Filed 8/28/14 Murillo v. Citrus College CA2/3
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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publication or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION THREE




RICARDO MURILLO,                                                           B248201

         Plaintiff and Appellant,                                          (Los Angeles County
                                                                           Super. Ct. No. KC062036)
         v.

CITRUS COLLEGE et al.,

         Defendants and Respondents.




         APPEAL from a judgment of the Superior Court of Los Angeles County,

Dan T. Oki, Judge. Reversed and remanded.

         Center for Disability Access and Russell Handy for Plaintiff and Appellant.

         Walsh & Associates and Dennis J. Walsh for Defendants and Respondents.



                            _______________________________________
       The plaintiff Ricardo Murillo appeals a final judgment in favor of the defendants

Citrus College and Citrus Community College District, following the trial court’s order

granting summary adjudication of the plaintiff’s cause of action for violation of the

American Disabilities Act (ADA). We reverse.

                  FACTUAL AND PROCEDURAL BACKGROUND

       The plaintiff, who is a quadriplegic individual, has been a student at the

defendant Citrus College since the fall of 2008. In September 2008, the plaintiff

experienced symptoms of autonomic dysreflexia1 and asked a nurse at the student health

center on campus (Health Center) to help him take three medications by lifting the pills

to his mouth. The Health Center’s staff would not provide this assistance and explained

to the plaintiff that it was their policy not to administer medications to students.

       On September 1, 2011, the plaintiff filed a complaint against the defendants for

violations of the ADA, the Unruh Civil Rights Act, and the California Disabled Person

Act. On November 18, 2011, the plaintiff filed a first amended complaint asserting the

same causes of action and alleging that, as a quadriplegic individual, “[h]e needs to take

medication during the day, while at school . . . [but] cannot get the medication into his




1
       We take judicial notice that autonomic dysreflexia is a syndrome common in
people with certain spinal cord injuries in which there is a sudden onset of excessively
high blood pressure.


                                              2
mouth,” and that “[he] has asked the defendant for minor assistance in doing this and

been refused.”2

       On December 16, 2011, the defendants filed a motion to strike portions of the

first amended complaint. On January 25, 2012, the trial court denied the motion,

however, the trial court did not provide a time within which the defendants were to

answer the complaint. No answer was filed.

       On November 2, 2012, the defendants moved for “summary adjudication of

issues” with respect to the following: “Plaintiff Cannot Establish That Denying

Assistance with Medication is Discrimination[,]” and “Requiring The Student Health

Center To Provide Assistance with Medication Is Not a Reasonable Modification of

Health Center’s Services[.]” The defendants argued that they had not discriminated

against the plaintiff because the Health Center does not assist any student with taking

his or her medication. The defendants also argued that assisting the plaintiff with his

medication would amount to a “fundamental alteration” of the Health Center’s services.

       In support of the motion, the defendants submitted evidence that: (1) the Health

Center provides “short-term acute episodic care” such as the “treatment of acute

illness,” immunizations, and “blood pressure and weight checks”; (2) the Health Center

does not “treat or manage chronic diseases” such as quadriplegia; (3) the Health Center

does not act as a first responder in the event of an emergency because its staff is not


2
       The plaintiff also asserted claims based on the defendants’ alleged failure to
provide adequate access to the Health Center to persons with disabilities, however,
those claims are not subjects of this appeal.


                                             3
available at all times during a school day; (4) the Health Center does not provide

“specialized service or care for any student”; and (5) the Health Center’s policy is “not

to assist any student with taking medications.”

       In opposition, the plaintiff argued that the Health Center should provide the

plaintiff with occasional assistance with taking his medication as a reasonable

modification to their general policy of not assisting students with medications. The

plaintiff presented evidence that (1) “typically, [he] can take [his] medications outside

of school hours[,] [b]ut every now and then, I need to take medication during school

hours” including when he “feel[s] the rising symptoms of possible autonomic

dysreflexia,” and (2) under those circumstances, he “need[s] minor physical assistance

in getting the pills to [his] mouth.”

       The court granted the motion with respect to the two issues referenced above

and, in its analysis, addressed only the plaintiff’s cause of action for violation of the

ADA. The court found that the defendants were “under no duty to administer

medication to a disabled student as a ‘reasonable accommodation’ . . . under the ADA.”

The trial court entered a stipulated judgment in favor of the defendants. The plaintiff

timely appealed.

                                        CONTENTIONS

       The plaintiff contends that the Health Center discriminated against him because

assisting him with lifting pills to his mouth was a reasonable modification to the Health

Center’s general policy of not administering medications to students.




                                              4
                                      DISCUSSION

        1.    Summary Adjudication

        “A party may move for summary adjudication as to one or more causes of action

within an action, one or more affirmative defenses, one or more claims for damages, or

one or more issues of duty, if that party contends that the cause of action has no merit or

that there is no affirmative defense thereto, or that there is no merit to an affirmative

defense as to any cause of action, or both, or that there is no merit to a claim for

damages, as specified in Section 3294 of the Civil Code, or that one or more defendants

either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary

adjudication shall be granted only if it completely disposes of a cause of action, an

affirmative defense, a claim for damages, or an issue of duty.” (Code of Civ. Proc.,

§ 437c, subd. (f)(1).)

        “Summary adjudication of a cause of action is appropriate only if there is no

triable issue of material fact as to that cause of action and the moving party is entitled to

judgment on the cause of action as a matter of law. [Citation.]” .] (Burch v. Superior

Court (2014) 223 Cal.App.4th 1411, 1416.) We review an order granting or denying

summary adjudication de novo. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th

826, 860.) In our review, we “liberally constru[e] the evidence in support of the party

opposing summary judgment and resolv[e] doubts concerning the evidence in favor of

that party. [Citation.]” (Miller v. Department of Corrections (2005) 36 Cal.4th 446,

460.)




                                              5
       2.     The Defendants Were Entitled to Move For Summary Adjudication
              Before Filing An Answer

       We first address the defendants’ failure to file a pleading in this case. When

a motion to strike a complaint is denied, the court shall allow the defendant time to file

an answer. (Code of Civ. Proc., § 472a, subd. (d).) No default may be taken against the

defendant during the time allowed by the court. (Code of Civ. Proc., § 586,

subd. (a)(2).) Here, after denying the motion to strike, the trial court did not provide

any time period within which the defendants had to file their answer, therefore, although

the defendants failed to file an answer, they were not in default.

       In addition, a defendant may move for summary judgment even if it has not yet

filed an answer. (Code of Civ. Proc., § 437c, subd. (a).) Accordingly, here, it was

permissible for the defendants to file a motion for summary adjudication prior to an

answer. However, the defendants were not entitled to move for summary adjudication

of any affirmative defense to the complaint as no affirmative defenses had been alleged.

(Nieto v. Blue Shield of California Life & Health Ins. Co. (2010) 181 Cal.App.4th 60,

74 [“the pleadings determine the scope of relevant issues on a summary judgment

motion”.)

       3.     Summary Adjudication of the First Cause of Action Was Improper

       A party may generally only move for summary adjudication of “one or more

causes of action within an action, one or more affirmative defenses, one or more claims




                                             6
for damages, or one or more issues of duty.”3 (Code of Civ. Proc. § 437c.) Here,

although the defendants improperly moved for summary adjudication of certain issues

instead of causes of action, we deem the trial court to have granted summary

adjudication as to the first cause of action for violation of the ADA as this is the only

cause of action addressed in the order and it was disposed of by the court’s ruling.

       The ADA governs discrimination in employment, public services, and public

accommodations. (42 U.S.C. §§ 12111, et seq.) Title II of the ADA provides that “no

qualified individual with a disability shall, by reason of such disability, be excluded

from participation in or be denied the benefits of the services, programs, or activities of

a public entity, or be subjected to discrimination by any such entity.” (42 U.S.C.

§ 12132.)

       “ ‘To state a claim of disability discrimination under Title II [of the ADA], the

plaintiff must allege four elements: (1) the plaintiff is an individual with a disability;

(2) the plaintiff is otherwise qualified to participate in or receive the benefit of some

public entity’s services, programs, or activities; (3) the plaintiff was either excluded

from participation in or denied the benefits of the public entity’s services, programs, or

activities, or was otherwise discriminated against by the public entity; and (4) such

exclusion, denial of benefits, or discrimination was by reason of the plaintiff’s

disability.’ [Citation.]” (In re M.S. (2009) 174 Cal.App.4th 1241, 1252.) “A public


3
        The exception to this rule is set forth in subdivision (s) of Code of Civil
Procedure, section 437c: “a party may move for summary adjudication of a legal
issue . . . only upon the stipulation of the parties . . . . ” (Emphasis added.)


                                              7
entity shall make reasonable modifications in policies, practices, or procedures when the

modifications are necessary to avoid discrimination on the basis of disability, unless the

public entity can demonstrate that making the modifications would fundamentally alter

the nature of the service, program, or activity.” (28 C.F.R. § 35.130, subd. (b)(7).)

       “[T]he determination of what constitutes [a] reasonable modification is highly

fact-specific, requiring case-by-case inquiry.” (Crowder v. Kitagawa (9th Cir. 1996)

81 F.3d 1480, 1486; see also Wong v. Regents of University of California

(9th Cir. 1999) 192 F.3d 807, 818 [“Because the issue of reasonableness depends on the

individual circumstances of each case, this determination requires a fact-specific,

individualized analysis of the disabled individual’s circumstances and the [possible]

accommodations . . . . ”]) “ ‘[M]ere[] speculat[ion] that a suggested accommodation is

not feasible’ falls short of the ‘reasonable accommodation’ requirement; the Acts create

‘a duty to “gather sufficient information from the [disabled individual] and qualified

experts as needed to determine what accommodations are necessary to [accommodate

the individual].” ’ [Citation.]” (Wong, supra, 192 F.3d at p. 818.)

       Here, the plaintiff contends that the Health Center discriminated against him by

refusing to assist him with his medications because providing such assistance to him

was a reasonable modification to the Health Center’s general policy of not

administering medication to students. The defendants argue that the proposed




                                            8
modification is unreasonable4 because it required a level of staff assistance that the

Health Center could not provide.

       The defendants provided in their separate statement that “the [H]ealth [C]enter’s

staff of medical professionals . . . are not available at all times during the school day.”

The supporting evidence for this fact was a document describing the services provided

by the Health Center which listed its hours as “Monday-Thursday 8:30 AM to 4:30 PM”

and “Friday - 8:00 AM to 12 Noon.” There was no evidence provided as when the

“school day” began and ended such that the court could establish whether the Health

Center was, in fact, not open during times when the students were on campus.

       The separate statement also provided that a “medical professional may not

always be present at all hours of the school day.” The supporting evidence for this fact

was a statement by the Health Center’s “head nurse” that “the health center does not

have the staffing to ensure that a medical professional will be present during the school

day. . . . ” However, this individual also stated that she worked full-time at the Health

Center. In addition, as stated above, there was no evidence as to what hours comprised


4
        The defendants also argue that the modification would amount to a “fundamental
alteration” of the Health Center’s services. Whether an accommodation fundamentally
alters a service is an affirmative defense under the ADA. (Lentini v. Calif. Center for
the Arts (9th Cir. 2004) 370 F.3d 837, 845.) Here, the defendants did not assert such
a defense as they never filed an answer, and, therefore, the defense was not a proper
ground upon which the defendants could move for summary adjudication. Accordingly,
we decline to address this argument. We also note that “whether an accommodation
fundamentally alters [a program] is an intensively fact-based inquiry” generally
inappropriate for summary judgment. (Martin v. PGA Tour, Inc. (9th Cir. 2000)
204 F.3d 994, 1001; see also Chalk v. U.S. Dist. Court Cent. Dist. Of California
(9th Cir. 1988) 840 F.2d 701, 705.)


                                              9
a “school day.” This evidence was insufficient to establish that the Health Center did

not have a medical professional on staff at all times.

       Furthermore, there were triable issues of fact as to whether the plaintiff’s

proposed accommodation  assistance with lifting a pill to his mouth  required

a medical professional’s assistance. In fact, the defendants, in their separate statement,

stated that the plaintiff was told, when he asked the Health Center to assist him with

taking his medication, that “he could inquire with the [college’s Disabled Students

Programs and Services (DSP&S)] department.” The alleged supporting evidence for

this statement does not show that the plaintiff was ever told this.5

       The defendants also contend that the proposed modification was unreasonable

because it would require the Health Center to assist every student with every kind of

medication. This argument ignores the fact that the plaintiff is seeking an

“accommodation” and not a change to the Health Center’s general policies with respect

to other students. “Discrimination may be shown precisely where the defendant treated

plaintiff the same as everyone around her, despite her need for reasonable

accommodation.” (Dunlap v. Assn. of Bay Area Governments (N.D. Cal. 1998)

996 F.Supp. 962, 966.) Accordingly, “a person with a disability may be the victim of

discrimination precisely because she did not receive disparate treatment when she

needed accommodation.” (Presta v. Peninsula Corridor Joint Powers Bd. (N.D. Cal.

1998) 16 F.Supp.2d 1134, 1136.) The defendants’ argument that the requested

5
       However, if the DSP&S department could assist the plaintiff with taking pills, it
does imply that a medical professional is not necessary to perform such an act.


                                            10
accommodation would require that they change their services with regard to every

student is not supported by the ADA, and it is unclear on what other ground the

defendants believe they would need to provide every student with this service.

       The defendants also argue that the proposed accommodation is not reasonable

because there are risks involved in administering medications that were prescribed by

another doctor, namely, that the wrong medication, wrong dosage, or wrong

combination of medications could be administered. The defendants are entitled, under

the ADA’s implementing regulations, to “impose legitimate safety requirements

necessary for the safe operation of its services, programs, or activities[,]” so long as

such “safety requirements are based on actual risks, not mere speculation, stereotypes,

or generalizations about individuals with disabilities.” (28 C.F.R. 35.130(h).)

However, here, there are triable issues of fact as to whether the defendants’ safety

concerns could be alleviated by giving the Health Center copies of the plaintiff’s

prescriptions or requiring the plaintiff to execute a waiver with respect to claims that

could arise as a result of the Health Center’s assisting with administering his

medication.

       Accordingly, the evidence demonstrated that there were triable issues of fact as

to whether the Health Center discriminated against the plaintiff by refusing to provide

him with a reasonable accommodation. Therefore, the trial court erred in granting

summary adjudication of the cause of action for violation of the ADA.




                                             11
                                   DISPOSITION

      The judgment is reversed and the matter is remanded with directions for the trial

court to vacate its order granting summary adjudication and to enter a new order

denying summary adjudication. The plaintiff is awarded his costs on appeal.



      NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                                    KLEIN, P. J.

WE CONCUR:




      KITCHING, J.





       Due to the unavailability of the third member of the panel which was assigned to
hear this matter, this opinion is being filed with the concurrence of the two remaining
members of the panel. (Cal. Const., art. VI, § 3 [“Concurrence of 2 judges present at
the argument is necessary for a judgment”]; see, e.g., People v. Castellano (1978)
79 Cal.App.3d 844, 862.)


                                          12
