On April 13, 2023 attorneys for plaintiffs filed a Notice for Permission to Appeal Under Rule 203. That notice is here.
According to plaintiffs’ filing: “In this case, thousands of vulnerable senior citizens and people with mobility or vision disabilities seek redress for violations of their federal and state statutory rights. Seeking safe and affordable facilities to age in place, the putative class members have instead depleted their life savings and been subjected to neglect, financial abuse and loss of dignity. Brookdale Senior Living, Inc. (“Brookdale”), the largest provider of assisted living in the country, rejects the applicability of the Americans with Disabilities Act (“ADA”) to its California facilities, and engages in pervasive discrimination against residents with disabilities. Brookdale also makes false promises to care adequately for residents of its facilities despite severe understaffing, in violation of California’s consumer and elder abuse laws.”
The notice goes on to say: “The district court’s Order Granting in Part and Denying in Part Plaintiffs’ Motion for Class Certification and Granting and Denying Daubert Motions and Motions to Strike (‘Order’) denies the putative class members the only viable tool available to them to adjudicate their claims, undermines Congress’s intent that the ADA be ‘construed liberally’ to ‘provide clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities,’ and frustrates the purpose of California’s consumer protection statutes. PGA Tour, Inc. v. Martin, 532 U.S. 661, 676-77 (2001); 42 U.S.C. § 12201(b)(2); Cal. Civ. Code §§ 1750 et seq.; Cal. Welf. & Inst. Code § 15610.30.The Order is manifestly erroneous and should be reversed. This Court should grant Plaintiffs’ petition to appeal under Rule 23(f).”
On April 20, 2023 an amicus brief was filed by 15 non-profit organizations in support of plaintiffs’ 23(f) petition. The brief is here. The organizations included The Impact Fund, Disability Rights Education and Defense Fund, Disability Rights Advocates, AIDS Legal Referral Panel, Child Care Law Center, Disability Rights California, Family Violence Appellate Project, Learning Rights Law Center, Legal Aid at Work, Legal Assistance for Seniors, Legal Assistance to the Elderly, Mental Health Advocacy Services, National Housing Law Project, Prison Law Office, the Public Interest Law Project, and Senior Legal Services
On March 30, 2023, the Court issued an Order Granting in Part and Denying in Part Plaintiffs’ Motion for Class Certification and Granting and Denying Daubert Motions and Motions to Strike. The order is here. We are pleased that the Court reaffirmed its prior judgment that the Americans with Disabilities Act (“ADA”) applies to Brookdale’s assisted living facilities in California. We are especially pleased the Court certified a class of people who use wheelchairs and scooters under the theory that Brookdale’s Fleet Safety Policy, which requires scooter and power wheelchair users to transfer out of their scooter or wheelchair and onto either a manual wheelchair or a passenger seat within the van or bus in order to ride, violates Title III of the ADA.
We regret that the Court did not agree with us that all three proposed classes should be certified for injunctive relief and damages. We are reviewing our options and next steps.
Elderly, vulnerable seniors should not have to live in facilities that are inaccessible to residents with disabilities (e.g., that lack restrooms that are accessible, that lack accessible shower or toilets with grab bars or sinks that are accessible, and other critical ADA and CBC access features). Nor should they be forced to transfer from their scooters and wheelchairs while accessing Brookdale’s transportation services, be left for hours without toileting assistance and other vitally important services, or live in fear due to lack of evacuation plans that are sufficient to address the needs of persons with mobility and vision disabilities.
We continue to request that Brookdale make its facilities accessible to people with disabilities and staff its facilities with sufficient personnel to ensure that our clients are safe and receive the care for which they and their families have paid so dearly.