Gasca v. Monterey County et al, No. 5:2016cv04221 - Document 85 (N.D. Cal. 2019)
Court Description: ORDER GRANTING IN PART AND DENYING IN PART 73 DEFENDANT CFMG'S MOTION FOR SUMMARY JUDGMENT. Signed by Judge Beth Labson Freeman on 5/16/2019.(blflc1S, COURT STAFF) (Filed on 5/16/2019)
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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION 7 8 JAVIER GASCA, Plaintiff, 9 v. 10 United States District Court Northern District of California 11 Case No. 16-cv-04221-BLF COUNTY OF MONTEREY, et al., Defendants. 12 ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT CFMG’S MOTION FOR SUMMARY JUDGMENT [Re: ECF 73] 13 14 15 Plaintiff Javier Gasca (“Gasca”), a disabled individual who uses a wheelchair, claims that 16 17 he was discriminated against and denied adequate medical care while incarcerated at the Monterey 18 County Jail (“Jail”) between January 29, 2016 and August 22, 2016. He sues the County of 19 Monterey (“County”); the Monterey County Sheriff’s Office (“MCSO”), which operates the Jail; 20 and California Forensic Medical Group (“CFMG”), a private corporation hired by the County to 21 provide medical services at the Jail. The Court heard CFMG’s motion for summary judgment on May 9, 2019. The motion is 22 23 24 25 GRANTED IN PART AND DENIED IN PART for the reasons discussed below. I. BACKGROUND The following facts are limited to those relevant to the claims against CFMG, and they are 26 undisputed unless otherwise noted. Gasca was born with a condition called Arthrogryposis 27 Multiplex Congenita, which causes contractures and deformities of the joints in the arms and legs. 28 Chiang Decl. ¶ 5, ECF 74; Jail Intake Assessment, Exh. A to Bertling Decl. at 000001-000008, 1 ECF 73-3. He has been wheelchair dependent since childhood. Chiang Decl. ¶ 5; Salinas Valley 2 Memorial Hospital Records, Exh. B to Bertling Decl. at 0033-0043, ECF 73-4. Because he spends 3 the majority of his waking hours in a wheelchair, he is susceptible to getting pressure ulcers. 4 Garcia Dep. 30:15-24, Exh. A to Feldman Decl., ECF 76-1. Gasca was booked into the Jail on January 29, 2016. Chiang Decl. ¶ 20; Jail Intake United States District Court Northern District of California 5 6 Assessment, Exh. A to Bertling Decl. at 000001-000008, ECF 73-3. He came in with his own 7 wheelchair. Id. At intake, he indicated that he had an abscess on his back, but when he had a 8 medical examination on February 1, 2016, he did not have any active abscesses or sores. Chiang 9 Decl. ¶ 20; Jail Intake Assessment, Exh. A to Bertling Decl. at 000002, ECF 73-3; CFMG 10 Records, Exh. A to Bertling Decl. at 0142, ECF 73-3. Gasca began complaining of tenderness and 11 abscesses on his buttocks in late February. Chiang Decl. ¶ 21; CFMG Records, Exh. A to Bertling 12 Decl. at 0219, ECF 73-3. Examination showed induration under the site of an old abscess on the 13 right buttock.1 Chiang Decl. ¶ 21; CFMG Records, Exh. A to Bertling Decl. at 0142, ECF 73-3. 14 Gasca was treated with oral and topical antibiotics and warm compresses, and when he was re- 15 checked three days later, the tenderness and induration had improved. Id. On March 23, 2016, Gasca complained of an open pressure wound. Chiang Decl. ¶ 23; 16 17 CFMG Records, Exh. A to Bertling Decl. at 0141, ECF 73-3. He was treated with oral antibiotics 18 and daily dressing changes. Id. His family immediately replaced his wheelchair, and a second 19 mattress was prescribed to reduce pressure. Chiang Decl. ¶ 23; CFMG Records, Exh. A to 20 Bertling Decl. at 0140, ECF 73-3. When he was checked on April 7, 2016, the wound was 21 covered with a small Tegaderm dressing and there was no sign of infection. Chiang Decl. ¶ 24; 22 CFMG Records, Exh. A to Bertling Decl. at 0140, ECF 73-3. However, in mid-April, a new area 23 of redness had appeared on his buttock. Chiang Decl. ¶ 24; CFMG Records, Exh. A to Bertling 24 Decl. at 0135, ECF 73-3. When there was no improvement by April 19, 2016, an inflatable donut 25 was ordered to relieve pressure. Id. Gasca ultimately suffered three pressure wounds. Chiang 26 27 28 Induration is defined as either “an increase in the fibrous elements in tissue commonly associated with inflammation and marked by loss of elasticity and pliability,” or “a hardened mass or formation.” Merriam-Webster Online Dictionary, https://www.merriam-webster.com/dictionary (last accessed May 15, 2019). 2 1 United States District Court Northern District of California 1 Decl. ¶ 26; CFMG Records, Exh. A to Bertling Decl. at 0130, ECF 73-3. Two small pustules had 2 to be drained, but by early June 2016 the wounds had resolved to only three small pinhole-sized 3 lesions with no infection. Id. 4 On June 5, 2016, Gasca submitted a grievance complaining that he had developed 5 numerous abscesses that were not healing because they were not being treated properly at the jail 6 infirmary. Grievance, Exh. A to Bertling Decl. p. 000090, ECF 73-3. The grievance requested 7 treatment at the hospital, and stated that “if you guys cannot ecomidate [sic] to ones medical needs 8 or treatment by law you guys need to release me from custody.” Id. Lola Bayer, R.N., was 9 CFMG’s Director of Nurses and responsible for responding to grievances about medical issues. 10 Bayer Dep. 23:19-25, Exh. 3 to Feldman Decl., ECF 76-1. On the bottom half of the grievance 11 form, in the space reserved for “Findings/Recommendations,” Nurse Bayer noted that she had 12 responded to Gasca in person on June 10, 2016. Grievance, Exh. A to Bertling Decl. p. 000090, 13 ECF 73-3. The grievance form indicates that Nurse Bayer spoke to Gasca at 6:50 a.m. Id. 14 However, Gasca claims that Nurse Bayer went to his housing pod at 3:00 a.m., had a deputy wake 15 him and bring him out, and yelled at him for submitting the grievance. Gasca Dep. 81:19-82:13. 16 Gasca testified that Nurse Bayer told him not to submit any more grievances. Id. When 17 questioned about the incident at her deposition, Nurse Bayer stated that she did not reprimand 18 Gasca during the interaction but rather “educated” him. Bayer Dep. 36:10-22, Exh. 3 to Feldman 19 Decl., ECF 76-1. 20 On June 10, 2016, Gasca submitted a written request to CFMG for a “pink cup,” which is a 21 small pitcher to hold water. Request (attached to Garcia Dep.), Exh. 1 to Feldman Decl., ECF 76- 22 1; Gasca Dep. 62:16-63:9, Exh. 2 to Feldman Decl., ECF 76-1. Gasca requested the pink cup 23 because he could not reach the sinks in the Jail to get a drink of water on his own. Id. The request 24 was denied with the following notation: “Sir, we do not give pitchers out for chronic use. 25 Request denied. Medical Staff.” Request (attached to Garcia Dep.), Exh. 1 to Feldman Decl., 26 ECF 76-1. 27 28 Gasca did not complain about any pressure sores between early June 2016 and his release from Jail on August 22, 2016. Chiang Decl. ¶ 26; CFMG Records, Exh. A to Bertling Decl. at 3 United States District Court Northern District of California 1 0218-0219, ECF 73-3. CFMG’s medical records indicate that Gasca’s pressure sores continued to 2 improve and remained stable. Id. However, on the day he was released, Gasca went to the Salinas 3 Valley Memorial Hospital Emergency Department, complaining that he had a pressure sore which 4 had not been treated in the Jail. ED Records, Exh. B to Bertling Decl. pp. 181-83, ECF 73-4. The 5 treatment notes state, “On my examination I did not appreciate any masses or tenderness or 6 redness in his buttock region.” Id. A CT was ordered, but staff could not get an IV started and 7 Gasca declined to wait. Id. No antibiotic or other medication was prescribed. Id. A few days 8 later, on August 25, 2016, Gasca went to the San Gorgonio Memorial Hospital Emergency 9 Department. ED Records, Exh. C to Bertling Decl. pp. 8-19, ECF 73-5. There is no narrative 10 description of an examination of Gasca in those records, which indicate that he was treated for an 11 abscess and discharged with an antibiotic. Id. Gasca followed up with his physician on 12 September 9, 2016, at which time no open sores or abscesses were observed. Physician Records, 13 Exh. D to Bertling Decl. p. 35, ECF 73-6. 14 Gasca filed this action on July 26, 2016, while he was still incarcerated at the Jail, and he 15 filed the operative first amended complaint (“FAC”) on January 9, 2017. Compl., ECF 1; FAC, 16 ECF 37. The FAC asserts claims under: (1) Title II of the Americans with Disabilities Act, 42 17 U.S.C. § 12101 et seq.; (2) Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794(a); (3) 18 California’s Unruh Civil Rights Act, Cal. Civ. Code § 51; (4) the Eighth Amendment to the United 19 States Constitution; (5) California negligence law; and (6) the CDPA, Cal. Civ. Code § 54.1. CFMG is named as a defendant in Claim 3 for violation of California’s Unruh Civil Rights 20 21 Act and Claim 5 for medical malpractice. CFMG seeks summary judgment or, in the alternative, 22 partial summary judgment as to those claims. 23 24 II. LEGAL STANDARD “A party is entitled to summary judgment if the ‘movant shows that there is no genuine 25 dispute as to any material fact and the movant is entitled to judgment as a matter of law.’” City of 26 Pomona v. SQM North America Corp., 750 F.3d 1036, 1049 (9th Cir. 2014) (quoting Fed. R. Civ. 27 P. 56(a)). “The moving party initially bears the burden of proving the absence of a genuine issue 28 of material fact.” In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010) (citing Celotex 4 1 Corp. v. Catrett, 477 U.S. 317, 323 (1986)). “Where the moving party meets that burden, the 2 burden then shifts to the non-moving party to designate specific facts demonstrating the existence 3 of genuine issues for trial.” Id. “[T]he non-moving party must come forth with evidence from 4 which a jury could reasonably render a verdict in the non-moving party’s favor.” Id. “The court 5 must view the evidence in the light most favorable to the nonmovant and draw all reasonable 6 inferences in the nonmovant’s favor.” City of Pomona, 750 F.3d at 1049. However, “‘[w]here the 7 record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there 8 is no genuine issue for trial.’” Id. (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio 9 Corp., 475 U.S. 574, 587 (1986)). 10 United States District Court Northern District of California 11 III. DISCUSSION CFMG contends that it is entitled to summary judgment with respect to Gasca’s claims for 12 discrimination in violation of the Unruh Civil Rights Act (Claim 3) and medical malpractice 13 (Claim 5). The Court addresses those claims in reverse order. 14 A. 15 Claim 5, titled “Negligent Causation of Personal Injury,” alleges that CFMG had a duty to 16 provide “nondiscriminatory, safe and adequate access to the medical services it provided to Javier 17 Gasca as a disabled inmate.” FAC ¶ 53. The claim goes on to allege that “CFMG negligently 18 violated that duty by failing to provide nondiscriminatory, safe and adequate access to its medical 19 services to Plaintiff.” FAC ¶ 54. Finally, the claim asserts that as a result of CFMG’s negligence, 20 “Javier Gasca has sustained pain, suffering, emotional distress and general damages in an amount 21 to be ascertained according to proof at trial.” FAC ¶ 55. 22 Medical Malpractice (Claim 5) Despite the use of the term “nondiscriminatory” and the reference to Gasca’s disability, it 23 appears that Claim 5 is simply a common law medical malpractice claim. “In any medical 24 malpractice action, the plaintiff must establish: (1) the duty of the professional to use such skill, 25 prudence, and diligence as other members of his profession commonly possess and exercise; (2) a 26 breach of that duty; (3) a proximate causal connection between the negligent conduct and the 27 resulting injury; and (4) actual loss or damage resulting from the professional’s negligence.” 28 Borrayo v. Avery, 2 Cal. App. 5th 304, 310 (2016) (internal quotation marks, citations, and 5 1 2 “The standard of care against which the acts of a physician are to be measured is a matter 3 peculiarly within the knowledge of experts; it presents the basic issue in a malpractice action and 4 can only be proved by their testimony, unless the conduct required by the particular circumstances 5 is within the common knowledge of the layman.” Flowers v. Torrance Mem’l Hosp. Med. Ctr., 8 6 Cal. 4th 992, 1001 (1994) (internal quotation marks, citation, and alteration omitted). The “classic 7 example” of a situation in which the common knowledge exception would apply “is the X-ray 8 revealing a scalpel left in the patient’s body following surgery.” Id. Where the exception does not 9 apply, “expert evidence is conclusive and cannot be disregarded.” Id. (internal quotation marks 10 11 United States District Court Northern District of California alterations omitted). and citation omitted). CFMG submits the declaration and report of its retained medical expert, C. Hsien Chiang, 12 M.D. Chiang Decl., ECF 74. Dr. Chiang clearly is qualified to provide expert opinions in this 13 case. He has been a licensed physician and surgeon in California since 2001, he was employed as 14 a staff physician in the Orange County jail system from 2006 through 2011, and he was promoted 15 to the position of Medical Director for the Orange County Jail in 2011. Chiang Decl. ¶¶ 1-2. 16 Prior to rendering his opinions, Dr. Chiang reviewed Gasca’s medical records from the Jail, the 17 two emergency department visits discussed above, and Gasca’s physician. Chiang Decl. ¶ 4. He 18 also reviewed Gasca’s deposition, Nurse Bayer’s deposition, and the deposition of CFMG 19 physician Eliud Garcia, M.D. Id. After summarizing that records review, Dr. Chang concluded 20 that “CFMG and its staff provided care and treatment to Mr. Gasca that met or exceeded the 21 standard of care.” Chiang Decl. ¶ 35. He also concluded that, “to a degree of reasonable medical 22 probability, CFMG did not cause or contribute to any injuries related to Mr. Gasca’s pressure 23 sores.” Id. 24 Dr. Chiang’s expert opinions are sufficient to meet CFMG’s initial burden of proof on 25 summary judgment, since those opinions negate elements (2) and (4) of Gasca’s medical 26 malpractice claim. The burden thus shifts to Gasca to demonstrate the existence of genuine issues 27 for trial. In order to meet that burden, Gasca must present expert opinion evidence, because 28 appropriate treatment for chronic pressure sores is not within the common knowledge of a lay 6 1 person (and Gasca does not contend that it is). Gasca has not designated a medical expert in this 2 case, and he has not submitted expert opinion evidence to counter Dr. Chiang. United States District Court Northern District of California 3 Gasca attempts to establish the existence of material issues for trial by citing the testimony 4 of Dr. Eliud Garcia, a CFMG physician who provides medical services to Jail inmates and who 5 treated Gasca. As an initial matter, Dr. Garcia was not designated as an expert in this case. 6 Accordingly, it is unclear whether his testimony could satisfy Gasca’s burden of proof on 7 summary judgment even if it supported Gasca’s position. Moreover, Dr. Garcia’s testimony does 8 not suggest that CFMG’s treatment of Gasca fell below the standard of care. 9 Gasca points to Dr. Garcia’s testimony that the pressure wounds “could have been” caused 10 by shear force. Garcia Dep. 51:6-9, Exh.1 to Feldman Decl., ECF 76-1. Dr. Garcia also testified, 11 “I know that there are air and gel mattresses,” and “I believe I’ve used egg crate mattresses for 12 people before.” Garcia Dep. 40:15-41:18. Dr. Garcia did not prescribe a specialized mattress for 13 Gasca – he prescribed a second standard mattress. Garcia Dep. 40:3-13. Gasca asserts that Dr. 14 Garcia’s testimony creates “a triable issue of fact whether defendant breached the standard of care 15 . . . by failing to order a specialized mattress such as an egg create, gel or foam mattress in April 16 2016.” Opp. at 5, ECF 76. However, nothing in Dr. Garcia’s testimony suggests that a 17 specialized mattress is the standard of care, or that ordering a second standard mattress fell 18 beneath the standard of care. Similarly, nothing in Dr. Garcia’s testimony supports Gasca’s 19 contention that failing to order the second mattress earlier fell below the standard of care. 20 Gasca also points to Dr. Garcia’s testimony that iodine was used on one occasion to clean 21 Gasca’s wounds. Garcia Dep. 59:9-18, Exh. 1 to Feldman Decl., ECF 76-1. Dr. Garcia then was 22 asked, “Do you have an understanding that iodine can kill healthy tissue or damage healthy 23 tissue?” Id. Dr. Garcia responded, “It can be toxic to – yeah, new – new epithelial tissue. It’s 24 also a good antiseptic, so sometimes, you know . . . .” Id. Gasca argues that this testimony creates 25 “a triable issue of fact whether the use of iodine exacerbated or delayed healing of plaintiff’s 26 wounds.” Opp. at 5, ECF 76. Dr. Garcia did not testify that the use of iodine on one occasion 27 exacerbated Gasca’s wounds or delayed their healing. In fact, he stated that iodine is a good 28 antiseptic. The next portion of the deposition transcript, not provided by Gasca, shows that Dr. 7 1 Garcia went on to testify that “you would want to weigh the benefit/risk ratio of it all. I mean, 2 sometimes you might use the antiseptic quality of an iodine preparation and rinse it. It has less 3 cidal effect on new tissue than hydrogen peroxide.” Garcia Dep. 60:4-8, Exh F to Bertling Reply 4 Decl., ECF 77-1. Nothing in this testimony suggests that use of iodine on Gasca’s wounds was 5 below the standard of care. 6 7 genuine issue for trial with respect to his medical malpractice claim. CFMG’s motion for 8 summary judgment is GRANTED as to Claim 5. 9 10 United States District Court Northern District of California Gasca therefore has failed to meet his burden to present evidence sufficient to create a B. Unruh Civil Rights Act (Claim 3) Claim 3 asserts that CFMG violated California’s Unruh Civil Rights Act, which entitles all 11 persons to “full and equal accommodations, advantages, facilities, privileges, or services in all 12 business establishments of every kind whatsoever.” Cal. Civ. Code § 51(b). “To prevail on a 13 disability discrimination claim under the Unruh Civil Rights Act, a plaintiff must establish that (1) 14 she was denied the full and equal accommodations, advantages, facilities, privileges, or services in 15 a business establishment; (2) her disability was a motivating factor for this denial; (3) defendants 16 denied plaintiff the full and equal accommodations, advantages, facilities, privileges, or services; 17 and (4) defendants’ wrongful conduct caused plaintiff to suffer injury, damage, loss or harm.” 18 Wilkins-Jones v. Cty. of Alameda, 859 F. Supp. 2d 1039, 1048 (N.D. Cal. 2012) (internal quotation 19 marks, citation, and alterations omitted). CFMG qualifies as a “business establishment” under the 20 statute. See id. at 1050 (holding that private corporation hired by county to provide medical care 21 to jail inmates was a business establishment under Unruh Act). 22 The FAC alleges an Unruh Act violation in only the most general terms, asserting that 23 CFMG denied Gasca “the full and equal accommodations, advantages, facilities, privileges or 24 medical services offered by CFMG.” FAC ¶ 40, ECF 37. In its summary judgment motion, 25 CFMG proceeds on the assumption that Gasca is asserting an Unruh Act violation based on the 26 failure to provide him with appropriate care for his pressure ulcers. Motion at 16, ECF 73-1. In 27 his opposition, however, Gasca clarifies that his Unruh Act claim is based on (a) the denial of his 28 request for a “pink cup,” and (b) Nurse Bayer’s conduct in addressing his grievance. See Opp. at 8 1 United States District Court Northern District of California 2 7-9, ECF 76. 1. Pink Cup/Water Pitcher 3 Turning first to the claim based on the pink cup, the Court understands Gasca to be arguing 4 that he was entitled to the same access to drinking water in the Jail as other, non-disabled inmates; 5 the sinks and drinking fountains at the jail were not wheelchair accessible; and he was denied a 6 water pitcher which would have been a reasonable accommodation allowing him access to 7 drinking water. Missing from this argument is any evidence that CFMG bore responsibility for 8 accessibility to drinking water in the main Jail. The record shows that Gasca’s request for a pink 9 cup was made and denied in June 2016, when he was housed in a regular jail unit. CFMG Progress 10 Notes, Exh. A to Bertling Decl. at 000126, ECF 73-3. In July 2016, Gasca was moved to the 11 Outpatient Housing Unit, which the Court understands to be part of or related to the infirmary. Id. 12 At that time, he was provided with a water pitcher by CFMG staff. Id. 13 The record is clear that the barrier identified by Gasca was a fixture of the Jail facility 14 maintained by Monterey County. Gasca cites no evidence to support his contention that CFMG 15 was the proper party to provide a reasonable accommodation for barriers in the Jail. At the 16 hearing, Gasca’s counsel argued that water is a medical need, and that CFMG can be held liable 17 under the Unruh Act for failing to provide a water pitcher in the main Jail. Absent evidence or 18 authority to support the position that this was CFMG’s responsibility, it appears that Gasca has 19 sued the wrong party. The motion for summary judgment is GRANTED as to Claim 3 to the 20 extent the claim is based on the denial of a water pitcher. 21 22 2. Nurse Bayer’s Conduct With respect to the Unruh Act claim based on Nurse Bayer’s conduct, CFMG argues that 23 there is insufficient evidence to show that Nurse Bayer yelled at Gasca and directed him not to file 24 future grievances because the only evidence of such conduct is Gasca’s “self-serving” declaration. 25 See Reply at 8, ECF 77. CFMG relies on Burchett v. Bromps, 466 F. App’x 605 (9th Cir. 2012), 26 holding that “a conclusory, self-serving affidavit, lacking detailed facts and any supporting 27 evidence, is insufficient to create a genuine issue of material fact” at the summary judgment stage. 28 Burchett is factually distinguishable from the present case. Burchett sued his parole officer, 9 United States District Court Northern District of California 1 Bromps, for violation of the First Amendment based on Bromps’ alleged statement that Burchett 2 could not attend a Seventh Day Adventist church while on parole. Burchett, 466 F. App’x at 606. 3 The Ninth Circuit affirmed the district court’s grant of summary judgment to Bromps, holding that 4 Burchett’s “single statement in a deposition” regarding Bromps’ alleged oral condition was 5 insufficient to create a triable issue of fact absent “some detailed facts or other evidence to support 6 his conclusory claim.” Burchett, 466 F. App’x at 607. In the present case, Gasca’s testimony 7 regarding Nurse Bayer’s conduct went beyond a single statement, and he provided details 8 regarding the circumstances of the conversation and what was said. Gasca Dep. 81:19-82:13, Exh. 9 2 to Feldman Decl., ECF 76-1. Nurse Bayer does not deny that she spoke to Gasca about his 10 grievance, although she disputes several details of Gasca’s account. Bayer Dep. 36:10-22, Exh. 3 11 to Feldman Decl., ECF 76-1. Thus, Gasca’s claim does not turn on a stray, unsupported statement 12 but rather on how a trier of fact resolves the “he said – she said” versions of events presented by 13 the conflicting testimony of Gasca and Nurse Bayer. 14 CFMG argues that even if Nurse Bayer yelled at Gasca, there is no evidence in the record 15 showing that such yelling constituted intentional discrimination based on Gasca’s disability. The 16 law is settled intentional discrimination need not be shown when the plaintiff asserts claims under 17 both the Americans with Disabilities Act (“ADA”) and the Unruh Act, and the Unruh Act claim is 18 based on the ADA claim. See Wilkins-Jones, 859 F. Supp. 2d at 1051 (“[T]o the extent Plaintiff 19 seeks to raise her Unruh Act claim through an ADA violation, she need not plead intentional 20 discrimination.”); Munson v. Del Taco, Inc., 46 Cal. 4th 661, 665 (2009) (“A plaintiff who 21 establishes a violation of the ADA, therefore, need not prove intentional discrimination in order to 22 obtain damages under section 52.”). This is because the Unruh Act expressly provides that “[a] 23 violation of the right of any individual under the federal Americans with Disabilities Act of 1990 24 (Public Law 101-336) shall also constitute a violation of this section.” Cal. Civ. Code § 51(f). 25 Where no ADA claim is asserted, however, it is unclear whether intentional discrimination 26 must be shown. Some courts in this district have held that, “To the extent Plaintiff seeks to make 27 an Unruh Act claim separate from an ADA claim, she must allege intentional discrimination.” 28 Wilkins-Jones, 859 F. Supp. 2d at 1051; see also Earll v. eBay, Inc., No. 5:11-CV-00262-JF HRL, 10 United States District Court Northern District of California 1 2011 WL 3955485, at *3 (N.D. Cal. Sept. 7, 2011) (“A violation of the Unruh Act may be 2 maintained independent of an ADA claim where a plaintiff pleads intentional discrimination in 3 public accommodations in violation of the terms of the Act.” (internal quotation marks and 4 citation omitted)). CFMG relies on these cases in asserting that, because Gasca has not alleged an 5 ADA claim against CFMG, Gasca must present evidence of intentional discrimination in order to 6 defeat CFMG’s summary judgment motion. Gasca cites Wilson v. Murillo, 163 Cal. App. 4th 7 1124 (2008), in support of his position that intentional discrimination is not required for an Unruh 8 Act claim which is based on conduct which would constitute a violation of the ADA, even where 9 no ADA claim is alleged. Wilson does not expressly address whether an Unruh Act claim requires 10 a showing of intentional discrimination absent an ADA claim. However, the California Court of 11 Appeal held that “violations under the ADA are expressly incorporated into the Unruh Act” and 12 may form the basis of an Unruh Act claim even where no ADA claim is pled. Wilson, 163 Cal. 13 App. 4th at 1132. Specifically, the Court of Appeal found proper an Unruh Act claim based on 14 ADA provisions prohibiting retaliation and intimidation/coercion, even though the Unruh Act 15 itself does not contain similar provisions. Id. at 1132-33. 16 The Court need not resolve the issue here, because even assuming that Gasca must 17 establish intentional discrimination to prevail on his Unruh Act claim, he has presented evidence 18 giving rise to a reasonable inference that the requirement is met. Gasca’s evidence shows the 19 following: he submitted a grievance stating that he was not receiving medical care for his 20 abscesses (Grievance, Exh. A to Bertling Decl. p. 000090, ECF 73-3); the abscesses result from 21 his disability, that is, from the necessity of spending so many hours in a wheelchair (Garcia Dep. 22 30:15-24, Exh. 1 to Feldman Decl., ECF 76-1); Nurse Bayer had Gasca woken at 3:00 a.m., yelled 23 at him for submitting the grievance, and told him not submit any more grievances (Gasca Dep. 24 81:19-82:13); and Gasca did not submit any more grievances (Bayer Dep. 27:13-25, Exh. 3 to 25 Feldman Decl., ECF 76-1). A jury could find that Nurse Bayer intentionally discriminated against 26 Gasca for attempting to get appropriate medical care for his disability, and tried to intimidate him 27 into refraining from exercising his rights to seek such care in the future. Nurse Bayer was the 28 person CFMG designated to respond to grievances regarding medical care. Bayer Dep. 23:21-25. 11 CFMG argues that, at most, Gasca’s evidence shows that Nurse Bayer’s conduct was United States District Court Northern District of California 1 2 motivated by Gasca’s submission of a grievance. Counsel argued at the hearing that just because 3 the grievance was regarding treatment for sores that Gasca suffered as a result of his disability, 4 yelling about the grievance does not equate to yelling about the disability. The Court declines to 5 draw that distinction as a matter of law where, as here, Gasca’s abscesses are so closely related to 6 his disability. The Court concludes that whether Nurse Bayer had a discriminatory motive is a 7 question for the jury, assuming that the Court ultimately agrees with CFMG’s position that 8 intentional discrimination is required. The precise contours of the Unruh Act claim, and whether 9 intentional discrimination is required absent an ADA claim, are issues that will be resolved in the 10 context of jury instructions should this case go to trial. For purposes of the present motion, the 11 Court need only find that there are disputed facts regarding Nurse Bayer’s conduct and 12 motivations which preclude summary judgment on Gasca’s Unruh Act claim even if intentional 13 discrimination is a required element. The motion for summary judgment is DENIED as to Claim 3 to the extent the claim is 14 15 16 based on Nurse Bayer’s conduct. IV. ORDER 17 CFMG’s motion for summary judgment is 18 (1) GRANTED IN PART as to Claim 3, to the extent it is based on the pink cup; 19 (2) DENIED IN PART as to Claim 3, to the extent it is based on Nurse Bayer’s conduct; and 20 21 (3) GRANTED as to Claim 5. 22 23 24 25 Dated: May 16, 2019 ______________________________________ BETH LABSON FREEMAN United States District Judge 26 27 28 12
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