Martinez v. County of Alameda

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 LISAMARIA MARTINEZ, Case No. 20-cv-06570-TSH

8 Plaintiff, ORDER RE JURY INSTRUCTIONS 9 v. AND VERDICT FORM

10 COUNTY OF ALAMEDA, 11 Defendant.

12 13 This order addresses issues relating to the jury instructions and verdict form. 14 A. Nominal damages 15 The Court asked the parties to brief the following question: If the jury finds in favor of 16 Plaintiff on her Americans with Disabilities Act claim, but also finds there was no deliberate 17 indifference, may the jury award her nominal damages? The parties briefed this issue at ECF Nos. 18 141 and 153. 19 The Ninth Circuit has held that “[t]o recover monetary damages under Title II of the ADA 20 . . . a plaintiff must prove intentional discrimination on the part of the defendant.” Duvall v. 21 County of Kitsap, 260 F.3d 1124, 1138 (9th Cir. 2001) (citing Ferguson v. City of Phoenix, 157 22 F.3d 668, 674 (9th Cir. 1998)). In Duvall, the Court of Appeals determined that the appropriate 23 test for intentional discrimination under the ADA is deliberate indifference. See id. If nominal 24 damages are simply a type of monetary damages, then Duvall and Ferguson answer the Court’s 25 question: No. 26 Other courts seem to have come to that conclusion as well. In evaluating the availability of 27 nominal damages under Title II of the ADA, the title at issue in this case, Cassidy v. Indiana Dept. 1 damages would be available for intentional violations of the ADA,” id. at 793; see also Francois 2 v. Our Lady of the Lake Hospital, Inc., 8 F.4th 370, 379 (5th Cir. 2021) (plaintiff “has made no 3 attempt to argue that his nominal-damages claims, if any exist, are not subject to the same 4 intentional-discrimination standard as a claim for compensatory monetary damages.”); Nix v. 5 Advanced Urology Institute of Georgia, PC, 2021 WL 3626763, *3 (11th Cir. Aug. 17, 2021) 6 (“Because Nix cannot prove deliberate indifference, she cannot recover any monetary damages— 7 either compensatory or nominal.”); Juech v. Children’s Hospital and Health System, Inc., 353 F. 8 Supp. 3d 772, 787 (E.D. Wis. 2018) (“A reasonable finder of fact could conclude that [plaintiff] 9 was subject to discrimination under the ADA and the Rehabilitation Act. However, no reasonable 10 finder of fact could find that this alleged discrimination was the result of deliberate indifference. 11 Therefore, [plaintiff’s] Rehabilitation Act claim fails. Although [plaintiff] argues that she may 12 still pursue nominal damages, she offers no relevant authority for that proposition.”). In light of 13 these authorities, the Court concludes that Plaintiff must show deliberate indifference to recover 14 nominal damages on her ADA claim. 15 In Bayer v. Neiman Marcus Group, 861 F.3d 853 (9th Cir. 2017), the Court of Appeals 16 held that 42 U.S.C. § 12203 “authorizes courts to award nominal damages as equitable relief when 17 complete justice requires.” Id. at 874. The Court is unsure if Bayer’s holding applies here. 18 Section 12203 is part of a different title of the ADA, and violations of that section are addressable 19 only by equitable relief. Id. at 863. The Court of Appeals concluded that the award of nominal 20 damages in that case was the only way the plaintiff could obtain complete justice, as his case had 21 otherwise become moot. Id. at 874. In this case, Plaintiff is suing for a violation of Title II of the 22 ADA, and her potential remedies include both damages and an injunction. Nothing about her 23 ADA claim is moot, and indeed we are currently in her jury trial. The Court finds that, assuming 24 the holding of Bayer is applicable, an award of nominal damages is not necessary for complete 25 justice. 26 B. DOJ guidance 27 The Court also asked the parties to brief the question whether the Court should include 1 constitutes effective communication under the ADA. The parties briefed the issue at ECF Nos. 2 141 and 154. 3 By way of background, below are Plaintiff’s proposed edits to the Court’s proposed final 4 instruction concerning effective communication. The Court has inserted numbers in brackets to 5 assist the discussion: 6 The second element required under the Americans with Disabilities 7 Act that Plaintiff must establish by a preponderance of the evidence is that she was either excluded from participation in or denied the 8 benefits of the defendant’s services, programs, or activities, or was otherwise discriminated against by the defendants. 9 The Americans with Disabilities Act requires that a public entity shall 10 [1] take appropriate steps to ensure that communications with applicants, participants, members of the public, and companions with 11 disabilities are as effective as communications with others. Furthermore, a public entity must furnish appropriate auxiliary aids 12 and services where necessary to afford individuals with disabilities, including applicants, participants, companions, and members of the 13 public, an equal opportunity to participate in, and enjoy the benefits of, a service, program, or activity of a public entity. The type of 14 auxiliary aid or service necessary to ensure effective communication will vary in accordance with the method of communication used by 15 the individual; the nature, length, and complexity of the communication involved; and the context in which the 16 communication is taking place. In determining what types of auxiliary aids and services are necessary, a public entity shall give primary 17 consideration to the requests of individuals with disabilities. [2] The public entity shall honor the choice of the individual with a disability 18 unless it can demonstrate that another effective means of communication exists. [3] Deference to the request of the individual 19 with a disability is desirable because of the range of disabilities, the variety of auxiliary aids and services, and different circumstances 20 requiring effective communication. In order to be effective, auxiliary aids and services must be provided in accessible formats, in a timely 21 manner, and in such a way as to protect the privacy and independence of the individual with a disability. [4] The purpose of the effective 22 communication rules is to ensure that the person with a vision, hearing, or speech disability can communicate with, receive 23 information from, and convey information to, the covered entity.

24 Auxiliary aids and services includes [5] but is not limited to:— (1) Qualified interpreters on-site or through video remote interpreting 25 (VRI) services; notetakers; real-time computer-aided transcription services; written materials; exchange of written notes; telephone 26 handset amplifiers; assistive listening devices; assistive listening systems; telephones compatible with hearing aids; closed caption 27 decoders; open and closed captioning, including real-time captioning; captioned telephones, or equally effective telecommunications 1 devices; videotext displays; accessible electronic and information technology; or other effective methods of making aurally delivered 2 information available to individuals who are deaf or hard of hearing;

3 (2) Qualified readers; taped texts; audio recordings; Brailled materials and displays; screen reader software; magnification software; optical 4 readers; secondary auditory programs (SAP); large print materials; accessible electronic and information technology; or other effective 5 methods of making visually delivered materials available to individuals who are blind or have low vision; 6 (3) Acquisition or modification of equipment or devices; and 7 (4) Other similar services and actions. 8 [6] A “qualified reader” means a person who is able to read 9 effectively, accurately, and impartially using any necessary specialized vocabulary. [7] Reading devices or readers should be 10 provided when necessary for equal participation and opportunity to benefit from any governmental service, program, or activity, such as 11 reviewing public documents, examining demonstrative evidence, and filling out voter registration forms or forms needed to receive public 12 benefits. 13 ECF No. 131-1. 14 The first edit comes from a regulation (28 CFR § 35.160(a)(1)), so will be included. The 15 sixth edit also comes from a regulation (28 CFR § 35.104), so will also be included. The Court 16 rejects the fifth edit because it is duplicative “other similar services and actions” in subpart (4) of 17 the instruction. 18 The second and third edits come from Appendices A and B to part 35 of 28 CFR. The 19 seventh edit comes from Appendix B to part 35 of 28 CFR. Plaintiff does not say where the fourth 20 edit comes from, but the Court has been able to locate it in guidance documents available on 21 ada.gov. These are the proposed edits implicated by this dispute. Defendants argue that non- 22 binding guidance is not the same thing as law, and because jury instructions “must correctly state 23 the law,” Dang v. Cross, 422 F.3d 800, 804 (9th Cir. 2005), they assert that no DOJ guidance 24 should be included in the jury instructions. 25 The Court concludes, however, that DOJ guidance can be a correct statement of the law. 26 The Ninth Circuit has held that DOJ’s interpretation of its own ADA regulations is entitled to 27 Seminole Rock deference, such as “[w]e must give an agency’s interpretation of its own 1 Miller v. California Speedway Corp., 536 F.3d 1020, 1028 (9th Cir. 2008) (cleaned up). “We 2 have explained that when the meaning of regulatory language is ambiguous, the agency’s 3 interpretation controls so long as it is reasonable, that is, so long as the interpretation sensibly 4 conforms to the purpose and wording of the regulation.” Id. (cleaned up); see also Botosan v. 5 Paul McNally Realty, 216 F.3d 827, 834 (9th Cir. 2000); Oregon Paralyzed Veterans of America 6 v. Regal Cinemas, Inc., 339 F.3d 1126, 1131 (9th Cir. 2003). 7 Thus, the Court rejects Defendant’s argument that it should reject all DOJ guidance out of 8 hand. Rather, the Court will consider that guidance. In addition, the Court is mindful that it is 9 drafting a jury instruction, and the Court must be attuned to not only whether the DOJ guidance is 10 accurate but also whether it is appropriate to include in a jury instruction. 11 Let’s turn to the second proposed edit: “The public entity shall honor the choice of the 12 individual with a disability unless it can demonstrate that another effective means of 13 communication exists.” (emphasis added). The Court has concerns about whether this particular 14 guidance sensibly conforms to the purpose and wording of the regulation – and, more importantly, 15 what this guidance does to the burden of proof in this lawsuit. In the absence of this guidance, the 16 regulation states that “[i]n determining what types of auxiliary aids and services are necessary, a 17 public entity shall give primary consideration to the requests of individuals with disabilities.” 28 18 CFR § 35.160(b)(2). To establish an ADA violation, Plaintiff would have the burden to prove 19 Defendant didn’t do that. While it is possible to read the guidance as merely providing clarity on 20 what “primary consideration” means, as a practical matter, this guidance changes what Plaintiff 21 needs to prove and substantively alters the burden of proof in this case. Under this guidance, to 22 make a submissible case, all Plaintiff would need to prove is that her choice of auxiliary aid or 23 service was rejected, and then the burden would shift to the Defendant to demonstrate that another 24 effective means of communication existed. On the facts of this case, this is a significant alteration 25 of the burden of proof that could easily alter the outcome of the trial. Nothing in the regulation 26 purports to alter the normal burden of proof in a federal lawsuit, and this attempt to do so in 27 guidance does not “sensibly conform[] to the purpose and wording of the regulation.” Miller, 536 1 The third and fourth proposed edits do not belong in a jury instruction because they do not 2 describe legal obligations. The third edit describes why giving primary consideration to the 3 request of an individual with a disability is a good idea. Most laws are designed to implement 4 good ideas. Normally, courts put the law’s requirements in a jury instruction and do not list the 5 good ideas the law was enacted to carry out. Similarly, the fourth proposed edit describes the 6 purpose of the effective communications rules. Most laws have salutary purposes. Jury 7 instructions normally just say what the law requires and do not go on to describe the purposes for 8 which the law was enacted. The Court rejects the third and fourth proposed edits. 9 The seventh proposed edit seems fine. It sensibly conforms to 28 CFR § 35.160(b) and to 10 the second paragraph of 28 CFR § 35.104’s definition of “auxiliary aids and services.” The 11 second paragraph of that definition refers to qualified readers and then lists several types of 12 reading devices. The guidance’s use of the term “reading devices” is an easily understood 13 shorthand for the devices listed in the regulation that will make it easier for the jury to understand 14 what is being referred to. Further, the guidance’s reference to specific examples of covered 15 government services (“reviewing public documents, examining demonstrative evidence, and 16 filling out voter registration forms or forms needed to receive public funds”) is fully consistent 17 with the regulation. Those examples will assist the jury in understanding how the regulations 18 apply in this case. Further, even aside from Seminole Rock deference, and without any deference 19 to DOJ, the Court independently concludes that the seventh proposed edit is a correct statement of 20 the law. Accordingly, the Court accepts the seventh proposed edit. 21 C. DPA damages 22 The Court does not believe the Ninth Circuit has resolved whether public entities can be 23 liable for damages under the California Disabled Persons Act. The Court finds the opinion in 24 Lonberg v. City of Riverside, 300 F. Supp. 2d 942, 946-49 (C.D. Cal. 2004), persuasive and will 25 follow it. Accordingly, the Court will instruct the jury on DPA damages and will include that on 26 the verdict form. 27 D. State law 1 Government Code section 27203(d), which provides that “[a]ny recorder to whom an instrument 2 proved or acknowledged according to law or any paper or notice which may by law be recorded is 3 delivered for record is liable to the party aggrieved for the amount of the damages occasioned 4 thereby, if he or she commits any of the following acts: . . . Alters, changes, obliterates, or inserts 5 any new matter in any records deposited in the recorder’s office, unless the recorder is correcting 6 an indexing error. The recorder may make marginal notations on records as part of the recording 7 process.” 8 Defendant takes the view that a record that is handed to an employee in the Clerk 9 Recorder’s Office (“CRO”) is “deposited” while it is in the hand of the employee, such that if the 10 employee makes alterations to it, that would violate the statute. Defendant’s witnesses have 11 testified that compliance with this law is the primary reason the CRO refused to make the 12 requested edits to Plaintiff’s FBNS form. Plaintiff argues that “deposited” in the statute means 13 that the record has been formally filed or recorded, which Plaintiff’s form was not when her 14 request for assistance was rejected. 15 There should not be a jury instruction concerning the correct meaning of section 27203(d) 16 because it is not part of any claim or affirmative defense in this lawsuit. The Court will instruct on 17 the meaning of the ADA provisions at issue, the DPA, and California Government Code section 18 11135 because those are the claims going to the jury. Section 27203(d) is a provision of state law, 19 so obviously can’t change the liability standards under the federal ADA or provide any kind of 20 affirmative defense to compliance with the ADA. The DPA says that a violation of the ADA is a 21 per se violation of the DPA (Cal. Gov. Code § 54(c)), so section 27203(d) also doesn’t seem like a 22 defense to a DPA claim that is derivative of an ADA claim, as is true in this case. Further, 23 Plaintiff’s ADA claim is under 42 U.S.C. § 12132 and the regulations adopted in implementation 24 thereof, a violation of which automatically satisfies the disability-discrimination element of 25 Government Code section 11135. See Cal. Gov. Code § 11135(b). So, it seems like compliance 26 with section 27203(d) also isn’t a defense to a section 11135 claim that is derivative of a 42 U.S.C. 27 § 12132 violation, as is the case here. Thus, section 27203(d) is not an element of any of 1 However, the Court will also not instruct the jury to ignore testimony concerning section 2 27203(d). Plaintiff is seeking damages under the ADA. To recover damages, she must show the 3 Defendant acted with deliberate indifference to her federally protected rights. Duvall v. County of 4 Kitsap, 260 F.3d 1124, 1138-39 (9th Cir. 2001). The Ninth Circuit has explained:

5 A public entity’s duty on receiving a request for accommodation is well settled by our case law and by the applicable regulations. It is 6 required to undertake a fact-specific investigation to determine what constitutes a reasonable accommodation, and we have provided the 7 criteria by which to evaluate whether that investigation is adequate. Mere speculation that a suggested accommodation is not 8 feasible falls short of the reasonable accommodation requirement; the Acts create a duty to gather sufficient information from the disabled 9 individual and qualified experts as needed to determine what accommodations are necessary. . . . [A] public entity does not act by 10 proffering just any accommodation: it must consider the particular individual’s need when conducting its investigation into what 11 accommodations are reasonable. Because in some instances events may be attributable to bureaucratic slippage that constitutes 12 negligence rather than deliberate action or inaction, we have stated that deliberate indifference does not occur where a duty to act may 13 simply have been overlooked, or a complaint may reasonably have been deemed to result from events taking their normal course. Rather, 14 in order to meet the second element of the deliberate indifference test, a failure to act must be a result of conduct that is more than negligent, 15 and involves an element of deliberateness. 16 Id. at 139 (cleaned up). 17 The Court thinks that an employee’s sincere belief that the assistance requested by an 18 individual with a disability would violate a state law, even if that belief is mistaken, is relevant to 19 whether the public entity acted with deliberate indifference. Look at it this way: people can have 20 better and worse reasons for what they do. Surely a public entity that can point to some logical 21 reason for what it did is less likely to be found deliberately indifferent than one that can point to 22 nothing or whose motives were affirmatively awful. The deliberate indifference inquiry considers 23 whatever reasons were given on the facts of the case. The Court is not saying, of course, that a 24 state law can absolve a public entity of damages liability under the ADA. The Court is just saying 25 that a sincere belief that the requested assistance posed legal problems (and the jury decides 26 sincerity) is among the factual evidence the jury can take into consideration when deciding if the 27 deliberate indifference standard has been met. Further, the Court will not instruct the jury on the 1 to the Defendant or its employees on March 29, 2019, the date of the alleged ADA violation, and 2 thus cannot have informed their intent. 3 IT IS SO ORDERED. 4 5 Dated: March 29, 2024 6 TAA. by THOMAS S. HIXSON 7 United States Magistrate Judge 8 9 10 ll a 12

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