Espino to take her to the OR, one member of the transport team arrived 30 minutes late, and the respiratory therapist arrived at the same time. (Id. ¶ 23). The transport team told Espino that she had time to do her Atrovent treatment (an inhalation aerosol) since they were still waiting for the second member of the transport team to arrive. (Id.). By that time, they were approximately 40 minutes late for the scheduled procedure. (Id.). Rushed, the transport team began taking Espino downstairs, with Lourdes and Coria following. (Id.).
When Plaintiffs arrived at the surgical floor, Lourdes and Coria continued following Espino and the transfer team with the intention of having one of them remain with Espino in the pre-op area until the scheduled surgery. (Id. ¶ 24). However, Lourdes and Coria were stopped by OR staff members, including a nurse who blocked their way and told them: "No, there is NO ONE allowed here." (Id.). While Lourdes and Coria attempted to explain the previously established accommodation plan, other members of the OR staff began pulling Espino's bed away. (Id.). Espino began to panic and started pressing her call-alert button on her gurney repeatedly to try to communicate that she was afraid and not ready to be wheeled in. (Id. ¶ 25). By typing, Espino asked to be brought to anesthesiology and that she could not go in without Lourdes. (Id. ¶ 26). Instead, the OR staff pushed Espino on the gurney away from her family, saying "No. We are taking you in immediately and no one comes with you." (Id.). Lourdes and Coria requested to see Saska. (Id. ¶ 27). However, a different anesthesiologist came out whom Plaintiffs had never met before. (Id.). Lourdes and Coria tried to explain to this new anesthesiologist that they had an accommodation plan in place, but the hospital staff continued to reject their requests. (Id.).
After some confusion about whether Espino was to receive oral sedative medication to calm her instead of intravenous medication, the new anesthesiologist told Espino that he could give her medication while she was waiting on the gurney in the hallway, and that she would be unconscious shortly. (Id. ¶ 28). Espino typed: "What about after? We had many plans, he was supposed to learn signing." (Id.). Hospital staff continued to tell Plaintiffs that no one was allowed on the floor, even in the recovery room. (Id. ¶ 29).
The medical team then started handling Espino without warning and without being briefed by Lourdes or Coria, as required by Espino's accommodation plan. (Id. ¶ 30). The anesthesiologist grabbed Espino's arm, which was "extremely excruciating" for Espino. (Id.). According to the complaint, this anesthesiologist "clearly had no understanding of [Espino's] medical conditions or what modified ASL signs she had developed in advance with Dr. Saska. Espino felt trapped and anxious that she would be at the mercy of the medical staff with no way to communicate effectively with anyone." (Id.). Espino typed and asked, "please don't press arm." (Id.). However, the anesthesiologist ignored Espino again and did not release his grip or the pressure on her arm. (Id.). Espino continued to plead with the anesthesiologist to be gentler, saying "That's painful please don't press." (Id.).
During this time, Lourdes and Coria tried to explain Espino's conditions to the medical team and urged them to honor the accommodation plan. (Id. ¶ 31). As the anesthesiologist was administering medication to Espino, he turned to Coria and asked: "She's never had any problems with anesthesia right?" (Id.). "Shocked that this medical team clearly had no background on Espino's medical history, Lourdes and Coria replied with a simultaneous 'YES. She has had a very long history of complications with anesthesia. That is why we established a specific plan beforehand.' " (Id.). Hearing this exchange, Espino went into a "full panic." (Id. ¶ 32). The medical team continued to grab Espino's arms and placed items on her legs and bed without warning, which caused her "extreme" pain. (Id.). Espino typed "Help" several times, but no one assisted or responded to her. (Id.). Espino asked the medical team to identify themselves by name so she could learn voices because she could not see them, but they ignored her requests. (Id.). Espino also attempted to use ASL to sign "slow," "stop," and "please," but no one understood. (Id.).
The sedative given to Espino did not have any effect. (Id. ¶ 33). Espino continued to be "terrified" and feel "helpless," as the medical team working around her and on her, pulled, tugged, and grabbed her arms, legs, and feet in ways that were "extremely painful" and without any way for her to communicate her pain. (Id.). Espino was in and out of consciousness throughout the procedure. (Id. ¶ 36). At the conclusion of the surgery, she was placed in a recovery room where staff allowed Coria to be there to interpret, but only after Coria and Lourdes insisted one of them be present in the recovery room, causing a large argument with hospital staff. The complaint states that Espino was traumatized by this experience. (Id.).
2. December 16-19, 2020: ER at Ronald Reagan UCLA Medical Center
On December 16, 2020, Lourdes and Coria took Espino to the emergency room ("ER") of Ronald Regan UCLA Medical Center because Espino was experiencing choking complications. (Id. ¶ 37). Upon entry to the ER, the nurse informed Lourdes and Coria that, due to COVID concerns, they would be allowed to stay in the room but would be permanently denied re-entry if they left the room for any reason, including if they tried to get food from the cafeteria. (Id.). Lourdes and Coria agreed to these terms and remained with Espino in the ER room. (Id.). After performing an X-ray and blood tests, ER doctors confirmed that Espino would need to be admitted into the hospital. (Id. ¶ 38). Hospital staff told Plaintiffs that they would get Espino the first bed available upstairs, but warned them that this could take days with COVID overflow. (Id.).
According to the Complaint, hospital staff "made it clear" to Lourdes and Coria that they were not welcome in the ER room. (Id. ¶ 39). Initially, Lourdes and Coria were not given chairs and faced several days without food, since they were warned that they could not leave to get food from the cafeteria. (Id.). Espino's doctors ultimately agreed that having Lourdes and Coria present with her was a medical necessity, and one doctor brought two small chairs for them to sit. (Id. ¶ 40). However, the complaint alleges that "starvation from lack of access to food soon became more serious, as Lourdes and [Coria] became physically weaker as time passed." (Id.). It took two days in the ER before a bed upstairs was ready for Espino. (Id. ¶ 41). Plaintiffs assumed that they would be immediately transferred together; instead, hospital staff told Plaintiffs that no "visitors" would be allowed upstairs with Espino. (Id.).
Espino was ultimately denied transfer out of the ER to an upstairs unit because hospital administrators refused her request to have Lourdes and Coria accompany her. (Id. ¶ 42). At the same time, Espino's treating doctors advised that it was not safe for her to return home because of her respiratory condition. (Id.). The next day, a unit director came to Espino's room and told Plaintiffs that the hospital would make a "special exception" and thus, allow Espino one "visitor." (Id. ¶ 43). Plaintiffs explained that a two-person system was necessary to allow them to take breaks, have adequate help to lift Espino safely when necessary, and respond to Espino's acute medical needs, which often require immediate attention and action that nurses could not cover with typical hospital staffing (e.g., choking episodes or sudden bladder urges triggered by Espino's bladder implant). (Id.).
The next morning, despite several days of doctors' assessments deeming Espino to need hospitalization, Plaintiffs were told that Espino was being discharged. (Id. ¶ 46). The hospital sent Espino home with a basic alternate spray method for her nebulizer medication and a new medication to assist with thinning out secretions and told Plaintiffs to follow up with Espino's primary doctor. (Id.). Espino continued to experience severe choking when she returned home and felt she was discharged prematurely because she insisted on her rights to reasonable accommodations for her disability and to ensure she could effectively communicate with hospital staff. (Id. ¶ 48).
3. July 20, 2021: Surgery at Ronald Reagan UCLA Medical Center
Because of the previously mentioned events, in the week before her July 20, 2021, surgery to exchange her chest catheter from the right side to her left, Espino "made her best efforts to coordinate well in advance with her treating providers and hospital medical teams to ensure she would be properly accommodated for future procedures." See (id. ¶¶ 49-50). She worked with a team of specialty doctors to coordinate her surgery in a way that would guarantee that her disabilities would be accommodated, that she would be able to communicate effectively with her medical team and hospital staff, and that they would listen and respond to Espino's communications regarding pain. (Id. ¶ 50). Plaintiffs also advised the medical team in advance that moving Espino's limbs in an abrupt manner would cause her severe pain and could injure her. (Id. ¶ 53). On the day of Espino's surgery, the attending anesthesiologist, Dr. Matthew Scott Vandiver, came to Espino's room to discuss Espino's surgery and accommodation plan. (Id. ¶ 51). Vandiver reassured Espino that he had spoken in advance with the team who would be in the OR to tell them about Espino's medical conditions and how to handle her to avoid pain and injury before and after her surgery. (Id.). Espino's accommodation plan also included closely monitoring her to keep her fully asleep until she would be taken to the post-anesthesia care unit ("PACU") after the surgery, where either Lourdes or Coria would be there to assist Espino when she woke up and to interpret her modified ASL, as she would be too impaired from anesthesia to use her keyboard and iPad to type. (Id. ¶ 53). The medical team followed the pre-op plan and completed Espino's surgery. (Id. ¶ 52).
However, when Espino woke up in the OR, she felt extreme pain and found that Vandiver's voice was no longer in the room. (Id. ¶ 53). Instead, there was a female voice on Espino's right side, who was moving Espino's limbs around in fast and vigorous motions, causing "excruciating" pain in every tug and lift of Espino's limbs. (Id.). Espino began panicking because she realized she had no way to communicate. (Id.). The female attendant also piled bunches of wires and tubing on Espino's chest, the area of her surgery. (Id. ¶ 55). Once Espino finally managed to type that she needed Lourdes for interpreting her ASL signs, the female attendant sternly replied, "No. You are going back up to your room. We don't bring family down here." (Id.). Espino managed to type: "too dizzy to type, please help, need mom or need interpreter." (Id.). The attendant again rejected Espino's request for an interpreter, and loudly stated, "No. We are taking you to your room when we are done here." (Id.). Espino tried explaining to the attendant that she was being moved in a way that was causing extreme pain, but the attendant ignored her requests for help. (Id.). Espino attempted to feel around her lap for a pain medication pump, which she had planned ahead with her palliative team to have placed on her lap as a fail-safe in case she was unable to communicate at any time to ensure she would have access to a small booster dose of pain medicine. (Id. ¶ 56). However, that accommodation was also not implemented, as there was no pain pump on Espino's lap, leaving her with no options to deal with pain other than to endure it. (Id.).
Espino began to feel fluid begin building up in her airways, causing her to choke. (Id. ¶ 57). Plaintiffs had explained this condition in advance to Vandiver and the medical team. (Id.). While Espino was choking, she managed to type, "HELP," and continued pressing the speak button on her keyboard repeatedly at maximum volume to try and get the attendant to notice that she was choking. (Id.). Lourdes was waiting in the post-op room, where Espino's vitals were being transmitted from the OR. (Id. ¶ 58). Noticing that Espino's heart rate was "soaring," Lourdes called for help to allow Lourdes to get down to the room to assist Espino. (Id.). Lourdes arrived outside the OR to see Espino choking. (Id.). Lourdes asked for a suction machine, which the female attendant handed to her. (Id.). Lourdes used the tubing to suction Espino's fluids while turning to the female attendant to ask her, "why did they not take her to the post-op PACU room as was planned?" (Id.). The female attendant replied again with, "No. She is going straight to her room." (Id.). Eventually, the female attendant gave Espino medication, but gave her anxiety medication instead of pain medication. (Id.).
The complaint alleges that Espino "was so traumatized by this experience that for a time after the surgery, she was unable to distinguish Lourdes' voice when Lourdes would try to attend to [Espino]." (Id. ¶ 59). Espino would panic and cry, thinking someone else was touching her and trying to move her. (Id.). To date, Espino experiences flashbacks and intense nightmares replaying the events of what happened to her in the OR that day. (Id. ¶ 61).
4. October 27, 2021: Surgery at Ronald Reagan UCLA Medical Center
On October 27, 2021, Espino was scheduled to have her feeding tube replaced. (Id. ¶ 62). According to the accommodation plan Espino and her medical team agreed upon in advance, Espino was supposed to be taken to a pre-op area to receive calming medication from anesthesia. (Id.). However, when the transport team arrived, they said they were taking Espino directly to the OR. (Id.). According to the complaint, "Plaintiffs were again forced to fight and advocate very hard for [Espino] to get hospital staff to stop and wait for the anesthesiologist, who ended up coming to [Espino's] bedside to administer the pre-surgical medications that she was supposed to receive in the pre-op area." (Id.). Plaintiffs thought they would be able to have a brief discussion with the medical team to explain Espino's history of complications with anesthesia, but hospital staff continued pushing her gurney to take her straight into the operating room. (Id. ¶ 63). The anesthesiologist began administering anesthesia before Plaintiffs were able to alert him of Espino's prior complications with anesthesia. (Id.).
The anesthesia Espino received did not work. (Id. ¶ 64). The medical team began moving her into position for surgery, but Lourdes and Coria pleaded with them to stop. (Id.). Espino continued attempting to type "I'M STILL AWAKE," "PAIN, PLEASE STOP" several times, which the anesthesiologist ignored. (Id.). She could feel and hear everything going on around her, and the anesthesiologist kept saying, "She's asleep already!" as Lourdes and Coria attempted to point out that Espino was still alert. (Id.). Espino was given further anesthesia until she finally slept; however, she continued to regain consciousness throughout the procedure. (Id.). When hospital staff returned Espino to her room, the complaint alleges that Espino "experienced a mental breakdown from having to endure the trauma of being denied her accommodation plan and having her pleas for help to address pain ignored again." (Id. ¶ 65).
5. June 30-July 13, 2022: ER Visit, Hospital Stay, and Surgery at Ronald Reagan UCLA Medical Center
Lourdes and Coria transported Espino to the ER of Ronald Reagan UCLA Medical Center on June 30, 2022, because of Espino's ongoing and acute health complications. (Id. ¶ 67). Upon Espino's admission to the ER, and then admission as an inpatient, Plaintiffs and the medical team discussed urological surgery to switch out Espino's interstim for a smaller device because the implant itself had become more dislodged, which caused pain and urination issues. (Id. ¶ 68). The interstim was also approaching the end of its battery life. (Id.). Plaintiffs and the medical team discussed coordinating with Espino's urologist for help with switching the interstim, but the hospital medical team was against this course of action. (Id.). The medical team claimed they would not be able to address Espino's pain after a surgery switching the interstim. (Id.). Espino "was frustrated that the doctors who recommended installation of the interstim to begin with were now disregarding her complaints that the device was painful." (Id.). Plaintiffs were also "extremely distressed" with the thought of what would happen when the battery for the interstim currently in Espino expired. (Id.). Ultimately, the hospital 's medical team decided to replace Espino's feeding tube and started the process of scheduling her procedure. (Id. ¶ 69).
On the morning of July 5, 2022, the attending team of doctors met with Plaintiffs and confirmed that the following accommodations were approved for Espino's surgery: (1) Lourdes and Coria would be allowed to accompany Espino on the transfer to the OR to assist Espino with communicating; (2) Espino's keyboard and iPad would be near her for her to use while she was awake; and (3) Lourdes would be allowed to remain with Espino before and after the surgery so that Espino would have someone to interpret her ASL if she was unable to type because of anesthesia. (Id. ¶ 70). The attending team also told Plaintiffs that an anesthesiologist would be coming that same morning to discuss and double check the accommodation plan. (Id.).
Shortly after this discussion with the attending team, an anesthesiologist came to see Espino in her room with Lourdes and Coria. (Id. ¶ 71). The anesthesiologist assured Plaintiffs that Espino's accessibility accommodations would be honored and that things would go smoothly. (Id.). The anesthesiologist began administering sedating medication to Espino in her room in advance of the procedure to allow Espino to be able to endure the trip downstairs to the OR. (Id.). However, Espino immediately noticed that the medication was not having the effect it had in previous times when administered. (Id.). She tried to communicate the problem to the anesthesiologist, but he said that he could not give Espino anything further. (Id.).
Before Espino could address her options with the anesthesiologist, the transport team arrived and started handling Espino and working around her. (Id. ¶ 72). Espino pleaded with them via her iPad, as did Lourdes and Coria, to slow down. (Id.). However, the transport team continued to move quickly, moving Espino's blankets, placing equipment on her and her bed, and moving her legs. (Id.). Despite her numerous pleas via her iPad to stop and slow down, Espino was transported to the OR, where the medical team began handling Espino. (Id. ¶ 73). Although the hospital had allowed Espino to have her keyboard and iPad with her to communicate, Espino felt that it was a useless accommodation because no one was listening to her. (Id.). Hospital staff also ignored Lourdes' attempts to intervene and assist Espino before the surgery. (Id.).
As the anesthesia wore off and Espino became more lucid, she felt increased pain in her left nostril where her feeding tube was originally. (Id. ¶ 75). After further investigation, Espino discovered that the medical team placed her feeding tube back in the same nostril as before, instead of switching the tube to the other side to allow her left nostril to heal from the pressure sores caused by the tube. (Id.). Espino "continues to suffer from pressure sores in this nostril." (Id. ¶ 75). To date, Espino also "continues to deal with the aftermath of the multiple traumas she experienced at UCLA hospitals because they failed to make reasonable accommodations for her disabilities and refused her requests for assistance so that she could communicate effectively with her medical team and hospital staff." (Id. ¶ 76).
B. Procedural History
On August 18, 2022, Plaintiffs filed the instant Complaint. The Complaint asserts claims for: (1) violation of the Americans with Disabilities Act ("ADA"), Title II, 42 U.S.C. § 12201, et seq. ("Title II"), (Compl. ¶¶ 86-106); (2) violation of Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 ("Section 504"), (Compl. ¶¶ 107-21); (3) violation of the Patient Protection and Affordable Care Act, 42 U.S.C. § 18116 ("ACA"), (Compl. ¶¶ 122-35); (4) violation of California Government Code Section 11135 ("Section 11135"), (id. ¶¶ 136-40); and (5) a violation of California's Unruh Civil Rights Act, Cal. Civ. Code § 51, et seq. ("Unruh"), (Compl. ¶¶ 141-52). However, Plaintiffs have since withdrawn their state law claims. (ECF No. 28 at 7 ("Opp.")).
For Plaintiffs' Title II claim: the Complaint alleges that Espino is "an individual with a disability as defined under the ADA." (Compl. ¶ 89). The Complaint also alleges that Defendant and DOES 1-5 are each public entities "as defined under Title II of the ADA." (Id. ¶¶ 90-91). The Complaint further alleges that Defendant and DOES 1-5 violated Title II when they "discriminated against [Espino] on the basis of her disability by excluding her from participation in and denying her the benefits of the services of UCLA Health hospitals, and by subjecting her to discrimination in violation of 42 U.S.C. § 12132," (id. ¶ 98), along with "refusing to provide [Espino] with auxiliary aids and services necessary to ensure effective communication and by failing to ensure effective communication through the provision of a qualified in-person interpreter." (Id. ¶ 99). Additionally, as part of the first claim under Title II of the ADA, the Complaint alleges that Lourdes and Coria have viable claims against Defendant and DOES 1-5 under an associational discrimination theory of liability. See (id. ¶¶ 100). For their Title II claim, Plaintiffs seek injunctive relief, declaratory relief, compensatory damages, and an award of attorneys' fees, costs, and disbursement pursuant to 42 U.S.C. § 12133 and/or common law. (Id. ¶¶ 105-06).
For Plaintiffs' Section 504 cause of action, the Complaint alleges that Espino is a "qualified individual with a disability as defined in the Rehabilitation Act," (id. ¶ 111), and that Defendant (specifically, UCLA Health) and DOES 1-5 receive federal financial assistance, including Medicaid reimbursements, and thus are "programs or activities receiving federal financial assistance pursuant to 29 U.S.C. § 794(b)." (Id. ¶ 110). For this reason, the Complaint alleges that Defendant and DOES 1-5 are "required to reasonably accommodate persons with disabilities in their facilities, programs and activities." (Id.). The Complaint also alleges that Defendant and DOES 1-5 did not provide reasonable accommodations in compliance with Section 504 because they denied Espino "meaningful access to the services, programs, and benefits the [Defendant] and [DOES] 1-5 offer to other individuals, . . . refuse[d] to provide [Espino] with auxiliary aids and services necessary to ensure effective communication, in violation of [Section 504]," and "fail[ed] to ensure effective communication for [Espino] through the specific provision of a qualified in-person interpreter." (Id. ¶¶ 115-16). As part of Plaintiffs' second cause of action, the Complaint alleges that Lourdes and Coria have viable associational discrimination claims under Section 504. See (id. ¶¶ 114). For their Section 504 cause of action, Plaintiffs seek compensatory damages, injunctive relief, declaratory relief, and an award of attorney's fees, costs, and disbursements pursuant to Section 504 and/or the common law. (Id. ¶¶ 119-21). The same allegations underlying Plaintiffs' Section 504 cause of action also serve as the basis for their third cause of action under the ACA. See (id. ¶¶ 122-135).
On November 7, 2022, Defendant filed the instant Motion. (Mot.). Defendant argues that this Court lacks subject matter jurisdiction over all of Plaintiffs' federal causes of action because these claims are barred by state sovereign immunity. See (id. at 12-14). Defendant also argues that Plaintiffs' claims are substantively defective because Plaintiffs' requested accommodations were unreasonable, given the COVID-19 pandemic. See (id. at 17-20). In support of this argument, Defendant asserts:
The time frame for [ ] Espino's medical care as alleged in the complaint was during the height of the COVID-19 pandemic. Hospitals and other facilities were under legal compulsion, via emergency orders issued by the Governor and the California State Public Health Officer, to limit access to facilities, and to impose vaccine requirements, under draconian penalties . . . . The fact that loved ones were not allowed into hospitals, nursing homes or other facilities, even to say goodbye to dying patient relatives[ ] is common knowledge . . . .(Id. at 18-19). Additionally, Defendant argues that Lourdes' and Coria's associational discrimination claims should be dismissed because "[n]o separate wrong . . . was committed against" them. (Id. at 16-17).
. . .
[Further], [t]he fact that [Espino] received her anesthesia in the surgical suite . . . or that her computer laptop as laid aside by a nurse during prep or procedure, is not unusual, nothing unexpected and nothing discriminatory; other patients should expect the same . . . .
On February 1, 2023, Plaintiffs filed an opposition to Defendant's Motion. (Opp.). For their Title II claim, Plaintiffs seek leave to amend the Complaint to add the Chiefs of Staff of Ronald Regan UCLA Medical Center and UCLA Santa Monica Center ("Chiefs of Staff"). (Id. at 10). For their Section 504 and ACA claims, Plaintiffs assert that state sovereign immunity is inapplicable because Defendant accepted federal funds. See (id. at 10-12). For Lourdes' and Coria's associational discrimination claims, Plaintiffs argue that "[b]ecause Lourdes and [Coria] suffered separate and direct injuries, independent of the discrimination [Espino] experienced . . . their associational discrimination and retaliation claims under . . . Section 504 . . . should not be dismissed." (Id. at 13). Finally, Plaintiffs assert that they have "alleged more than adequate facts to support cognizable legal claims." (Id. at 17).
Defendant filed a reply to the opposition on February 8, 2023. (ECF No. 29 ("Reply")). Defendant continues to assert that dismissal under Rule 12(b)(6) is appropriate because it "cannot be required to break state law in order to give Plaintiffs the accommodation of their choice." See (id. at 2-5). Defendant also essentially repeats the arguments in support of dismissing Lourdes' and Coria's associational discrimination claims. See (id. at 6-7). Further, Defendant asserts that Plaintiffs' request for leave to amend should be denied. (Id. at 7-8).
II. LEGAL STANDARD
A. Federal Rule of Civil Procedure 12(b)(1)
"Federal district courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute." Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994) (citations omitted). As a general rule, there are two ways to invoke a district court's subject matter jurisdiction: (1) federal question jurisdiction; and (2) diversity jurisdiction. With respect to federal question jurisdiction, "[t]he district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." 42 U.S.C. § 1331. A case "arises under" federal law either where federal law creates the cause of action or "where the vindication of a right under state law necessarily turn[s] on some construction of federal law." Republican Party of Guam v. Gutierrez, 277 F.3d 1086, 1088-89 (9th Cir. 2002) (quoting Franchise Tax Bd. v. Construction Laborers Vacation Tr., 463 U.S. 1, 8-9, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983)). District courts have diversity jurisdiction where the plaintiff and all defendants are residents of different states and the "matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs . . . ." 42 U.S.C. § 1332; Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 552, 125 S.Ct. 2611, 162 L.Ed.2d 502 (2005).
Federal Rule of Civil Procedure 12(b)(1) governs motions to dismiss for lack of subject matter jurisdiction. When a defendant moves to dismiss a complaint for lack of subject matter jurisdiction pursuant to Rule 12(b)(1), the plaintiff bears the burden of proving that the court has jurisdiction to decide the claim. Thornhill Publ'n Co. v. Gen. Tel. & Elecs. Corp., 594 F.2d 730, 733 (9th Cir. 1979). Jurisdictional challenges under Rule 12(b)(1) are either facial or factual. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004) (citing White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000)). "In a facial attack, the challenger asserts that the allegations contained in a complaint are insufficient on their face to invoke federal jurisdiction." Id. "By contrast, in a factual attack, the challenger disputes the truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction." Id.
B. Federal Rule of Civil Procedure 12(b)(6)
Rule 8(a)(2) of the Federal Rules of Civil Procedure requires a complaint to include "a short and plain statement of the claim showing that the pleader is entitled to relief." A complaint that fails to meet this standard may be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6). Dismissal is proper "when the complaint either (1) lacks a cognizable legal theory or (2) fails to allege sufficient facts to support a cognizable legal theory." Somers v. Apple, Inc., 729 F.3d 953, 959 (9th Cir. 2013) (citation omitted). To survive a 12(b)(6) motion, the plaintiff must allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A claim is facially plausible when the plaintiff pleads facts that "allow[ ] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citation omitted). There must be "more than a sheer possibility that a defendant has acted unlawfully." Id. While a complaint does not need detailed factual allegations, "a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (internal citations and quotations omitted); Ashcroft, 556 U.S. at 678, 129 S.Ct. 1937 ("The tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions."). A plaintiff must allege facts sufficient to "raise a right to relief above the speculative level." Twombly, 550 U.S. at 555, 127 S.Ct. 1955. In deciding whether the plaintiff has stated a claim upon which relief can be granted, the court accepts the plaintiff's allegations as true and draws all reasonable inferences in favor of the plaintiff. In re Tracht Gut, LLC, 836 F.3d 1146, 1150 (9th Cir. 2016) (citation omitted).
C. Federal Rule of Civil Procedure 15(a)
Federal Rule of Civil Procedure 15(a) governs requests for leave to amend before trial and provides that "the court should freely give leave when justice so requires." Our courts have long held that leave to amend should be granted with "extreme liberality" in order "to facilitate [a] decision on the merits, rather than on the pleadings or technicalities." United States v. Webb, 655 F.2d 977, 979 (9th Cir. 1981) (citations omitted). However, leave to amend may be denied where the opposing party makes a showing of "undue delay, bad faith or dilatory motive, futility of amendment, or prejudice." E.g., Velazquez v. GMAC Mortg. Corp., Case No. CV 08-05444 DDP (PLAx), 2009 WL 2959838, at *2 (C.D. Cal. Sept. 10, 2009) (citations omitted). "Futility of amendment can, by itself, justify the denial of a motion for leave to amend." Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995). "For an amendment to be futile, it must appear on its face that it is not actionable." Coble v. Derosia, Case No. 1:10-cv-00259 AWK JLT, 2011 WL 444961, at *4 (E.D. Cal. Feb. 8, 2011).
III. DISCUSSION
A. Plaintiffs' Title II of the ADA Claim and State Sovereign Immunity
The Complaint asserts a claim against Defendant and DOES 1-5 under Title II of the ADA. See (Compl. ¶¶ 86-106). Defendant moved to dismiss this claim, arguing that Defendant, as an instrumentality of the state, is entitled to sovereign immunity under the Eleventh Amendment to the United States Constitution. See (Mot. at 12). In their opposition to the Motion, Plaintiffs state that "there is a question regarding whether Congress abrogated the [Defendant's] Eleventh Amendment immunity" and thus, "to avoid that dispute, Plaintiffs request leave to amend the Complaint to add the Chiefs of Staff, in their official capacities, . . . because case law is clear that these individuals do not enjoy Eleventh Amendment immunity." (Opp. at 10). During the hearing on the Motion, Plaintiffs clarified that they intended to completely remove Defendant as a named defendant from their Title II claim, and replace Defendant with the Chiefs of Staff pursuant to the doctrine of Ex parte Young. See (Opp. at 10, 12); Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). In response, Defendant argued during the hearing that granting leave to amend would be futile because Plaintiffs have not shown that the Chiefs of Staff are "state officials" for purposes of the doctrine's applicability. While the Court agrees that Plaintiffs have not currently shown a sufficient basis to add the Chiefs of Staff under Ex parte Young, as discussed below, the Court disagrees that granting leave to amend would be futile.
The issue of whether Defendant enjoys state sovereign immunity under Title II is therefore moot.
In its reply, Defendant also argues that Plaintiffs "implicitly admit" that state sovereign immunity applies. See (Reply at 8-9). The Court does not read Plaintiffs' opposition as an admission on this point.
1. Title II of the ADA
The ADA "forbids discrimination against persons with disabilities in three major areas of public life: employment, which is covered by Title I of the statute; public services, programs, and activities, which are the subject of Title II; and public accommodations, which are covered by Title III." Tennessee v. Lane, 541 U.S. 509, 516-17, 124 S.Ct. 1978, 158 L.Ed.2d 820 (2004). Title II specifically provides that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C. § 12132. Title II defines "qualified individual with a disability" to mean:
an individual with a disability who, with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.42 U.S.C. § 12131(2). The ADA defines " 'public entity' " to include "any department, agency, . . . or other instrumentality of a State[.]" 42 U.S.C. § 12131(1)(B).
Defendants do not dispute that Espino is a "qualified individual with a disability." Rather, Defendants argue that the Chiefs of Staff cannot be sued in their official capacity because they are protected by state sovereign immunity, as recognized by the Eleventh Amendment to the United States Constitution. Plaintiffs argue that they can overcome state sovereign immunity through the doctrine of Ex parte Young.
2. State Sovereign Immunity and the Ex parte Young Doctrine
The Eleventh Amendment to the United States Constitution provides that: "[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." U.S. Const. amend XI. Thus, "[t]he Eleventh Amendment bars suits which seek either damages or injunctive relief against a state, an 'arm of the state,' its instrumentalities, or its agencies." Franceschi v. Schwartz, 57 F.3d 828, 831 (9th Cir. 1995) (citing Durning v. Citibank, N.A., 950 F.2d 1419, 1422-23 (9th Cir. 1991)). Because Defendant is considered an "arm of the state," it is protected by state sovereign immunity. Jackson v. Hayakawa, 682 F.2d 1344, 1351 (9th Cir. 1982) ("[T]he University of Californian and the Board of Regents are considered to be instrumentalities of the state for purposes of the Eleventh Amendment." (citations omitted)). Moreover, Defendant's employees may also enjoy state sovereign immunity while acting in their official capacities. See Will v. Mich. Dep't of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989) ("[A] suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official's office. As such, it is no different from a suit against the State itself." (citations omitted)); see also Comm. v. Or. State Univ., Case No. 6:18-cv-00328-AA, 2018 WL 4623159, at *3 (D. Or. Sept. 26, 2018) (finding various employees of Oregon State University protected by state sovereign immunity for acting in their official capacities).
Nevertheless, there are exceptions to state sovereign immunity. The doctrine of Ex parte Young holds that a suit may be brought for "prospective declaratory or injunctive relief against state officers in their official capacities for alleged violations of federal law." Coal. to Defend Affirmative Action v. Brown, 674 F.3d 1128, 1134 (9th Cir. 2012) (citing Ex Parte Young, 209 U.S. at 155-55, 28 S.Ct. 441). A suit is cognizable under Ex Parte Young where the underlying authorization upon which the named official acts is asserted to be illegal, the alleged violation of federal law is ongoing, and the violation would be ended by affording the relief sought. See Papasan v. Allain, 478 U.S. 265, 277-78, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986). To qualify as a "state official" within the meaning of Ex parte Young, the official "must have some connection with the enforcement of the act." Ass'n des Eleveurs de Canards et d'Oies du Quebec v. Harris, 729 F.3d 937, 943 (9th Cir. 2013) (quoting Brown, 674 F.3d at 1134 (internal quotations omitted)). "That connection 'must be fairly direct; a generalized duty to enforce state law or general supervisory power over the persons responsible for enforcing the challenged provision will not subject an official to suit.' " Id. (quoting Brown, 674 F.3d at 1134).
3. Plaintiffs have not Sufficiently Shown that Ex parte Young is Applicable to their Title II Claim
Several district courts in the Ninth Circuit have found that a state official may not be sued in his or her individual capacity under Title II. See, e.g., Chester v. Univ. of Wash., CASE NO. C11 15-5937, 2012 WL 3599351, at *3 (W.D. Wash. Aug. 21, 2012) (finding public university employees could not be held individually liable under Title II); Thomas v. Nakatani, 128 F. Supp. 2d 684 (D. Haw. 2000) (no individual capacity suit under Title II of the ADA); A.B. ex rel. B.S. v. Adams-Arapahoe 28J School Dist., 831 F. Supp. 2d 1226 (D. Colo. 2011) (no individual liability under Title II); Becker v. State of Or., ODOC, 170 F. Supp. 2d 1061, 1066 (D. Or. 2001). However, the Ninth Circuit has held that a state official may be sued in his or her official capacity under Title II pursuant to the doctrine of Ex parte Young. Miranda B. v. Kitzhaber, 328 F.3d 1181, 1187-88 (9th Cir. 2003). Thus, to state a cognizable Title II claim against the Chiefs of Staff, Plaintiffs must allege sufficient facts to show that the Chiefs of Staff have some "fairly direct" connection to the enforcement of Title II when acting in their official capacities as employees of Defendant.
Notably, the Ninth Circuit has stated, in multiple unpublished opinions, that no individual liability exists under Title II. See, e.g., Sims v. De La Torre, No. 21-15778, 2022 WL 4234961, at *1 (9th Cir. Sept. 14, 2022) (citing Vinson v. Thomas, 288 F.3d 1145, 1156 (9th Cir. 2002)); Burgess v. Carmichael, 37 Fed. Appx. 288, 292 (9th Cir. 2001) (affirming district court's dismissal of plaintiff's claim against individual defendants reasoning plaintiffs may sue only a "public entity" for such violations, not government officials in their individual capacities (citing Vinson v. Thomas, 288 F.3d 1145, 1156 (9th Cir. 2002)); Young v. Lehman, 171 Fed. Appx. 625 (9th Cir. 2006) (claims against defendants under Title II of the ADA in their individual capacities are foreclosed (citing Vinson, 288 F.3d at 1156)).
Here, neither Plaintiffs' opposition nor their proffer during the hearing on the Motion made the requisite showing. In particular, Plaintiffs have not offered any explanation in their opposition or during the hearing on the Motion of how the Chiefs of Staff have any connection to the enforcement of Title II. Nor have Plaintiffs cited any authority on this point. As such, Plaintiffs' currently proposed amendment does not save the allegations of their first claim under Title II. The Court therefore dismisses Plaintiffs' Title II claim in its entirety.
Nevertheless, because it is presently unclear whether amendment would be futile, the Court dismisses Plaintiffs' Title II claim without prejudice and grants leave to amend to give Plaintiffs another opportunity to assert a Title II claim against the Chiefs of Staff that is sufficient under Ex parte Young. See Zixiang Li v. Kerry, 710 F.3d 995, 999 (9th Cir. 2013) ("[A] district court should grant the plaintiff leave to amend if the complaint can possibly be cured by additional factual allegation[.]" (citation omitted)).
B. Plaintiffs' Section 504 Claim and State Sovereign Immunity
Next, Defendant argues that Plaintiffs' Section 504 cause of action is barred by state sovereign immunity. (Mot. at 13-14). The Court disagrees.
As previously discussed, there are exceptions to state sovereign immunity. One such exception is waiver; a state may waive state sovereign immunity. College Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 670, 119 S.Ct. 2219, 144 L.Ed.2d 605 (1999) (citation omitted). It is well-established that a public entity waives sovereign immunity against Section 504 claims if that entity accepts federal funds. Miranda B., 328 F.3d at 1185-86 (citing Clark v. Cal. Dep't of Corr., 123 F.3d 1267, 1271 (9th Cir. 1997)); Lovell v. Chandler, 303 F.3d 1039, 1050-52 (9th Cir. 2002) ("The State also argues that its acceptance of federal RA funds did not constitute a valid waiver of its Eleventh Amendment immunity as to claims under § 504 . . . . But our decisions in Douglas v. California Department of Youth Authority, 271 F.3d 812 (9th Cir. 2001), forecloses that argument."); Douglas v. Cal. Dep't of Youth Authority, 271 F.3d 812, 820 (9th Cir. 2001) ("[W]e hold that by accepting federal Rehabilitation Act funds, California has waived its sovereign immunity under the Rehabilitation Act."). On this point, Plaintiffs' Complaint alleges that Defendant and DOES 1-5 "received federal financial assistance, including Medicaid reimbursements or other funds, and were therefore programs or activities receiving federal financial assistance pursuant to [Section 504]." (Compl. ¶ 110).
At the hearing on the Motion, Defendant argued - for the first time - that Plaintiffs' Section 504 claim is nonetheless barred by state sovereign immunity because Plaintiffs' claim does not involve a "fundamental right" protected by the United States Constitution. For this proposition, Defendant cited United States v. Georgia, 546 U.S. 151, 126 S.Ct. 877, 163 L.Ed.2d 650 (2006). However, United States v. Georgia is inapposite because that case did not deal with any claims under Section 504; instead, the case dealt with claims under Title II of the ADA. See Georgia, 546 U.S. at 153, 126 S.Ct. 877. Moreover, the Supreme Court in United States v. Georgia did not hold that state sovereign immunity is only circumventable by violations of "fundamental rights." To the contrary, the Supreme Court narrowly held that, "insofar as Title II creates a private cause of action for damages against the States for conduct that actually violates the Fourteenth Amendment, Title II validly abrogates state sovereign immunity." Id. at 159, 126 S.Ct. 877 (emphasis in original). Thus, the Court concludes that Defendant is not protected by state sovereign immunity on Plaintiffs' Section 504 cause of action.
C. Plaintiff Espino's ACA Claim and State Sovereign Immunity
Defendant also argues that Espino's cause of action under the ACA is barred by state sovereign immunity. (Mot. at 13-14). The Court disagrees.
Section 1557 of the ACA states: "an individual shall not, on the ground prohibited under . . . [Section 504], be excluded from participation in, be denied the benefits of, or be subjected to discrimination under, any health program or activity, any part of which is receiving Federal financial assistance." 42 U.S.C. § 18116(a). Although the Ninth Circuit has not specifically addressed this issue, multiple Circuit Courts conclude that this language provides a private cause of action for antidiscrimination. See, e.g., Francois v. Our Lady of the Lake Hosp., Inc., 8 F.4th 370, 378 (5th Cir. 2021) ("Section 1557 of the ACA provides [a] private cause[ ] of action" (citation omitted)); Doe v. BlueCross BlueShield of Tenn., Inc., 926 F.3d 235, 239 (6th Cir. 2019) ("By referring to four statutes, Congress incorporated the legal standards that define discrimination under each one."). Moreover, the Civil Rights Remedies Equalization Act ("CRREA") states, in relevant part:
A State shall not be immune under the Eleventh Amendment of the Constitution of the United States from suit in Federal court for a violation of section 504 of the Rehabilitation Act of 1973, title IX of the Education Amendments of 1972, the Age Discrimination Act of 1975, title VI of the Civil Rights Act of 1964, or the provisions of any other Federal statute prohibiting discrimination by recipients of Federal financial assistance.42 U.S.C. § 2000d-7(a)(1) (emphasis added).
Because Section 1557 of the ACA prohibits discrimination against an entity receiving federal assistance, multiple courts, including the Fourth Circuit and at least one district court within this Circuit, have found that a public entity waives state sovereign immunity from ACA antidiscrimination liability upon acceptance of federal funding pursuant to the CRREA's terms. See Kadel v. N.C. State Health Plan Teachers & State Emples., 12 F.4th 422, 439 (4th Cir. 2021) ("Section 1557 of the ACA unequivocally conditions the receipt of federal financial assistance upon a state's waiver of sovereign immunity against suits for money damages. [Defendant], being a recipient of federal funds, is not immune from suit here."); Concepcion v. Cal. Dep't of Corr. & Rehab., Case No. 1:18-cv-01743-NONE-JLT (PC), 2021 WL 1516401, at *11 (E.D. Cal. Apr. 16, 2021) (finding defendants waived their immunity from suit for violations of ACA's nondiscrimination provision by accepting federal funds), adopted in its entirety by 2021 WL 3488120 (E.D. Cal. Aug. 9, 2021); see also Boyden v. Conlin, 341 F. Supp. 3d 979, 998-99 (W.D. Wis. 2018) ("State's acceptance of federal funds acts as a waiver of immunity" from suit for violations of section 1557 of the ACA).
In its reply, Defendant fails to address this argument. For all the foregoing reasons, the Court finds that Plaintiffs' ACA claims are not barred by state sovereign immunity because Defendant waived immunity through its acceptance of federal funding.
D. Plaintiffs Lourdes' and Coria's Associational Discrimination Claims under Title II of the ADA and Section 504
As part of Plaintiffs' claims under Title II of the ADA and Section 504, the Complaint alleges on behalf of Plaintiffs Lourdes and Coria associational discrimination claims against Defendant and DOES 1-5. See (Compl. ¶¶ 100, 103, 114). Defendant argues that Plaintiffs Lourdes' and Coria's associational discrimination claims should be dismissed for failing to sufficiently allege separate injuries. See (Mot. at 16-17). The Court agrees.
Title I and III of the ADA expressly prohibit association discrimination. Specifically, Title I prohibits "excluding or otherwise denying equal jobs or benefits to a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a relationship or association. 42 U.S.C. § 12112(b)(4). Title III, on the other hand, states:
It shall be discriminatory to exclude or otherwise deny equal goods, services, facilities, privileges, advantages, accommodations, or other opportunities to an individual or entity because of the known disability of an individual with whom the individual or entity is known to have a relationship or association.42 U.S.C. § 12182(b)(1)(E). Neither Title II nor Section 504 contains an express prohibition against associational discrimination. Nonetheless, district courts in the Ninth Circuit, along with other Circuit courts, have held that Title II and Section 504 also allow non-disabled individuals to bring associational discrimination claims. Nevarez v. Forty Niners Football Co., LLC, No. 16-CV-07-13-LHK, 2017 WL 3288634, at *9 (N.D. Cal. Aug. 1, 2017); Daubert v. City of Lindsay, 37 F. Supp. 3d 1168, 1174 (E.D. Cal. 2014); A Helping Hand, LLC v. Baltimore Cnty., MD, 515 F.3d 356, 364 (4th Cir. 2008)); Glass v. Hillsboro School Dist. 1J, 142 F. Supp. 2d 1286, 1288 (D. Or. 2001) ("The parties agree that associational claims are available under both the ADA and § 504." (citations omitted)); Morran v. Nev. Sys. of Higher Educ., 482 F. Supp. 2d 1202 (D. Nev. 2007) ("To the extent that [Section 504] allows claims of associational discrimination . . . such a claim requires a showing that the adverse actions were solely caused by an association with a disabled person." (citation omitted)); McCullum v. Orlando Reg'l Healthcare Sys., Inc., 768 F.3d 1135, 1142 (11th Cir. 2014) ("It is widely accepted that under both the [Rehabilitation Act] and the ADA, non-disabled individuals have standing to bring claims when they are injured because of their association with a disabled person." (citations omitted)); Popovich v. Cuyahoga Cnty. Court of Common Pleas, 150 Fed. Appx. 424, 427-28 (6th Cir. 2005) (unpublished) ("[A]ssocitional discrimination claims are viable under [Section 504], just as they are under [Title II of] the ADA." (citations omitted)).
A plaintiff seeking to raise a claim for associational discrimination under Title II and Section 504 must allege a specific, direct, and separate injury resulting from their association with a disabled individual. See Glass, 142 F. Supp. 2d at 1288 ("The parties also appear to agree that to state a valid claim for associational discrimination under either [Title II or Section 504], a plaintiff must allege some 'specific, direct, and separate injury' as a result of association with a disabled individual."); Navarez, 2017 WL 3288634, at *9 (finding satisfaction of Title III associational discrimination claim to also satisfy Title II associational discrimination claim). On this point, the Complaint alleges that, from December 16, 2020, to December 19, 2020, Lourdes and Coria were forced to stay in the Ronald Regan UCLA Medical Center's ER room for "several days" without food and chairs, as they waited for Espino to be given an open bed in the facility. See (Compl. ¶¶ 37, 39-40). However, the Complaint provides contradictory allegations concerning the motive behind Defendant's treatment of Lourdes and Coria. On the one hand, the Complaint alleges that Lourdes' and Coria's treatment was the result of the ongoing COVID-19 pandemic. See (id. ¶ 37 ("Upon entry to the ER, the nurse immediately informed Lourdes and [Coria] that, due to COVID concerns, they would be allowed to stay in the [ER] but would be permanently denied re-entry if they left the room for any reason . . . .")). On the other hand, the Complaint alleges that this same treatment was the result of Defendant's retaliation "against Plaintiffs for advocating for [Espino's] rights to reasonable accommodations and effective communications . . . ." (Id. ¶ 82).
"Contradictory allegations such as these are inherently implausible, and fail to comply with Rule 8, Twombly, and Iqbal." Hernandez v. Select Portfolio Servicing, Inc., CASE NO. CV 15-01896 MMM (AJWx), 2015 WL 3914741, at *10 (C.D. Cal. June 25, 2015) (citations omitted); Rieber v. OneWest Bank FSB, No. 13-CV-2523 W JLB, 2014 WL 1796706, *3 (S.D. Cal. May 6, 2014) ("Plaintiffs' Complaint pleads contradictory facts that fail to provide fair notice to Defendants regarding the basis of the [ ] claim[, and] . . . keeps Plaintiffs' [ ] claim from meeting Rule 8's requirement of 'a short and plain statement of the claim showing that the pleader is entitled to relief' rising above a speculative level." (citations omitted)); Zamanyan v. Northland Grp., Inc., No. CV 12-01212, 2012 WL 2756644, *1 (C.D. Cal. July 9, 2012) ("Zamanyan's Complaint fails against all defendants because the contradictory nature of his factual allegations forecloses recovery." (citations omitted)); see also Moenig v. Bank of Am., N.A., No. 14-CV-01399 KJM, 2015 WL 2185245, *4 (E.D. Cal. May 8, 2015) ("These contradictory factual allegations do not meet Rule 8's requirement of a 'short and plain statement.' " (citations omitted)). For this reason, Plaintiffs' causes of action under Title II of the ADA and Section 504, insofar as they attempt to assert associational discrimination claims, are dismissed for failure to state a claim.
Nonetheless, because it may be possible for Plaintiffs to cure the defects in their associational discrimination claims under Title II of the ADA, as it may relate to the Chiefs of Staff, and Section 504, the Court dismisses the Title II and Section 504 claims, insofar as they assert on behalf of Plaintiffs Lourdes and Caria associational discrimination claims, without prejudice. See Sonoma Cty. Ass'n of Retired Emps. v. Sonoma Cty., 708 F.3d 1109, 1118 (9th Cir. 2013) ("As a general rule, dismissal without leave to amend is improper unless it is clear, upon de novo review, that the complaint could not be saved by any amendment." (brackets, citations, and internal quotations omitted)).
E. Plaintiff Espino's Section 504 and ACA Claims
Defendant argues that Plaintiffs' claims are substantively defective because they do not demonstrate whether Defendant ever failed to reasonably accommodate Plaintiff Espino's various disabilities. See (Mot. at 17-20); (Reply at 2-5). For reasons already discussed, the Court has dismissed Plaintiffs' Title II claim, along with Plaintiffs Lourdes' and Coria's associational discrimination claims under Title II and Section 504. Thus, for purposes of this final argument, the Court only discusses Plaintiffs' Section 504 and ACA claims as they relate to Plaintiff Espino.
1. Section 504
"Section 504 . . . prohibits organizations that receive federal funds, including health care providers, from discriminating against individuals with disabilities." Bax v. Drs. Med. Ctr. of Modesto, Inc., 52 F.4th 858, 866 (9th Cir. 2022) (quoting Ervine v. Desert View Reg'l Med. Ctr. Holdings, LLC, 753 F.3d 862, 868 (9th Cir. 2014)); see also 29 U.S.C. § 794. "To prevail on a Section 504 claim, a plaintiff must establish that '(1) [s]he is an individual with a disability; (2) [s]he is otherwise qualified to receive [a certain] benefit; (3) [s]he was denied the benefits of [a certain] program solely by reason of [her] disability; and (4) the program receives federal financial assistance.' " Bax, 52 F.4th at 866 (quoting Updike v. Multnomah Cnty., 870 F.3d 939, 949 (9th Cir. 2017)). "Where, as here, [a plaintiff] seek[s] compensatory damages under Section 504, they 'must clear an additional hurdle:' proving a 'mens rea of intentional discrimination . . . which may be met by showing deliberate indifference.' " Id. (quoting Csutoras v. Paradise High Sch., 12 F.4th 960, 969 (9th Cir. 2021)).
"Compliance with Section 504's antidiscrimination mandate 'include[s] an affirmative obligation for [recipients of federal funds] to make benefits, services, and programs accessible to people with disabilities.' " Id. (quoting Updike, 870 F.3d at 949). "The Department of Health and Human Services' (HHS) implementing regulations further define this accessibility obligation as, among other things, a general mandate to provide a qualified person with a disability (i) 'the opportunity to participate in or benefit from the aid, benefit, or service;' (ii) 'an opportunity to participate in or benefit from the aid, benefit, or service that is . . . equal to that afforded others;' and (iii) 'an aid, benefit, or service that is . . . as effective as that provided to others.' " Id. (quoting 45 C.F.R. § 84.4(b)(1)). "The regulations further clarify that to be 'equally effective,' the 'aids, benefits, and services' need not 'produce the identical result or level of achievement,' but rather must ensure that a person with disabilities has an 'equal opportunity to obtain the same result, to gain the same benefit, or to reach the same level of achievement, in the most integrated setting appropriate to the person's needs.' " Id. (quoting 45 C.F.R. § 84.4(b)(2)). "Accordingly, to ensure accessibility for persons with a hearing disability, the relevant regulations require funds-recipients to 'provide appropriate auxiliary aids . . . where necessary to afford such persons an equal opportunity to benefit from the service in question.' " Id. (quoting 45 C.F.R. § 84.52(d)(1)). "Such 'auxiliary aids may include . . . interpreters, and other aids for persons with impaired hearing . . . .' " Id. (quoting 45 C.F.R. § 84.52(d)(3)).
"Assessing whether an entity 'provided appropriate auxiliary aids where necessary' to afford effective communication 'is a fact-intensive exercise.' " Id. at 867 (quoting Updike, 870 F.3d at 958). "The trier of fact must 'weigh [several] factors,' including 'the method of communication used by the individual; the nature, length, and complexity of the communication involved; and the context in which the communication is taking place.' " Id. (quoting Updike, 870 F.3d at 950). "The requirement that entities provide effective communication therefore 'does not mean that deaf patients are entitled to an on-site interpreter every time they ask for it.' " Id. (quoting Silva, 856 F.3d at 835). "Rather, the test is whether an individual has received an auxiliary aid sufficient to prevent any 'real hindrance' in her ability to exchange information." Id. (quoting Silva, 856 F.3d at 835).
The Ninth Circuit has emphasized that "covered entities 'should consult with individuals with disabilities whenever possible to determine what type of auxiliary aid is needed to ensure effective communication.' " Id. (quoting Tauscher v. Phx. Bd. of Realtors, Inc., 931 F.3d 959, 963 (9th Cir. 2019)); see also 28 C.F.R. § 36.303(c)(1)(ii)). "The ADA regulations applicable to public accommodations, however, make clear that 'the ultimate decision as to what measures to take rests with the public accommodation, provided that the method chosen results in effective communication.' " Bax, 52 F.4th at 867 (quoting Tauscher, 931 F.3d at 963); see also 28 C.F.R. § 36.303(c)(1)(ii)).
The Complaint alleges that Plaintiff Espino is a "qualified individual with a disability as defined in the Rehabilitation Act." (Id. ¶ 111). More specifically, the Complaint alleges that Espino suffers from various disabilities which hinder her ability to communicate. See (id. ¶¶ 14-15). For this reason, Espino relies on multiple auxiliary services, including an iPad's text-to-speech application, and the accompaniment of Lourdes and Coria, who interpret on behalf of Espino. See (id. ¶¶ 16-17). The Complaint then alleges that, prior to several medical operations scheduled at Defendant's hospitals, Espino met with Defendant's medical team and established an accommodation plan to address whatever communication difficulties that may arise during her treatment. See, e.g., (id. ¶¶ 18, 20-22, 42, 49-51, 70-71). Included in this plan, Espino requested that Lourdes and Coria be able to accompany her shortly before and after her operations. See (id.). However, on at least one occasion, Defendant failed to adhere to this accommodation plan, which resulted in Espino suffering from distress. See, e.g., (id. 23-36). Further, on at least one other occasion, Defendant failed to consult with Plaintiffs prior to the operation to learn what reasonable accommodations were necessary. See (id. ¶¶ 63-66). For these reasons, the Complaint alleges that Defendant "discriminated against [Espino] on the basis of [her] disability by denying [Espino] meaningful access to the services, programs, and benefits the [Defendant] . . . offer[s] to other individuals, and by refusing to provide [Espino] with auxiliary aids and services necessary to ensure effective communication, in violation of [Section 504]." (Id. ¶ 115). Collectively, the Court finds that these allegations are sufficient to state a claim for relief under Section 504.
Defendant only disputes whether it provided reasonable accommodations. Specifically, Defendant argues that Espino's accommodation plan was not "reasonable" in light of the ongoing COVID-19 pandemic and the various state regulations passed to limit the presence of hospital visitors. See (Mot. at 17-20); (Reply at 2-4). The Court finds several flaws with this argument. First, this argument is contradicted by the Complaint itself, which alleges that the Defendant's hospital representatives accepted Espino's accommodation plan prior to various medial operations. See, e.g., (id. ¶¶ 18, 20-22, 42, 49-51, 70-71). Second, as previously discussed, the Ninth Circuit has made clear that "[a]ssessing whether an entity 'provided appropriate auxiliary aids where necessary' to afford effective communication 'is a fact-intensive exercise' " and thus, is more appropriate for a finder of fact. See Bax, 52 F.4th at 867 (quoting Updike, 870 F.3d at 958)). Finally, Defendant does not cite any authority to support its argument that Espino's requested accommodation plan was unreasonable in light of her disabilities and the ongoing COVID-19 pandemic. For these reasons, Defendant's motion to dismiss is denied as to Espino's Section 504 claim.
2. Espino's ACA Claim
Per Section 1557 of the ACA, "[t]he enforcement mechanisms provided and available under . . . [Section 504] . . . shall apply for purposes of violations of this subsection. 42 U.S.C. § 18116(a). Section 1557 also provides for the Secretary of HHS to promulgate regulations implementing that section. 42 U.S.C. § 18116(c). The first regulations promulgated to enforce Section 1557 of the ACA became effective on July 18, 2016, and provided that:
A covered entity shall take appropriate steps to ensure that communications with individuals with disabilities are as effective as communications with others in health programs and activities, in accordance with the standards found at 28 CFR 35.160 through 35.164 [applicable to Title II of the ADA]. Where the regulatory provisions referenced in this section use the term "public entity," the term "covered entity" shall apply in its place.45 C.F.R. § 92.202, re-designated as 45 C.F.R. § 92.102. In doing so, the regulation adopts Title II's effective communication standards for ACA claims. See Bax, 52 F.4th at 872. Relatedly, the implementing regulations for Title II of the ADA provide: "[a] public entity shall take appropriate steps to ensure that communications" with disabled persons "are as effective as communications with others." 28 C.F.R. § 35.160(a)(1). Like Section 504, Title II regulations provide that "[a] public entity shall furnish appropriate auxiliary aids and services where necessary to afford individuals with disabilities, including . . . companions, . . . an equal opportunity to participate in, and enjoy the benefits of, a service, program, or activity of a public entity." 28 C.F.R. § 35.160(b)(1). Moreover, like Section 504, Title II states: "[i]n determining what types of auxiliary aids and services are necessity, a public entity shall give primary consideration to the requests of individuals with disabilities." 28 C.F.R. 35.160(b)(2). On this point, the Ninth Circuit has explained:
[t]he Appendix to the ADA regulations also makes clear that the public entity has a duty to ensure effective communications and establishes a required deference that must normally be given to a disabled person's personal choice of aid and service:Updike, 870 F.3d at 950 (quoting 28 C.F.R. § pt. 35, App. A (2009)). However, a covered entity is not required "to take any action that it can demonstrate would result in a fundamental alteration in the nature of a service, program, or activity or in undue financial and administrative burdens." 28 C.F.R. § 35.164.
The public entity shall honor the choice [of the individual with a disability] unless it can demonstrate that another effective means of communication exists or that use of the means chosen would not be required under § 35.164. Deference to the request of the individual with a disability is desirable because of the range of disabilities, the variety of auxiliary aids and services, and different circumstances requiring effective communication.
For all these reasons, the Ninth Circuit holds that an ACA cause of action is subject to the same analysis as a Section 504 claim. See Bax, 48 F.4th at 1021 ("[B]ecause the Baxes' ACA claims are otherwise subject to the same analysis as their Section 504 claims, the district court did not err in concluded that the Baxes failed to establish a violation of Section 1557" upon concluding that Section 504 was also violated). Therefore, for the same reasons the Court finds that Plaintiff Espino has sufficiently stated a Section 504 claim, it also finds that Plaintiff Espino has sufficiently stated an ACA claim.
IV. CONCLUSION
For the foregoing reasons, Defendant's Motion is GRANTED IN PART and DENIED IN PART, as follows:
(1) The Motion is GRANTED as to Plaintiffs' first claim under Title II of the ADA against Defendant. For the reasons stated in this opinion, leave to amend is granted to allow for Plaintiffs to assert a sufficient claim under Title II of the ADA against the Chiefs of Staff;
(2) The Motion as to Plaintiffs' second cause of action under Section 504 is DENIED, insofar as it alleges on behalf of Plaintiff Espino a Section 504 claim against Defendant and DOES 1-5; the Motion is GRANTED, insofar as the cause of action asserts on behalf of Plaintiffs Lourdes and Coria associational discrimination allegations against Defendant and DOES 1-5. However, leave to amend is granted;
(3) The Motion is DENIED as to Plaintiff Espino's third cause of action under the ACA;
(4) The Motion is GRANTED as to Plaintiffs' fourth and fifth causes of action under California Government Code Section 11135 and the Unruh Act, respectively. Those claims are DISMISSED WITH PREJUDICE.
Any amendment of the Complaint, if any, must be filed within fourteen (14) calendar days from the date of this order.
IT IS SO ORDERED.