April Kittel v. Advantage Physical Therapy ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 15 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
APRIL KITTEL, No. 19-55690
Plaintiff-Appellant, D.C. No.
2:17-cv-06709-MWF-GJS
v.
ADVANTAGE PHYSICAL THERAPY; et MEMORANDUM*
al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Michael W. Fitzgerald, District Judge, Presiding
Submitted January 12, 2021**
Pasadena, California
Before: WATFORD, FRIEDLAND, and BENNETT, Circuit Judges.
Plaintiff April Kittel appeals from the district court’s grant of summary
judgment in favor of Defendants Blayne Liparoto and Advantage Physical Therapy
(collectively, the “Advantage Defendants”). Kittel also challenges the district
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
court’s denial of her request for leave to file a third amended complaint and its
decision not to award her attorney’s fees and costs. We have jurisdiction under 28
U.S.C. § 1291 and affirm.1
We review a district court’s grant of summary judgment de novo. See
Pavoni v. Chrysler Grp., LLC, 789 F.3d 1095, 1098 (9th Cir. 2015). We review a
denial of leave to amend and a denial of attorney’s fees under California Health &
Safety Code section 123120 for an abuse of discretion. See Alvarez v. Chevron
Corp., 656 F.3d 925, 931 (9th Cir. 2011); Cal. Health & Safety Code § 123120(explaining that fees and costs may be awarded “in the discretion of the court”).
First, the district court did not abuse its discretion in denying Kittel a third
opportunity to amend her complaint. The court appropriately held that Kittel had
failed to articulate why the proposed amendments could not have been
incorporated into prior iterations of her complaint, given the additional allegations
1
Kittel filed this appeal prematurely, before final judgment had issued and
while the claims against the City of Oxnard and Kittel’s former supervisor, Sylvia
Paniagua, were still pending. Subsequently, Kittel settled all claims against the
City and Ms. Paniagua, which rendered the district court’s orders as to the
Advantage Defendants functionally equivalent to a final judgment. We “take a
pragmatic approach to finality in situations where events subsequent to a nonfinal
order fulfill the purposes of the final judgment rule.” Dannenberg v. Software
Toolworks Inc., 16 F.3d 1073, 1075 (9th Cir. 1994). Because the district court
granted the stipulation for dismissal with prejudice of all claims against the City
and Ms. Paniagua, we may exercise jurisdiction over this appeal to the extent it
concerns the Advantage Defendants.
2
were not premised on newly discovered facts but rather new theories that could
have been asserted earlier. See Westlands Water Dist. v. Firebaugh Canal, 10 F.3d
667, 677 (9th Cir. 1993) (“[W]e have noted that the district court’s discretion is
particularly broad where the plaintiff has bypassed other opportunities to amend.”).
The district court also reasonably concluded that giving Kittel a third chance to
amend would have been unduly prejudicial to Defendants. Kittel objects to the
timing of the court’s denial but fails to point to any rule prohibiting the district
court from denying leave to amend prior to issuing a scheduling order.2
Kittel’s challenges to the district court’s summary judgment ruling also fail.
Of the thirteen claims asserted in the Second Amended Complaint, Kittel brought
only one against the Advantage Defendants. This claim stemmed from
Defendants’ failure to timely provide Kittel with copies of two functional capacity
evaluations they administered to Kittel to assess her ability to return to work.3
Kittel alleged violations of both the Health Insurance Portability and
2
Because the district court made clear that undue delay and prejudice were
sufficient bases for its denial of leave to amend, and because we conclude that was
not an abuse of discretion, we need not consider Kittel’s arguments regarding the
district court’s alternative holding that amendment would be futile.
3
Kittel brought this claim on behalf of a putative class, and she included in
her opening brief on appeal a sentence objecting to the district court’s denial of
class certification without prejudice. However, Kittel failed to develop this
argument, and it is accordingly forfeited. See Christian Legal Soc’y Chapter of
Univ. of Cal. v. Wu, 626 F.3d 483, 487-88 (9th Cir. 2010).
3
Accountability Act of 1996 (“HIPAA”), specifically 45 C.F.R. § 164.524, and
California Health & Safety Code sections 123100, 123110, and 123148(a).4 The
district court held that HIPAA does not provide an express or implied private right
of action, and Kittel does not dispute that holding on appeal.
The district court also correctly rejected Kittel’s claim under the California
Health & Safety Code. Kittel failed to establish she was entitled to damages under
California Health & Safety Code section 123120, and the injunctive relief
anticipated in the statute was mooted by Kittel’s obtaining both evaluations in the
course of the litigation. To the extent Kittel argued that California Civil Code
section 56.35 entitled her to damages for a violation of section 123120, any error
by the district court in failing to expressly address this was harmless because the
argument fails. Section 56.35 provides for compensatory and punitive damages
when a patient’s medical information has been “used or disclosed” in violation of
certain other Civil Code provisions, including section 56.10. Cal. Civil Code
§ 56.35. In context, it appears “used or disclosed” means any damages must flow
from an improper release of records, not the sort of improper nondisclosure alleged
4
Kittel moves for judicial notice of select provisions of HIPAA. We deny
the motion, as it concerns only legislative facts for which “[j]udicial notice . . . is
unnecessary.” Von Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d
954, 960 (9th Cir. 2010). We are free to consult this material to the extent we find
it useful. See Owino v. Holder, 771 F.3d 527, 534 n.4 (9th Cir. 2014).
4
by Kittel. This reading aligns with the broader purpose of the Confidentiality of
Medical Information Act, California Civil Code section 56 et seq., which targets
wrongful disclosure. See Brown v. Mortensen, 253 P.3d 522, 533 (Cal. 2011).
Lastly, the district court did not abuse its discretion by denying attorney’s
fees under Health and Safety Code section 123120. Kittel herself advocated that
fees be evaluated under a catalyst theory. Applying the catalyst framework, the
district court reasonably concluded that Kittel’s request for fees failed because she
had not attempted to settle or otherwise avoid the lawsuit beforehand. See Tipton-
Whittingham v. City of Los Angeles, 101 P.3d 174, 177 (Cal. 2004).
AFFIRMED.
5