McCullough v. California Department of Developmental Services ( 2020 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 LUGENE MCCULLOUGH, et al., Case No. 20-cv-02958-SI 8 Plaintiffs, ORDER DENYING MOTION TO 9 v. DISMISS 10 CALIFORNIA DEPARTMENT OF Re: Dkt. No. 23 DEVELOPMENTAL SERVICES, et al., 11 Defendants. 12 13 On September 18, 2020, the Court held oral argument on the motion to dismiss the First 14 Amended Complaint (FAC) brought by the California Department of Developmental Services 15 (“DDS”) and Nancy Bargmann (collectively, “Defendants”). Dkt. Nos. 23 (Motion to Dismiss) and 16 35 (Minutes re Hearing on Motion to Dismiss). Having considered the arguments made during the 17 hearing as well as those submitted in their papers, the Court hereby DENIES the motion in its 18 entirety. 19 Defendants argue plaintiffs’ complaint must be dismissed because the FAC fails to establish 20 standing and fails as a matter of law. Specifically, defendants argue the FAC does not establish the 21 traceability or redressability requirements of standing and fails as a matter of law because 22 “Plaintiffs’ allegations of harm [are] predicated on actions of third parties and DDS’s lack of 23 policies, [and] do not allege that DDS’ direct actions have discriminated against Plaintiffs based 24 upon their disabilities.” Dkt. No. 23 at 81. 25 The Court disagrees. By statute, the DDS is charged with ensuring “the regional centers 26 operate in compliance with federal and state law and regulation,” including by “tak[ing] all 27 1 necessary actions” to secure compliance. Cal. Welf. & Inst. Code § 4434 (a), (b). Moreover, “[i]f 2 || there are identified gaps in the system of services and supports consumers for whom no provider 3 || will provide services,” DDS is authorized to provide those services and supports directly. § 4648(g); 4 || □□□ 435. When DDS finds a regional center “has violated this requirement, or whenever it appears 5 that any regional center has engaged in or is about to engage in any act or practice constituting a 6 || violation of any provision of [the Lanterman Act] or any regulation adopted thereunder, the 7 department shall promptly take the appropriate steps necessary to ensure compliance with the 8 || law[.]” § 4434(c). The director of DDS also “may issue directives to the regional centers as the 9 director deems necessary to protect consumer rights, health, safety, or welfare, or in accordance 10 || with Section 4434.” § 4639.6. 11 While defendants cite ARC v. Department of Developmental Services, 38 Cal.3d 384 (1985) a 12 and Bouslog v. Care Options Mgmt. Plans & Supportive Servs., LLC, No. C 20-00756 WHA, 2020 13 WL 2306487 (N.D. Cal. May 9, 2020) in support of their arguments regarding the limited nature of 14 || DDS’s reach, the Court finds both cases distinguishable.” 15 As such, defendants’ motion to dismiss is hereby DENIED.? 16 = 17 IT IS SO ORDERED. Zz 18 Dated: October 2, 2020 Site WU tee 19 SUSAN ILLSTON 20 United States District Judge 21 22 23 > In ARC, regional centers sued DDS after DDS issued spending directives that, in effect, 24 || reduced client’s “services by category, without regard to the client’s [individual program].” 38 Cal.3d 384, 390 (1985). That case did not touch Title II or Section 504 whatsoever. Further, the 25 Bouslog case involved a single disabled woman (distinct from a class) who was abused and neglected by her caretaker. There, the Court found DDS did not discriminate against that plaintiff 26 || on the basis of her disability. The facts as alleged in the instant complaint are readily distinguishable. Plaintiffs in the instant action allege DDS’s failure to ensure “effective 07 communication and equal access to the benefits of the [] program results in discrimination based on and because of [] deafness.” Dkt. No. 27 at 32 (Opposition) (emphasis added). 28 3 Defendant’s request for judicial notice is granted.