Alexander v. Kujok

• Decision Date: 20 January 2016
• Docket Number: No. 2:15–cv–00477–MCE–CKD,2:15–cv–00477–MCE–CKD
• Citation: 158 F.Supp.3d 1012
• Court: U.S. District Court — Eastern District of California
• Parties: Kelly Alexander, an individual, Donald Porter, an individual, Plaintiffs, v. Hussam Kujok, an individual; Hussam Kujok, M.D., Inc.; Mark Debruin, an individual; Debruin Medical Center, A.P.C.; Gilbert Martinez, an individual; Family Medicine and Ambulatory Care Centers, Inc.; Dheeraj Kamra, an individual; Capitol Internal Medicine Associates ; Thomas A. Del Zotto, an individual; Robert W. Larsen, an individual; and Does 1 through 10 inclusive, Defendants.

158 F.Supp.3d 1012

Kelly Alexander, an individual, Donald Porter, an individual, Plaintiffs,

v.Hussam Kujok, an individual; Hussam Kujok, M.D., Inc.; Mark Debruin, an individual; Debruin Medical Center, A.P.C.; Gilbert Martinez, an individual; Family Medicine and Ambulatory Care Centers, Inc.; Dheeraj Kamra, an individual; Capitol Internal Medicine Associates ; Thomas A. Del Zotto, an individual; Robert W. Larsen, an individual; and Does 1 through 10 inclusive, Defendants.

No. 2:15–cv–00477–MCE–CKD

United States District Court, E.D. California.

Signed January 20, 2016

Filed January 21, 2016

Patricia Kramer, Brianna Marie Neasham, Neashan & Kramer, LLP, Folsom, CA, for Plaintiffs.

Thomas M. Garberson, Brian D. Johnson, Low McKinley Baleria & Salenko, LLP, Theodore Derk Poppinga, Schuering Zimmerman & Doyle, LLP, Dominique Ann Pollara, Pollara Law Group, Sacramento, CA, Joseph S. Picchi, Galloway, Lucchese, Everson & Picchi, Pleasant Hill, CA, Aaron T. Schultz, Galloway, Lucchese, Everson & Picchi, Walnut Creek, CA, Stephanie Rae Hanning, Schmid & Voiles, Los Angeles, CA, Mark R. Gibson, Bradley Curley Asiano Barrabee and Gale, P.C., Larkspur, CA, Michele Raley, Schmid & Voiles, Palo Alto, CA, for Defendants.

MEMORANDUM AND ORDER

MORRISON C. ENGLAND, JR.

, CHIEF JUDGE, UNITED STATES DISTRICT COURT

Through this lawsuit, Plaintiffs Kelly Alexander and Donald Porter (“Plaintiffs” unless otherwise noted) seek damages and injunctive relief under the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101, et seq.

(“ADA”). The jurisdiction of this court is premised on federal question jurisdiction in accordance with 28 U.S.C. § 1331. In addition to their federal claims under the ADA, Plaintiffs also assert pendant state law claims under 1) California's Unruh Civil Rights Act, California Civil Code § 51, et seq. ; 2) California's Disabled Persons Act, California Civil Code § 54, et seq. ; 3) California's Bane Act, California Civil Code § 52.1 ; and 4) common law negligence claims. Finally, Plaintiffs also assert a cause of action for violation of the Rehabilitation Act, 29 U.S.C. § 794. Presently before the Court are motions to dismiss brought by all six doctors/medical entities being sued as Defendants: 1) Hussam Kujok M.D. and his medical practice, Hussam Kujok, M.D., Inc. (collectively “Dr. Kujok”); 2) Mark Debruin and his medical practice, Debruin Medical Center A.P.C. (“Dr. Debruin”); 3) Gilbert Martinez and his practice, Family Medicine and Ambulatory Care Centers, Inc. (“Dr. Martinez”); 4) Dheeraj Kamra and his practice, Capitol Internal Medicine Associates (“Dr. Kamra”); 5) Thomas A. Del Zotto (“Dr. Del Zotto”); and 6) Robert W. Larsen (“Dr. Larsen”).

All six doctors argue that Plaintiffs lack standing to pursue ADA claims because they have no intent to return for further treatment, and that absent such intent subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1)¹

is lacking. Alternatively, Defendant physicians argue that Plaintiffs' claims fail to state a viable claim against them in any event, and that dismissal under Rule 12(b)(6) is therefore appropriate. Finally, Dr. Larsen argues that Plaintiffs' prayer for punitive damages should be stricken inasmuch as no such damages are authorized by any of the claims asserted by Plaintiffs in this lawsuit.

For the reasons set forth below, Defendants' Motions to Dismiss are GRANTED in part and DENIED in part.² Dr. Larsen's Motion to Strike the punitive damage allegations is DENIED.

BACKGROUND³

Plaintiffs, who are both profoundly deaf, use American Sign Language (“ASL”) as their primary means of communication. Both are on SSI and their Medi-Cal coverage was assigned to the Hills Medical Group, a large consortium of some 3,800 physicians. When their primary physician, Mark Moody, retired, both Plaintiffs needed to find a new doctor within the Hills Group. Plaintiffs Alexander and Porter were initially referred for that purpose to Drs. Kujok and Martinez, respectively.

Plaintiff Alexander was told by Dr. Kujok's office in April of 2014 that they were no longer accepting new patients once told she needed an ASL interpreter. Plaintiff's insurance agent then called and was ultimately told that Dr. Kujok was not willing to provide interpreting services.

Following Dr. Kujok's refusal to provide medical treatment with the aid of an ASL interpreter, Plaintiff Alexander sought care from several other Hills Physician Group doctors. In July of 2014, she was accepted as a patient by Dr. Debruin and scheduled an initial appointment on July 28, 2014. Dr. Debruin's office informed Plaintiff that they would not schedule an interpreter. Although his staff later told Plaintiff that they would make the necessary arrangements, when Alexander presented for her initial visit she was told that no interpreter had been ordered. During the course of his evaluation, Dr. Debruin told Alexander that she could communicate well and didn't need an interpreter. When Dr. Debruin suggested they use notes, Alexander explained that ASL is not English and is not directly translatable. According to Plaintiff, particularly when technical terms are involved, use of ASL is critical for purposes of accurate communication. Dr. Debruin's insistence that Plaintiff could in that event communicate in writing caused Alexander to leave his office.

Plaintiff Alexander was subsequently referred to a third potential primary care doctor, Dr. Kamra. Although Kamra's office staff originally advised Plaintiff that an ASL interpreter would be provided, when she arrived for her appointment no interpreter was present. Plaintiff went ahead and saw Dr. Kamra anyway because the foot injury she was suffering from had already been exacerbated by delay occasioned by the above-described interpreter issues. Alexander therefore felt she needed immediate attention and could not wait to reschedule. According to Plaintiff, her communication was impeded without an interpreter and Dr. Kamra failed to correctly note Plaintiff's allergy to iodine

.

Dr. Kamra did refer Plaintiff to a podiatrist, Dr. Del Zotto, to evaluate a foreign body in her left foot. Dr. Del Zotto told Plaintiff, however, that his business partner, Dr. Larsen, refused to provide interpreting services and that she would have to go to a different podiatrist. Plaintiff's appointment with Dr. Del Zotto was accordingly cancelled.

As a result of the conduct of the above-described physicians, Plaintiff Alexander claims that she encountered almost a year's delay in obtaining treatment for her foot condition which both exacerbated her physical discomfort and caused emotional distress.

The history recounted by the other Plaintiff, Porter, is similar though not as extensive. Dr. Martinez did initially provide a sign language interpreter at his initial intake visit with Plaintiff Porter on April 29, 2014. When Martinez realized Plaintiff Porter was watching the interpreter, Porter claims that Martinez “grabbed” Porter's face and stated “don't look at her, look at me. You can read my lips.” Porter at that point explained that he needed to look at the interpreter to understand what Dr. Martinez was saying. While Porter continued to see Dr. Martinez, after his third appointment, Porter claims that Dr. Martinez refused and/or failed to continue to provide a sign language interpreter, despite Porter's claim he could not understand what Dr. Martinez told him by lip reading alone. Porter alleges that Dr. Martinez' staff hung up on him repeatedly when he called through a relay operator service once the operators explained they were calling on behalf of a deaf person. Porter further alleges that Dr. Martinez' office was prohibited from communicating with him by text message, even though that was an effective way to schedule appointments, which resulted in Porter being required to drive to Dr. Martinez' office and schedule his appointments in person.

Although Plaintiff Alexander never actually saw Dr. Martinez, she claims that when she learned about Dr. Martinez' conduct from plaintiff Porter she cancelled her own appointment with Martinez since she believed “there was a substantial likelihood she would suffer the same discriminatory treatment if she was examined by Martinez.” FAC at ¶ 36.

Given these circumstances, Plaintiffs have sued the six doctors enumerated above. All six doctors have now filed similar, and in some instances virtually identical, motions to dismiss under Rules 12(b)(1) and 12(b)(6)

.

STANDARD

A. Motion to Dismiss for Lack of Standing

Where a plaintiff lacks standing to bring a claim, courts lack jurisdiction to hear that claim, and a motion to dismiss under Rule 12(b)(1)

is appropriate. Ballentine v. United States , 486 F.3d 806, 810 (3d Cir.2007).

B. Motion to Dismiss for Failure to State a Viable Claim

On a motion to dismiss for failure to state a claim under Rule 12(b)(6)

, all allegations of material fact must be accepted as true and construed in the light most favorable to the nonmoving party. Cahill v. Liberty Mut. Ins. Co. , 80 F.3d 336, 337–38 (9th Cir.1996). Rule 8(a)(2) “requires only ‘a short and plain statement of the claim showing that the pleader is entitled to relief’ in order to ‘give the defendant fair notice of what the...claim is and the grounds upon which it rests.’ ” Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (quoting Conley v. Gibson , 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957) ). A complaint attacked by a Rule 12(b)(6) motion to dismiss does not require detailed factual allegations. However, “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.” Id. (internal citations and quotations omitted). A court is not required to accept as true a “legal conclusion couched as a factual allegation.” Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d...