Brookdale Senior Living claimed a partial victory Friday as the U.S. Court of Appeals for the Ninth Circuit upheld a previous ruling by U.S. District Court for Northern California’s in part, and reversed another decision, in a lawsuit accusing the country’s largest senior living company of understaffing and violating the Americans with Disabilities Act in California.

The appellate court upheld the district court’s ruling denying Brentwood, TN-based Brookdale’s motion to compel two former residents to arbitrate their claims outside of federal court, allowing them to move forward as representatives of the class.

The appeals court upheld the district court’s denial of Brookdale’s motion to compel arbitration for Helen Carlson’s claims because her earlier agreement to arbitrate was superseded by her most recent agreement’s opt-out. Carlson is one of the original plaintiffs in the case. Her daughter signed a new residency agreement and opted out of the arbitration provision when Carlson moved from one part of the continuing care retirement community to the memory case section.

In the other case, Lawrence Quinlan’s son, who did not have power of attorney, signed a residency agreement and did not opt out of the arbitration provision. The appellate court upheld the district court’s decision denying Brookdale’s motion to compel Quinlan to arbitrate  his ADA and Unruh Civil Rights Act claims.

The residents allege that Brookdale violated the ADA and Unruh Act by not addressing multiple barriers in their rooms and throughout the communities, restricting the number of people in wheelchairs who can participate in weekly outings, and not providing a sufficient number of caregivers for residents who have cognitive and other impairments. 

The appellate court, however, reversed the district court’s denial of Brookdale’s motion to compel arbitration regarding Quinlan’s Consumer Legal Remedies Act, the California Business and Professions Code and elder financial abuse claims.  

Quinlan’s complaint alleges that Brookdale raised the rate it was charging for personal care services — such as assistance with laundry, dressing and showering — even though it appeared he was not receiving those services. He stayed at Brookdale Sunwest in Hemet, CA, for short-term respite care several times between 2013 and 2015, and lived there full-time from late 2015 to 2017. 

“We are pleased that the Ninth Circuit affirmed, for the most part, the district court decision on arbitration,” Gay Grunfeld, an attorney for Rosen Bien Galvan & Grunfeld LLC, told McKnight’s Senior Living. “The Ninth Circuit’s ruling allows Helen Carlson’s family to continue to pursue her claims against Brookdale in the class action, and allows Mr. Quinlan to continue to pursue his claims against Brookdale for violations of the Americans with Disabilities Act and the Unruh Act in the class action.”

Brookdale said the company will continue to defend itself “vigorously” against the legal action, which it believes does not have merit.

“We were pleased with the court’s overall decision to enforce arbitration,” said Heather Hunter, a senior public relations specialist at Brookdale.

The lawsuit filed in 2017 was thought to be the first class-action lawsuit against an assisted living operator to be brought under the ADA. Potential damages could exceed $45 million, as the lawsuit is seeking a minimum of $9,000 for each affected resident and more than 5,000 residents of Brookdale communities in California could become part of the class.

The lawsuit, since amended, now involves seven plaintiffs — current or former assisted living or memory care residents of five Brookdale communities in California, or their representatives. 

A federal judge previously ruled that the ADA applies to Brookdale Senior Living’s assisted living communities in California. Brookdale had argued its assisted living communities are similar to private apartment complexes that would not fall under the ADA, but the court ruled that Brookdale’s communities are public accommodations. 

The opening pleadings in support of the class certification motion are due Nov. 20. No trial date has been set.

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