Stiner v. Brookdale Senior Living, Inc.

665 F.Supp.3d 1150

Stacia STINER, et al., Plaintiffs, v. BROOKDALE SENIOR LIVING, INC., et al., Defendants.

Case No. 17-cv-03962-HSG

United States District Court, N.D. California

Signed March 30, 2023

Benjamin Joseph Bien-Kahn, Amy Xu, Gay Crosthwait Grunfeld, Jenny Snay Yelin, Rosen Bien Galvan and Grunfeld LLP, San Francisco, CA, Brian S. Umpierre, Kathryn Ann Stebner, Stebner Gertler Guadagni & Kawamoto, San Francisco, CA, Guy Burton Wallace, Mark T. Johnson, Travis C. Close, Jennifer Bybee, Rachel Lauren Steyer, Schneider Wallace Cottrell Konecky Wotkyns LLP, Emeryville, CA, David Theodore Marks, Pro Hac Vice, Jacques Gaston Balette, Pro Hac Vice, Jason Neil Young, Pro Hac Vice, Marks, Balette, Giessel, Young, PLLC, Houston, TX, for Plaintiff Stacia Stiner.

Guy Burton Wallace, Travis C. Close, Mark T. Johnson, Rachel Lauren Steyer, Schneider Wallace Cottrell Konecky Wotkyns LLP, Emeryville, CA, Amy Xu, Benjamin Joseph Bien-Kahn, Gay Crosthwait Grunfeld, Jenny Snay Yelin, Rosen Bien Galvan Grunfeld LLP, San Francisco, CA, Brian S. Umpierre, Kathryn Ann Stebner, Stebner Gertler Guadagni & Kawamoto, San Francisco, CA, David Theodore Marks, Pro Hac Vice, Jacques Gaston Balette, Pro Hac Vice, Jason Neil Young, Pro Hac Vice, Marks, Balette, Giessel, Young, PLLC, Houston, TX, for Plaintiff Loresia Vallette.

Gay Crosthwait Grunfeld, Amy Xu, Benjamin Joseph Bien-Kahn, Jenny Snay Yelin, Rosen Bien Galvan & Grunfeld, LLP, San Francisco, CA, Brian S. Umpierre, Kathryn Ann Stebner, Stebner Gertler Guadagni & Kawamoto, San Francisco, CA, Guy Burton Wallace, Travis C. Close, Mark T. Johnson, Rachel Lauren Steyer, Schneider Wallace Cottrell Konecky Wotkyns LLP, Emeryville, CA, David Theodore Marks, Pro Hac Vice, Jacques Gaston Balette, Pro Hac Vice, Jason Neil Young, Pro Hac Vice, Marks, Balette, Giessel, Young, PLLC, Houston, TX, for Plaintiffs Heather Fisher, Patricia Lindstrom, Arthur Lindstrom, Ralph Schmidt, Michele Lytle, Bernie Jestrabek-Hart.

Guy Burton Wallace, Mark T. Johnson, Rachel Lauren Steyer, Schneider Wallace Cottrell Konecky Wotkyns LLP, Emeryville, CA, Amy Xu, Benjamin Joseph Bien-Kahn, Gay Crosthwait Grunfeld, Jenny Snay Yelin, Rosen Bien Galvan Grunfeld LLP, San Francisco, CA, Brian S. Umpierre, Kathryn Ann Stebner, Stebner Gertler Guadagni & Kawamoto, San Francisco, CA, David Theodore Marks, Pro Hac Vice, Jacques Gaston Balette, Pro Hac Vice, Jason Neil Young, Pro Hac Vice, Marks, Balette, Giessel, Young, PLLC, Houston, TX, for Plaintiff Jeanette Algarme.

Guy Burton Wallace, Mark T. Johnson, Rachel Lauren Steyer, Travis C. Close, Schneider Wallace Cottrell Konecky Wotkyns LLP, Emeryville, CA, Amy Xu, Benjamin Joseph Bien-Kahn, Gay Crosthwait Grunfeld, Jenny Snay Yelin, Rosen Bien Galvan Grunfeld LLP, San Francisco, CA, Brian S. Umpierre, Kathryn Ann Stebner, Stebner Gertler Guadagni & Kawamoto, San Francisco, CA, David Theodore Marks, Pro Hac Vice, Jacques Gaston Balette, Pro Hac Vice, Jason Neil Young, Pro Hac Vice, Marks, Balette, Giessel, Young, PLLC, Houston, TX, for Plaintiff Ralph Carlson.

Christopher Joseph Truxler, Kristina M. Launey, Seyfarth Shaw LLP, Sacramento, CA, David J. Rowland, Pro Hac Vice, Michael David Jacobsen, Pro Hac Vice, Seyfarth Shaw LLP, Chicago, IL, Gerald L. Maatman, Jr., Pro Hac Vice, Jennifer A. Riley, Pro Hac Vice, Duane Morris LLP, Chicago, IL, David J. Todd, Pro Hac Vice, John Alfred Bertino, Pro Hac Vice, Kristen Bennett, Pro Hac Vice, Thomas Lee Wilson, Pro Hac Vice, Moore & Lee, LLP, McLean, VA, Erica W. Rutner, Pro Hac Vice, Moore & Lee, LLP, Fort Lauderdale, FL, Justin Taylor Curley, Matthew A. Goodin, Ryan Ashley McCoy, Seyfarth Shaw LLP, San Francisco, CA, for Defendants.

REDACTED ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTION FOR CLASS CERTIFICATION AND GRANTING AND DENYING DAUBERT MOTIONS AND MOTIONS TO STRIKE

Re: Dkt. Nos. 278, 346, 347, 348, 350, 353, 355, 504, 510, 511, 525

HAYWOOD S. GILLIAM, JR., United States District Judge

This is a putative class action lawsuit in which Plaintiffs allege that Defendants Brookdale Senior Living, Inc. and Brookdale Senior Living Communities, Inc. (collectively, "Brookdale" or "Defendants") operate their facilities in California in a manner that violates federal and state disability laws. Before the Court is Plaintiffs' motion to certify three different classes on several different theories. Dkt. No. 278 ("Mot."). Brookdale opposes that motion. See Dkt. Nos. 441 Ex. A ("Opp.")¹ and 506 ("Reply"). The Court held a hearing on the motion. For the reasons discussed below, the Court GRANTS IN PART AND DENIES IN PART Plaintiffs' motion. Also pending before the Court are several evidentiary motions, discussed in more detail below.

I. BACKGROUND

A. Factual Allegations

Defendant Brookdale Senior Living Inc. is a for-profit corporation that maintains its principal place of business in Brentwood, Tennessee. TAC ¶ 24. Brookdale is the largest provider of assisted living for senior citizens and persons with disabilities in the nation and has the largest number of assisted living facility residents within the state of California. Id. ¶ 27. Assisted living facilities offer room, board, and daily assistance for seniors and persons with disabilities with certain activities of daily living (or "ADLs"), such as preparing meals, shopping, transportation, preparing and taking medication, housekeeping, laundry, bathing, toileting, grooming, and dressing. Id. ¶ 28. Plaintiffs allege that there are more than 5,000 residents in Brookdale's eighty-nine facilities in California (the "Facilities"). Id. ¶ 27.

Among those residents are the plaintiffs in this case. Plaintiffs are elderly or dependent individuals living in California who have significant care needs and disabilities and require assistance with activities of daily living. Id. ¶ 2. According to Plaintiffs, they chose to stay in a Brookdale facility because they believed Brookdale's promises to provide the care and assistance that would allow them to age with dignity. Id. But they allege that they have instead encountered a system of understaffed facilities that fails to consistently provide a basic level of care. Id. Specifically, Plaintiffs allege that Brookdale's facilities are not accessible by people with disabilities, and that its policies regarding transportation, emergency evacuation, and staffing prevent these residents from fully accessing and enjoying the Facilities. Id. ¶¶ 3-4. They also allege that Brookdale conceals material facts about and misrepresents the quality of care at the Facilities, in violation of California's consumer protection statutes. Id. ¶ 6.

Plaintiffs accordingly brought this lawsuit, in which they seek to represent the following three classes, as amended in their motion for class certification:

1. All persons with disabilities who use wheelchairs, scooters, or other mobility aids or who have vision disabilities and who reside or have resided at a residential care facility for the elderly located in California and owned, operated and/or managed by Brookdale during the three years prior to the filing of the Complaint herein through the conclusion of this action, including their successors-in-interest if deceased, excluding any persons who are subject to arbitration.

2. All persons with disabilities who require assistance with activities of daily living and who reside or have resided at a residential care facility for the elderly located in California and owned, operated and/or managed by Brookdale during the three years prior to the filing of the Complaint herein through the conclusion of this action, including their successors-in-interest if deceased, excluding any persons who are subject to arbitration.

3. All persons who resided or reside at one of the residential care facilities for the elderly located in California and owned, operated and/or managed by Brookdale during the period from May 16, 2015 through the conclusion of this action, and who contracted with Brookdale or another assisted living facility for services for which Brookdale was paid money, including their successors-in-interest if deceased, excluding any persons who are subject to arbitration.

Mot. at 13 (emphasis in original).

i. Mobility and Vision Impaired Class

The Mobility and Vision Impaired Class would consist of all persons with disabilities who resided at a Brookdale residential care facility in California during the class period and who have visual disabilities or use wheelchairs, scooters, canes, or other mobility aids. TAC ¶ 197.

Plaintiffs' theory underlying this class is that Brookdale has a corporate policy and practice of violating the ADA and the Unruh Act by rejecting the applicability of those laws to its facilities and operating its facilities as though those laws do not exist. Mot. at 11.² Plaintiffs allege that they have inspected fifty-two (52) of Brookdale's facilities and have found them all to be filled with various access barriers that violate the ADA and the Unruh Act. Id. at 12. They also allege that Brookdale has corporate policies regarding transportation and emergency evacuation services that violate the ADA and the Unruh Act. Id.

ii. Disabilities Class

The Disabilities Class would consist of all persons with disabilities who resided at a Brookdale residential care facility for the elderly in California during the class period and who require assistance with activities of daily living. TAC ¶ 197.

Plaintiffs' theory underlying this class is that Brookdale has violated the ADA and the Unruh Act by systemically understaffing the Facilities. Mot. at 12. As a result, Plaintiffs allege, residents are routinely denied essential services regarding their activities of daily living, such as assistance with toileting, dressing, grooming, bathing, ambulation, escorting, medication administration, and housekeeping. Id. They also allege that Brookdale has refused their requests to make a reasonable modification in policy and practice to provide...