Case4:09-cv-02306-CW Document1 Filed05/26/09 Page1 of 25

1 STEPHEN P. BERZON (SBN 46540) SCOTT A. KRONLAND (SBN 171693)
2 STACEY M. LEYTON (SBN 203827) PEDER J. THOREEN (SBN 217081)
3 ANNE N. ARKUSH (SBN 254985) Altshuler Berzon LLP
4 177 Post Street, Suite 300 San Francisco, California 94108
5 Telephone: (415) 421-7151 Facsimile: (415) 362-8064
6 sberzon@altshulerberzon.com skronland@altshulerberzon.com
7 sleyton@altshulerberzon.com pthoreen@altshulerberzon.com
8 aarkush@altshulerberzon.com

E-filing

9 Attorneys for Plaintiffs

IO

UNITED STATES DISTRICT COURT

11

FOR THE NORTHERN DISTRICT OF CALIFORNIA

u.- .. n 9 2308 12

MIKESHA MARTINEZ, by and through her husband and next friend Carlos Martinez, LYDIA

r~v·ase V

!l.JII-----

.

13 DOMINGUEZ, ALEX BROWN, by and through )

his mother and next friend Lisa Brown, DONNA ) CLASS ACTION

14 BROWN, CHLOE LIPTON, by and through her )

conservator and next friend Julie Weissman-

) COMPLAINT FOR DECLARATORY

15 Steinbaugh, HERBERT M. MEYER, LESLIE } AND INJUNCTIVE RELIEF

GORDON, CHARLENE AYERS, WILLIE

)

16 BEATRICE SHEPPARD, and ANDY

)

MARTINEZ, on behalf of themselves and a class )

17 of those similarly situated; SERVICE

)

EMPLOYEES INTERNATIONAL UNION

)

18 UNITED HEALTHCARE WORKERS WEST; )

SERVICE EMPLOYEES INTERNATIONAL )

19 UNIONUNITEDLONG-TERMCARE

)

WORKERS; SERVICE EMPLOYEES

)

20 INTERNATIONAL UNION LOCAL 521; and )

SERVICE EMPLOYEES INTERNATIONAL )

21 UNION CALIFORNIA STATE COUNCIL,

)

,

)

22

Plaintiffs,

)

)

23

v.

)

)

24 ARNOLD SCHWARZENEGGER, Governor of )

the State of California; JOHN A. WAGNER, )

25 Director of the California Department of Social )

Services; DAVID MAXWELL-JOLLY, Director )

26 of the California Department of Health Care

)

Services; JOHN CHIANG, California State

)

27 Controller; FRESNO COUNTY; and FRESNO )

COUNTY IN-HOME SUPPORTIVE SERVICES )

28 PUBLIC AUTHORITY,

)

)

Defendants.

)

-----------------------------)

Case4:09-cv-02306-CW Document1 Filed05/26/09 Page2 of 25

1

INTRODUCTION

2

1. This case challenges California Welfare and Institutions Code Section 12306.1(d)(6)

3 ("Section 12306.1(d)(6)"), which provides for the reduction of the wages and benefits of In-Home

4 Supportive Services ("ruSS") providers. Under Section 12306.1(d)(6), the maximum hourly wage and

5 benefit rate that the State will help fund would be reduced by two dollars per hour, effective July 1,

6 2009. Plaintiffs seek a declaratory judgment that Section 12306.1(d)(6) is unlawful and an injunction to

7 prevent Defendants from implementing this provision. Section 12306.1(d)(6) would cause severe and

8 irreparable harm to tens of thousands of Californians, pushing already low-wage russ providers into

9 poverty and forcing the institutionalization of, or otherwise harming, some IHSS recipients who will be

10 unable to obtain in-home care.

11

2. The russ program presently provides critical assistance to hundreds of thousands of low-

12 income seniors and persons with disabilities, primarily as part of the state's Medicaid program ("Medi-

13 Cal"). Elderly andlor disabled individuals who are unable to perform certain basic tasks of daily living -

14 for example, bathing, dressing, feeding themselves, or taking necessary medications - are provided with

15 in-home assistance that permits them to remain out of institutional care. With the help of russ

16 providers, these russ consumers are able to remain safely in their homes, at a cost to the State of far less

17 than the cost of institutional care.

18

3. russ providers' wages and benefits are funded through a combination of federal, state,

19 and county funds. The State contributes a percentage of wages and benefits up to a maximum amount

20 established bystate law. In enacting Section 12306.1(d)(6), the California Legislature reduced the

21 maximum amount of the wages and benefits of russ providers for which the State will share costs by

22 over 15%, to $9.50 per hour in wages and $.60 per hour in benefits, effective July 1, 2009. The State

.23 then notified counties to submit notices of their plans to reduce wages and benefits to these levels for the

24 reduction to take effect by that date. In many counties that currently pay wages andlor benefits above the

25 newly reduced maximum amount, Section 12306. 1(d)(6) will cause russ providers' wages and benefits

26 to drop significantly from their current levels. The consequences for many russ consumers in these

27 counties would be dire, because their providers would be unable or unwilling to continue working at the

28

Complaint

Case4:09-cv-02306-CW Document1 Filed05/26/09 Page3 of 25

1 reduced wage rate. Many consumers would be unable to hire russ providers and would either be 2 deprived of critical russ 'services or be forced into nursing homes.

3

4. Plaintiffs have filed this action because Section 12306.1(d)(6) is preempted by the federal

4 Medicaid Act, 42 U.S.C. §1396a(a)(30)(A). Prior to enacting Section 12306.1 (d)(6), the State failed to

5 give the required consideration to the impact ofthe statute on the efficiency, economy, and quality of

6 care ofMedi-Cal services, and on access to Medi-Cal services.

7

5. In addition, Section 12306.1(d)(6) is preempted by the federal Medicaid Act, 42 U.S.C.

8 §1396a(a)(30)(A), because the reduced russ provider wages and benefits that would result from its

9 implementation would produce Medi-Cal services that are not consistent with the required standards of

10 efficiency, economy, and quality of care, and would not provide sufficient access to Medi-Cal services.

11

6. Finally, implementation of Section 12306.1(d)(6) would violate the anti-discrimination

12 provisions of the Americans with Disabilities Act ("ADA"), 42 US.c. §12132, and Section 504 of the
13 Rehabilitation Act, 29 U.S.C. §794(a), by forcing many russ consumers to enter nursing homes or other

14 institutions, despite their desire and ability to remain in their homes. This action also specifically
15 challenges the reduction of the russ provider wage and benefit rates in Fresno County following the

16 adoption of Section 12306.1(d)(6) as violating these anti-discrimination provisions.

17

JURISDICTION

18

7. This action arises under:

19

(a) Title XIX of the Social Security Act, 42 US.C. §1396a(a)(30)(A);

20

(b) The Americans with Disabilities Act, 42 US.c. §12132;

21

(c) The Rehabilitation Act, 29 U.S.C. §794(a);

22

(d) The Supremacy Clause, U.S. Const., Art. VI, cl. 2; and

23

(e) 42 U.S.C. §1983.

24

8. This Court has subject matter jurisdiction under 28 U.S.C. §§ 1331 and 1343.

25

9. This Court is empowered to issue a declaratory judgment pursuant to 28 US.C. §§2201

26 and 2202.

27

VENUE

28

2

Complaint

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1

10. Venue is proper under 28 U.S.C. §1391(b) because all Defendants reside in California

2 and at least one Defendant resides in the Northern District of California, and because a substantial part

3 of the events or omissions giving rise to the claims occurred or will occur in the Northern District of

4 California, where many Plaintiffs or their members live and work.

5

INTRADISTRICT ASSIGNMENT

6

11. Pursuant to Local Rule 3-2(c)-(d), intra-district assignment to the San Francisco or

7 Oakland Division is proper because at least one Defendant resides in San Francisco County, and because

8 a substantial part of the events or omissions giving rise to the claims occurred or will occur in Alameda,

9 Contra Costa, Marin, Mendocino, Napa, San Francisco, San Mateo and Sonoma counties.

10

PAJlTIES

11

12. PlaintiffMikesha Martinez, a 29-year-old resident of Fresno County, appears in this

12 action through her husband and next friend, Carlos Martinez. Plaintiff Martinez has required round-the-

13 clock care since a diabetic coma two years ago caused serious brain injuries, and is authorized to receive

14 283 hours per month in llISS services under the Medi-Cal program. Three llISS providers shower

15 Plaintiff Martinez, clean her, feed her, provide care for her at night, and take her for walks, to the park,

16 and to doctor's appointments. After the enactment of Section 12306.1(d)(6), Fresno County announced 17 that it will reduce the wages ofllISS providers fr~m $10.25 per hour to $9.50 per hour, and it will

18 reduce the benefits from $.85 per hour to $.60 per hour, effective July 1, 2009. At least some of Plaintiff

19 Martinez's llISS providers will have to look for other work ifthese reductions take effect, and Plaintiff

20 Martinez's husband may not be able to find providers to replace them. Plaintiff Martinez's husband

21 does not know how he will provide care for his wife ifhe,is unable to replace these providers, and is

22 worried that he would have to put his wife into some form of institutional care.

23

13. Plaintiff Lydia Dominguez is an 81-year-old resident of Alameda County. She suffers

24 from osteoporosis and has problems with her eyes and with her right arm. As a result of her condition,

25 Plaintiff Dominguez has had multiple operations and at least ten significant accidents. In addition, she is

26 mostly unable to walk and she depends heavily on a walker and assistance from others. Plaintiff

27 Dominguez is authorized to receive 24 hours ofllISS services per week pursuant to the Medi-Cal

28 program for assistance with bathing, cooking, laundry, cleaning, and paying her bills. Without this

3

Complaint

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1 assistance, PlaintiffDominguez could not live on her own, and would be forced into a nursing home. If
2 the russ wages and benefits are reduced below their current level, Plaintiff Dominguez's provider will

3 be forced to look for another job. PlaintiffDominguez will not be able to find another provider to work

4 for less than this amount, and will be forced into a nursing home.

5

14. Plaintiff Alex Brown, a 16-year-old resident of Fresno County, appears in this action

6 through his mother and next friend, Lisa Brown. Plaintiff Alex Brown has Down Syndrome, and

7 requires protective supervision and assistance with tasks of daily living (including bathing, grooming,

8 dressing, and eating) in order to remain in his home. Plaintiff Alex Brown is not able to appear on his

9 own behalf to litigate this action because his developmental disability prevents him from understanding

10 the nature of the action or communicating about it with others. Lisa Brown, Plaintiff Alex Brown's next
11 friend and mother, is Piaintiff Alex Brown's sole parent and his russ provider. Ms. Brown formerly

12 worked as a food scientist but has been caring for her son full-time since 1998, and began being paid for
13 his care through russ in 2002. Ms. Brown receives $10.25 per hour for 195 hours per month of care for

14 her son through the llISS program, and her personal savings are limited to a few hundred dollars. Out of

15 concern that, if,Fresno County reduces its wages to $9.50 per hour effective July 1, 2009, as it presently

16 intends to do, she would be unable to afford her monthly mortgage payment and so would lose her home,

17 Ms. Brown has begun working a second, part-time, temporary job. She does not know how long this job

18 will last, and because her son will be out of school in a few weeks and requires round-the-clock

19 supervision to keep him safe, her job possibilities are very limited. Plaintiff Alex Brown does not have

20 any other relatives who could assume responsibility for his care or take him into their home. If Ms.

21 Brown loses her home, she will be forced to live in her car because she has no alternative housing. If

22 that happens, Ms. Brown will be forced to put her son in a community care facility or developmental

23 center. Ms. Brown is concerned about that possibility because it will limit her son's freedom and contact

24 with family members, and because there has been abuse in such facilities and her son is unable to

25 express himselfifhe is harmed.

26

15. Plaintiff Donna Brown, a 45-year-old resident of Solano County, has multiple sclerosis

27 and is paralyzed from the neck down. Plaintiff Brown is unable to perform basic tasks such as eating or
28 showering without assistance, and is authorized to receive 283 hours in russ services per month. Four

4

Complaint

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1 IHSS providers assist PlaintiffBrown with meal preparation, eating, getting out of bed, basic hygiene,

2 giving her medication, bathing, dressing, emptying her catheter, and taking her to doctor's appointments

3 and exercises. Plaintiff Brown could not live independently without their assistance. At least some of

4 PlaintiffBrown's IHSS providers would be unable to continue working for her if the IHSS wages and

5 benefits were reduced below their current level, and Plaintiff Brown believes it would be difficult for her

6 to find new IHSS providers at less than that wage rate. The quality of PlaintiffBrown's care would

7 suffer, and she worries that she might be forced into a nursing home which would deprive her of her

8 current freedom, independence, and community involvement.

9

16. Plaintiff Chloe Lipton, a 37-year-old resident of Alameda County, appears in this action

10 through her conservator and next friend, Julie Weissman-Steinbaugh. Plaintiff Lipton has multiple

11 disabilities, including cerebral palsy, visual impairment, mental retardation, and anxiety disorder. She

12 requires round-the-clock assistance to live on her own, and is authorized to receive the maximum

13 number ofIHSS hours per month pursuant to Medi-Cal as well as services from a state regional center

14 for individuals with developmental disabilities. Plaintiff Lipton is not able to appear on her own behalf

15 to litigate this action because her developmental disability prevents her from understanding the nature of
16 the action or communicating about it with others. Plaintiff Lipton has had trouble finding russ

17 providers, and if Alameda County reduces the IHSS wages and benefits, Plaintiff Lipton's current IHSS

18 providers may leave their jobs and Plaintiff Lipton may be unable to find IHSS providers who would

19 work for her. Weissman-Steinbaugh and her husband have served as conservators of Plaintiff Lipton's

20 person and estate since Plaintiff Lipton's mother died in 2002, because Plaintiff Lipton's relatives were

21 not willing to assume responsibility for her care. Both Weissman-Steinbaugh and her husband are

22 disabled, and so cannot provide Plaintiff Lipton with the care she needs in order to remain in her home.

23 If Plaintiff Lipton is unable to find IHSS providers, she may be forced to enter a nursing home, where

24 her freedom to go out in the community will be greatly restricted. This would be disastrous for Plaintiff

25 Lipton's quality oflife.

26

17. Plaintiff Herbert M. Meyer is a 78-year-old resident of Marin County. PlaintiffMeyer is

27 quadriplegic and so requires assistance with getting in and out of bed, bathing, dressing and undressing,

28 getting into his wheelchair, preparation of his meals, bowel and bladder care, cleaning his apartment, and

5

Complaint

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1 transportation to appointments. Without this assistance, Plaintiff Meyer could not live independently.

2 Plaintiff Meyer is currently authorized to receive 272 hours oflliSS services per month pursuant to

3 Medi-Cal for assistance with these tasks. Plaintiff Meyer was cared for by the same lliSS provider for

4 more than twelve years, until she died from cancer earlier in 2009. Currently Plaintiff Meyer's sonis 5 serving as his lliSS provider, but this is a temporary solution and Plaintiff Meyer's son will be unable to .

6 provide that care indefinitely. IfMarin County were to reduce the wages and benefits oflliSS providers

7 below their current rate, Plaintiff Meyer does not believe that he will be able to find an lliSS provider. 8 If that happens, Plaintiff Meyer will be forced to enter a skilled nursing facility, which will require him 9 to surrender his freedom and control over his transportation, money, and community activities. Plaintiff 10 Meyer does not believe he will receive a high quality of health care in a skilled nur~ing facility and

11 would be devastated ifhe has to enter one.

12

18. Plaintiff Leslie Gordon is a resident of Alameda County and a recipient oflliSS services.

13 Plaintiff Gordon has cerebral palsy and needs a caregiver to be present between the hours of 11 p.m. and

14 8 a.m. in case she needs to get out of bed during an emergency. She is authorized to receive 283 hours·

15 oflliSS services under the Medi-Cal program, and has five lliSS providers who provide such overnight
16 care. Plaintiff Gordon is concerned that, if Alameda County cuts the russ wages and benefits, her russ

17 providers will have to quit and she will be unable to find replacements for her lliSS providers. If this

18 happens, Plaintiff Gordon may be forced into a nursing home~

19

19. Plaintiff Charlene Ayers is a 64-year-old resident of Alameda County. She has been

20 legally blind since 1972, and her vision deteriorated significantly in January 2008. She has other health
21- issues such as diabetes and agoraphobia. Plaintiff Ayers has received russ services for over a year and

22 is authorized for 108 hours oflliSS services per month. These services include cooking, cleaning,
23 personal care, shopping, laundry, and assistance going out into the community. Plaintiff Ayers' russ 24 provider will have to look for other work if Alameda County reduces the russ wages and benefits below

25 the current rate, and Plaintiff Ayers does not believe that she will be able to find a suitable replacement
26 for less than the current wage of$11.50 per hour. IfPlaintlff Ayers cannot find a suitable russ

27 provider, she will be unable to cook, clean effectively, .or go out into the community the way she is able 28 to now. She will also have difficulty administering her medication.
6

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1

20. Plaintiff Willie Beatrice Sheppard is a 81-year-old resident of Alameda County. She

2 suffers from arthritis and has had a stroke. As a result, she cannot walk very well and needs assistance to

3 go out in the community. Although she can perform light tasks around her house, she cannot do
4 . anything difficult. Plaintiff Sheppard is authorized for 41.7 hours of russ services per month, including 5 cooking, cleaning, bathing, shopping, and mobility assistance. Plaintiff Sheppard's russ provider will 6 have to look for other· work if her wages fall below $11.50 per hour. If Plaintiff Sheppard's russ

7 provider leaves, Plaintiff Sheppard does not believe she will be able to find someone to replace her. It·

8 would be very difficult to Plaintiff Sheppard to live on her own without help, and she is afraid that she

9 would be forced to enter a nursing home. Plaintiff Sheppard used to work in a nursing home, and does

10 not believe she would receive a high quality of care if she entered one. For this reason, she wants to live

11 in her home as long as possible.

12

21. Plaintiff Andy Martinez is a 76-year-old resident of Fresno County. He suffers from

13 diabetes, and has very limited mobility due to a knee injury. As a result, he can hardly walk, and needs

14 assistance with cooking, cleaning, bathing, shopping, and personal care. Plaintiff Martinez is authorized
15 for 169 hours of russ services per month, which are performed by his wife. If Plaintiff Martinez's 16 wife's russ provider wages and benefits are reduced, they will not be able to make ends meet. As it is,

17 they are barely able to pay their bills. Plaintiff Martinez believes that they would have to move to a

18 cheaper apartment, but this would be extremely difficult because he can hardly move and his wife would

19 not be able to move them both. Plaintiff Martinez has been in rest homes before, and believes that they

20 do not provide a good quality of care. For this reason, he does not want to go to a nursing facility.

21

22. Plaintiff Service Employees International Union United Healthcare Workers West

22 ("UHW") is an unincorporated association whose members include approximately 55,000 russ workers

23 in 11 counties. PlaintiffUHW is an affiliate of the Service Employees International Union ("SEIU").

24 UHW was established to improve the wages, benefits, and working conditions of service employees,
25 including russ providers, throughout California. UHW has for years been an advocate for russ 26 consumers and quality of care. Some ofUHW's russ worker members currently earn wages of more

27 than $9.50 per hour, including those in Calaveras ($9.75 per hour), Contra Costa and Sonoma ($11.50

28 per hour), Fresno ($10.25 per hour), Marin ($11.55 per hour), Sacramento ($1 0.40 per hour), and Yolo

7

Complaint

Case4:09-cv-02306-CW Document1 Filed05/26/09 Page9 of 25

1 ($10.50 per hour) counties. In addition, some ofUHW's russ worker members currently earn benefits
2 of more than $.60 per hour. If Section 12306.1(d)(6) takes effect, the wages of members in Fresno 3 County will be reduced to $9.50 per hour and their benefits will be reduced from $.85 per hour to $.60 4 per hour, the wages of members in Contra Costa County will be reduced to $10.32 per hour, and the 5 wages and benefits of members in other counties may also be reduced. UHW's members would be 6 irreparably harmed by this reduction in wages and benefits. UHW brings this suit on behalf of its 7 members, who would have standing to sue in their own right and whose personal partiCipation in this 8 litigation is not necessary, in order to enjoin Defendants from implementing Section 12306.1(d)(6) and
9 reducing russ wages and benefits.

10

23. Plaintiff Service Employees International Union United Long-Tenn Care Workers

11 ("DLTCW") is an unincorporated association whose members include approximately 175,000 russ

12 workers in 10 counties. PlaintiffULTCW is an affiliate ofSEIU. ULTCW was established to improve
13 the wages, benefits, and working conditions of service employees, including russ providers, throughout 14 California. ULTCW has for years been an advocate for russ consumers and quality of care. Some of 15 ULTCW's russ worker members currently earn wages of more than $9.50 per hour, including those in

16 Alameda, Monterey, Napa, Santa Cruz, and Solano counties, who all earn $11.50 per hour; Mendocino

17 County, who earn $9.90 per hour; and San Benito County, who earn $10.50 per hour. In addition, some
18 ofULTCW's russ worker members currently earn benefits of more than $.60 per hour. If Section

19 12306.1(d)(6) takes effect, the wages of members in Napa County will be reduced to $10.20 per hour,

20 the wages of members in Mendocino County will be reduced to $9.64 per hour, and the wages and

21 benefits ofmembers in other counties may also be reduced. ULTCW's members will be irreparably

22 harmed by this reduction in wages and benefits. ULTCW brings this suit on behalf of its members, who

23 would have standing to sue in their own right and whose personal participation in this litigation is not
24 necessary, in order to enjoin Defendants from implementing Section 12306.1(d)(6) and reducing russ

25 wages and benefits.

26

24. Plaintiff Service Employees International Union Local 521 ("Local 521") is an

27 unincorporated association whose members include approximately 15,000 russ workers in Santa Clara

28 County and San Mateo County. Local 521 is an affiliate ofSEIU. Local 521 was established to improve

8

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1 the wages, benefits, and working conditions of service employees, including russ providers, in Central 2 Northern California. Local 521, through its predecessor unions, has long been an advocate for russ 3 consumers and quality of care. All of Local 521's russ worker members currently earn wages of more 4 than $9.50 per hour and at least some ofUHW's russ worker members currently earn benefits of more
5 than $.60 per hour. Members in Santa Clara County currently earn wages of$12.35 per hour, and 6 members.in San Mateo County currently earn wages of$I1.50 per hour. If Section 12306.1(d)(6) takes 7 effect, these members' wages and benefits stand to be reduced to below current amounts. Local 521 's 8 members will be irreparably harmed by this reduction in wages and benefits. Local 521 brings this suit

9 on behalf of its members, who would have standing to sue in their own right and whose personal

10 participation in this litigation is not necessary, in order to enjoin Defendants from implementing Section
11 12306.1(d)(6) and reducing russ wages and benefits.

12

25. Plaintiff Service Employees International Union California State Council ("California

13 State Council") is a state-wide affiliate of SEIU. More than 20 local unions representing over 700,000
14 workers belong to the California State Council. Over 87,000 of these workers are russ providers

15 earning wages of greater than $9.50 per hour, some of whom also earn benefits of greater than $.60 per

16 hour. The California State Council advocates for the interests of its affiliated local unions and their

17 members before legislative bodies, regulatory agencies, and the courts. The California State Council has
18 long been an advocate for russ consumers and quality of care. The California State Council brings this

19 suit on behalf of its affiliate local unions and the members of its affiliates, who would have standing to

20 sue in their own right and whose personal participation in this litigation is not necessary, in order to
21 enjoin Defendants from implementing Section 12306. 1(d)(6) and reducing russ wages and benefits.

22

26. Defendant Arnold Schwarzenegger is the Governor of the State of California. Defendant

23 Schwarzenegger is sued in his official capacity.

24

27. Defendant John A. Wagner is the Director of the California Department of Social

25 Services and, as such, is responsible for administering the russ program. Defendant Wagner is sued in

26 his official capacity.

27 28
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1

28. Defendant David Maxwell-Jolly is the Director ofthe California Department of Health

2 Care Services and, as such, is responsible for administering Medi-Cal. Defendant Maxwell.;.Jolly is sued

3 in his official capacity.

4

29. Defendant John Chiang is the California State Controller and, as such, is responsible for

5 issuing payments to russ providers. Defendant Chiang is sued in his official capacity.

6

30. Defendant Fresno County provides the funding for the county's share ofthe costs of the

7 russ program in Fresno County, and the Fresno County Board of Supervisors sits as the Governing

8 Board of the Fresno County In-Home Supportive Services Public Authority.

9

31. Defendant Fresno County In-Home Supportive Services Public Authority ("Fresno

10 County russ Public Authority") administers the russ program in Fresno County and is responsible for

11 determining the wages and benefits of Fresno County's russ providers.

12

FACTUAL ALLEGATIONS

13 California's russ Program

14

32. California's russ program is designed to provide services to elderly or disabled persons

15 who are unable to remain safely in their homes without such services. Cal. Weif. & Inst. Code

16 §12300(a).

17

33. These services may include assistance with bathing, dressing, feeding, movement, taking

18 necessary medications, and travel 'to medical appointments. Id. §12300(b)-(c).

19

34. The russ program provides in-home assistance with these tasks of everyday living to

20 hundreds of thousands of Californians.

21

35. An russ consumer is assessed, pursuant to statewide guidelines, to determine his or her

22 need for supportive services. Based on that assessment, the consumer is authorized to receive a certain

23 number of hours of russ services for specific service tasks. See id. §12301.2.

24

36. In many cases, russ proViders are related to the person they are assisting. Sometimes

25 this relative has left a higher-paying job to provide this critical assistance to his or her loved one.

26

37. The wages and benefits of russ providers are paid for with a combination of federal,

27 state, and county funds. The State pays 65 percent ofthe approved nonfederal cost of russ providers'

28

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Case4:09-cv-02306-CW Document1 Filed05/26/09 Page12 of 25

1 wages and benefits, up to a statutorily detennined cap, and the county pays the remainder. Id.

2 I §§12306(b)-(c), 12306.1(c)-(d).

3

38. In fiscal year 2008-09, the State contributed 65 percent of the nonfederal share ofllISS

4 providers' wages and benefits, up to a total maximum wage and benefit package (including all sources of

5 funding) of$12.10 per hour. See id. §12306.1(d)(5).

6

39. As relevant here, in most counties, the wages and benefits of llISS providers are set by

7 county-established public agencies (called "public authorities"), through a process that may include

8 collective bargaining. !d. §12301.6(a)(2), (c)(1).

9

40. In some counties, collective bargaining agreements determine the level of wages and

10 benefits to llISS workers in the county. These collective bargaining agreements are renegotiated every

.~ l [I two to three years.

12

41. The California Department of Health Care Services is required by state law to "establish a

13 provider reimbursement rate methodology to determine payment rates" for IHSS providers. Id.

14 §14132.95(j)(2)(A)(i).

15

42. Consistent with this direction, California's Medicaid State Plan provides that wage and

16 benefit rates established through collective bargaining are the "rates recommended by the Department."

17 California State Plan Amendment 92-11, Attachment 4.19B, pp. 31-33.

18

43. When a county agrees to a wage increase, it must submit that increase for approval by the

19 Department of Health Care Services, which is authorized to grant conditional approval subject to

20 available funding. Cal. Welf. & Inst. Code §12306.1(a)-(b).

21 Section 12306.1(d)C6)

22

44. In February 2009, the California Legislature, during the Third Extraordinary Legislative

23 Session Legislative session, passed Senate Bill No.6 as part of an emergency budget compromise. That

24 bill included Section 12306.1(d)(6), which provides:

25

Notwithstanding [other provisions of §12306.1(d)], the state shall participate [in paying

the wages ofllISS providers] in a total cost of wages up to nine dollars and fifty cents

26

($9.50) per hour and in individual health benefits up to sixty cents ($0.60) per hour. This

paragraph shall become operative on July 1, 2009.

27

28

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1

4S. The California Department of Health Care Services has represented to the federal

2 government that the effect of Section 12306.1(d)(6) was to rescind the approval of all county wage rates

3 above $9.S0 per hour and benefit rates above $.60 per hour.

4

46. Prior to Section 12306.1(d)(6)'s enactment, the Legislature did not properly consider the

S effect of this statute on Medi-Cal's efficiency, economy, and quality of care, and the effect of this statute

6 on access to Medi-Cal services.

7

47. On April 2, 2009, the California Department of Social Services issued an All-County

8 Letter informing counties how Section 12306.1(d)(6) would be implemented. That letter directed

9 counties to "submit a PA Rate Request to reduce the wages and health benefits to the $10.10 level"

10 ($9.S0 per hour in wages and $.60 per hour in benefits) by May 1, 2009, in order for the new rate to take

11 effect on July 1, 2009. The letter also stated that if the county wage remained above $9.S0 the State

12 would no longer share in the cost of the amount above $9.S0, and if the county benefit rate remained

13 above $.60 the State would no longer share in the cost ofthe amount above $.60.

14

48. On May 1, 2009, the Department of Social Services issued a new All-County Information

15 Notice directing all counties paying wages above $9.S0 per hour and/or benefits above $.60 per hour to

16 submit a rate change request, and moved the applicable deadline to June 1,2009.

17 Effect of Section 12306.1(d)(6) on russ Provider Wage Rates.

18

49. Twenty-one California counties currently pay russ providers wages greater than $9.50

19 per hour. These counties are Alameda, Calaveras, Contra Costa, Fresno, Marin, Mendocino, Monterey,

20 Napa, Placer, Riverside, Sacramento, San Benito, San Francisco, San Luis Obispo, San Mateo, Santa

21 Barbara, Santa Clara, Santa Cruz, Solano, Sonoma, and Yolo.

22

so. In many of these counties, the wages are established by collective bargaining agreements

23 with UHW, ULTCW, or Local 521.

24

51. The Fresno County Board of Supervisors, sitting as itself and as the In-Home Supportive

25 Services Public Authority Governing Board, has approved a notice to the Department of Social Services
26 that Fresno County will reduce the wages and benefits of russ providers by $1.00 per hour - wages will

27 be reduced from $10.25 per hour to $9.S0 per hour, and benefits will be reduced from $.85 per hour to

28 $.60 per hour - effective July 1, 2009.

12

Complaint

Case4:09-cv-02306-CW Document1 Filed05/26/09 Page14 of 25

1

52. The Human Resources Department of Contra Costa County has informed UHW that

2 Contra Costa County will reduce the wages of russ providers by $1.18 per hour, from $11.50 per hour

3 to $10.32 per hour, effective July 1, 2009.

4

53. The In-Home Supportive Services Public Authority ofNapa County has approved a

5 notice that Napa County will reduce the wages of russ providers from $11.50 per hour to $10.20 per

6 hour, effective July 1, 2009.

7

54. The russ Public Authority Governing Board of Mendocino County has approved a

8 notice of reduction of the russ wage from $9.90 per hour to $9.64 per hour, effective July 1, 2009.

9

55. Other counties have informed Plaintiffs that they intend to reduce the wages of russ

10 providers effective July 1, 2009.

11

56. In the counties in which wages andlor benefits will be reduced, all russ providers will be

12 harmed by the reduction in their wages andlor benefits.

13

57. Additionally, in all counties, russ provider members ofUHW, ULTCW, Local 521, and

14 the California State Council will be harmed because their unions will face greater difficulty bargaining

15 for increased wages andlor benefits. Within the next year, UHW, ULTCW, and Local 521 will be
16 negotiating collective bargaining agreements for russ providers currently earning wages of$9.50 per

17 hour or less andlor benefits of$.60 per hour or less. Prior to the enactment of Section 12306.1(d)(6),

18 UHW, ULTCW, and Local 521 intended to bargain for increasing these wages above $9.50 per hour and

19 benefits above $.60 per hour.

20 Effect of Section 12306.1(d)(6) on russ Consumers

21

58. In the counties in which wages will be reduced, many russ providers will be forced to

22 leave russ employment to seek higher paying jobs. Not all the vacancies created by russ providers

23 leaving their employment will be filled with new russ providers.

24

59. As a result of these vacancies, many russ consumers in these counties will be unable to

25 find providers for any or all of their authorized russ hours. These consumers will either have to make

26 do with reduced or eliminated russ serVices, or be forced to enter nursing homes or other residential

27 institutions.

28

13

Complaint

Case4:09-cv-02306-CW Document1 Filed05/26/09 Page15 of 25

1

60. The level of provider payments set by Section 12306.1(d)(6) will not be adequate to enlist

2 enough IHSS providers so that the care and services are available to Medi-Cal recipients to the same

3 extent they are available to the general population in the same geographic areas.

4

61. The level of provider payments set by Section 12306.1(d)(6) will also force disabled

5 individuals into nursing homes who could remain in their homes with the help of supportive services and

6 who wish to remain in their homes.

7

CLASS ACTION ALLEGATIONS

8 Allegations Related to Claims Against State Defendants

9

62. Plaintiffs Mikesha Martinez, Dominguez, Alex Brown, Donna Brown, Lipton, Meyer,

10 Gordon, Ayers, Sheppard, and Andy Martinez bring the First, Second, Third, and Fourth Claims for

11 Relief as a class action, pursuant to Fed. R. Civ. P. 23(a), (b)(l), and/or (b)(2), on behalf ofthemselves

12 and the following Plaintiff Class, against Defendants Schwarzenegger, Wagner, Maxwell-Jolly, and

13 Chiang (hereinafter "State Defendants"):

14

All IHSS consumers residing in Alameda, Calaveras, Contra Costa, Fresno, Marin, Mendocino,

Monterey, Napa, Placer, Riverside, Sacramento, San Benito, San Francisco, San Luis Obispo,

15

San Mateo, Santa Barbara, Santa Clara, Santa Cruz, Solano, Sonoma, and Yolo counties.

16

63. Plaintiffs Mikesha Martinez, Dominguez, Alex Brown, Donna Brown, Lipton, Meyer,

17 Gordon, Ayers, Sheppard, and Andy Martinez are members of the Plaintiff Class on whose behalf the

18 First, Second, Third, and Fourth Claims for Relief are brought against State Defendants.

19

64. The Plaintiff Class consists of tens of thousands of individuals and is therefore so

20 numerous that joinder of all members is impracticable.

21

65. Common questions of law and fact predominate over any questions affecting individual

22 class members. Questions of law and fact common to members of the Plaintiff Class as a whole include,

23 but are not limited to, the following:

24

a. Whether the State failed to give the required consideration to the factors of

25

efficiency, economy, quality of care, and access to services prior to the enactment

26

of Section 12306.1(d)(6), in violation ofthe federal Medicaid Act, 42 U.S.C.

27

§ 1396a(a)(30)(A);

28

14

Complaint

Case4:09-cv-02306-CW Document1 Filed05/26/09 Page16 of 25

1

b. Whether the russ provider wages and benefits that will result from the .

2

implementation of Section 12306.1(d)(6) will be inconsistent with Medicaid's

3

mandated quality of care, and will not be sufficient to enlist enough russ

4

providers so that care and services under Medi-Cal are available at least to the

5

extent that such care and services are available to the general population in the

6

geographic area, in violation of the federal Medicaid Act, 42 U.S.C.

7

§ 1396a(a)(30)(A);

8

c. Whether the implementation of Section 12306.1(d)(6) will violate the rights of

9

Plaintiffs Mikesha Martinez, Dominguez, Alex Brown, Donna Brown, Lipton,

10

Meyer, Gordon, Ayers, Sheppard, and Andy Martinez, and class members to be

11

free from discrimination on the basis oftheir disability under the ADA, 42 U.S.C.

12

§12132, by forcing disabled individuals who could otherwise remain in their

13

homes to enter nursing homes or other residential institutions.

14

d. Whether the implementation of Section 12306.1(d)(6) will violate the rights of

15

Plaintiffs Mikesha Martinez, Dominguez, Alex Brown, Donna Brown, Lipton,

16

Meyer, Gordon, Ayers, Sheppard, and Andy Martinez, and class members to be

17

free from discrimination on the basis oftheir disability under Section 504 of the

18

Rehabilitation Act, 29 U.S.C. §794(a), by forCing disabled individuals who could

19

otherwise remain in their homes to enter nursing homes or other residential

20

institutions.

21

66. Plaintiffs Mikesha Martinez, Dominguez, Alex Brown, Donna Brown, Lipton, Meyer,

22 Gordon, Ayers, Sheppard, and Andy Martinez will fairly and adequately represent and protect the 23 interests of the Plaintiff Class. Plaintiffs have retained counsel competent and experienced in complex 24 class actions and federal civil rights litigation. Plaintiffs Mikesha Martinez, Dominguez, Alex Brown, 25 Donna Brown, Lipton, Meyer, Gordon, Ayers, Sheppard, and Andy Martinez's interests are co-extensive 26 with those of class members, and are not antagonistic to them.

27

67. Plaintiffs Mikesha Martinez, Dominguez, Alex Brown, Donna Brown, Lipton, Meyer,

28 Gordon, Ayers, Sheppard, and Andy Martinez's claims are typical of class members' claims. Like other

15

Complaint

Case4:09-cv-02306-CW Document1 Filed05/26/09 Page17 of 25

1 class members, they are currently receiving russ services and their russ providers' wages and benefits

2 may be reduced as a result of Section 12306.1(d)(6). Like other class members, they face a substantial

3 risk of irreparable harm as a result of State Defendants' conduct.

4

68. Class certification of the First, Second, Third, and Fourth Claims for Relief against State

5 Defendants is appropriate pursuant to Fed. R. Civ. P. 23(b)(1)(A) because the prosecution of separate

6 actions by individual class members would create a risk of inconsistent or varying adjudications with

7 respect to individual class members that would establish incompatible standards of conduct for the party

8 opposing the class.

9

69. Class certification of the First, Second, Third, and Fourth Claims for Relief against State

10 Defendants is appropriate pursuant to Fed. R. Civ. P. 23(b)(1 )(B) because the prosecution of separate

,11 actions by individual class members would create a risk of adjudications with respect to individual class

12 members that would, as a practical matter, be dispositive of the interests ofthe other members not

13 parties to the adjudications.

14

70. Class certification of the First, Second, Third, and Fourth Claims for Relief is appropriate

15 pursuant to Fed. R. Civ. P. 23(b)(2) because State Defendants have acted or refused to act on grounds

16 generally applicable to the Class, making appropriate declaratory and injunctive relief with respect to

17 Plaintiffs Mikesha Martinez, Dominguez, Alex Brown, Donna Brown, Lipton, Meyer, Gordon, Ayers,

18 Sheppard, and Andy Martinez and the Plaintiff Class as a whole.

19 Allegations Related to-Claims Against Fresno County Defendants

20

71. Plaintiffs Mikesha Martinez, Alex Brown, and Andy Martinez bring the Third and Fourth

21 Claims for Relief as a class action, pursuant to Fed. R. Civ. P. 23(a), (b)(I), and/or (b)(2), on behalf of
m- 22 themselves and the following Plaintiff Class, against Defendants Fresno County and Fresno County

23 Home Supportive Services Public Authority (hereinafter "Fresno County Defendants"):

24

All russ consumers residing in Fresno County.

25

72. Plaintiffs Mikesha Martinez, Alex Brown, and Andy Martinez are members of the

26 Plaintiff Class on whose behalf the Third and Fourth Claims for Relief are brought against Fresno

27 County Defendants.

28
16

Complaint

Case4:09-cv-02306-CW Document1 Filed05/26/09 Page18 of 25

1

73. The Plaintiff Class consists of thousands of individuals and is therefore so numerous that

2 joinder of all members is impracticable.

3

74. Common questions of law and fact predominate over any questions affecting individual

4 class members. Questions oflaw and fact common to members of the Plaintiff Class as a whole include,

5 but are not limited to, the following:

6

a. Whether the reduction ofthe russ wage from $10.25 per hour to $9.50 per hour

7

and the russ benefits rate from $.85 per hour to $.60 per hour will violate the

8

rights of Plaintiffs· Mikesha Martinez, Alex Brown, and Andy Martinez, and class

9

members to be free from discrimination on the basis of their disability under the

10

ADA, 42 U.S.C. §12132, by forcing disabled individuals who could otherwise

11

remain in their homes to enter nursing homes or other residential institutions.

12

d. Whether the reduction of the russ wage from $10.25 per hour to $9.50 per hour

13

and the russ benefits rate from $.85 per hour to $.60 per hour will violate the

14

rights of Plaintiffs Mikesha Martinez, Alex Brown, and Andy Martinez, and class

15

members to be free from discrimination on the basis of their disability under

16

Section 504 ofthe Rehabilitation Act, 29 U.S.C. §794(a), by forcing disabled

17

individuals who could otherwise remain in their homes to enter nursing homes or

18

other residential institutions.

19

75. Plaintiffs Mikesha Martinez, Alex Brown, and Andy Martinez will fairly and adequately

20 represent and protect the interests of the Plaintiff Class. Plaintiffs have retained counsel competent and

21 experienced in complex class actions and federal civil rights litigation. Plaintiffs Mikesha Martinez,

22 Alex Brown, and Andy Martinez's interests are co-extensive with those of class members, and are not

23 antagonistic to them.

24

76. Plaintiffs Mikesha Martinez, Alex Brown, and Andy Martinez's claims are typical of

25 class members' claims. Like other class members, they are currently receiving russ services and their

26 russ providers' wages and benefits may be reduced as a result of Section 12306.1(d)(6). Like other

27 class members, they face a substantial risk of irreparable harm as a result of Fresno County Defendants'

28 conduct.

17

Complaint

Case4:09-cv-02306-CW Document1 Filed05/26/09 Page19 of 25

1

77. Class certification of the Third and Fourth Claims for Relief against Fresno County

2 Defendants is appropriate pursuant to Fed. R. Civ. P. 23(b)(1)(A) because the prosecution of separate

3 actions by individual class members would create a risk of inconsistent or varying adjudications with

4 respect to individual class members that would establish incompatible standards of conduct for the party 5 opposing the class..

6

78. Class certification of the Third and Fourth Claims for Relief against Fresno County

7 Defendants is appropriate pursuant to Fed. R. Civ. P. 23(b)(1 )(B) because the prosecution of separate

8 actions by individual class members would create a risk of adjudications with respect to individual class

9 members that would, as a practical matter, be dispositive of the interests of the other members not

10 parties to the adjudications.

11

79. Class certification of the Third and Fourth Claims for Relief is appropriate pursuant to

12 Fed. R. Civ. P. 23(b)(2) because Fresno County Defendants have acted or refused to act on grounds

13 generally applicable to the Class, making appropriate declaratory and injunctive relief with respect to

14 Plaintiffs Mikesha Martinez, Alex Brown, and Andy Martinez, and the Plaintiff Class as a whole.

15

FIRST CLAIM FOR RELIEF

16

(Violation of 42 U.S.C. §1396a(a)(30)(A)/Supremacy Clause,

Brought By Plaintiffs UHW, ULTCW, Local 521, and California State Council On Behalf Of

17 Themselves And By Plaintiffs Mikesha Martinez, Dominguez, Alex Brown, Donna Brown, Lipton,

Meyer, Gordon, Ayers, Sheppard, And Andy Martinez On Behalf Of Themselves And On Behalf Of The

18

Class, Against State Defendants)

19

80. Plaintiffs reallege and incorporate by reference all preceding paragraphs as if fully set

20 forth herein.

21

81. The federal Medicaid Act, 42 U.S.c. §1396a(a)(30)(A), requires, in relevant part, that a

22 state Medicaid plan:

23

provide such methods and procedures relating to the utilization of, and the payment for,

care and services available under the plan ... as may be necessary ... to assure that

24

payments are consistent with efficiency, economy, and quality of care and are sufficient to

enlist enough providers so that care and services are available under the plan at least to

25

the extent that such care and services are available to the general population in the

geographic area ....

26

82. 42 U.S.C. §1396a(a)(30)(A) mandates that states consider the effect of any proposed

27

changes to provider payments upon the efficiency, economy, quality of care, and access to services

28·

18

Complaint

Case4:09-cv-02306-CW Document1 Filed05/26/09 Page20 of 25

1 before making changes in those payments. See Orthopaedic Hospital v. Belshe, 103 F.3d 1491, 1496

2 (9th Cir. 1997) (in setting rates states must consider effect upon efficiency, economy, quality of care, and

3 access, including through reliance on "cost studies ... that provide reliable data").

4

83. In enacting Section 12306.1(d)(6), the California Legislature did not give the required

5 consideration to or conduct the required analysis of the effect of Section 12306. 1(d)(6) on efficiency,

6 economy, quality of care, and access to services prior to its enactment. Instead, Section 12306.1(d)(6)

7 was enacted solely for budgetary reasons.

8

84. Section 12306. 1(d)(6) therefore conflicts with, and is preempted by, 42 U.S.C.

9 §1396a(a)(30)(A).

10

85. If the State Defendants implement Section 12306. 1(d)(6), their conduct will cause

11 irreparable injury to Plaintiffs and the Plaintiff Class.

12

SECOND CLAIM FOR RELIEF

13

(Violation of 42 U.S.C. §1396a(a)(30)(A)/Supremacy Clause,

Brought By Plaintiffs UHW, ULTCW, Local 521, And California State Council On Behalf Of

14 Themselves and By Plaintiffs Mikesha Martinez, Dominguez, Alex Brown, Donna Brown, Lipton,

Meyer, Gordon, Ayers, Sheppard, And Andy Martinez On Behalf Of Themselves And On Behalf'OfThe

15

Class, Against State Defendants)

16

86. Plaintiffs reallege and incorporate by reference all preceding paragraphs as if fully set

17 forth herein.

18

87. The federal Medicaid Act, 42 U.S.c. §1396a(a)(30)(A), requires that states' provider

19 payments be "consistent with efficiency, economy, and quality of care and ... sufficient to enlist enough

20 providers so that care and services are available under the plan at least to the extent that such care and

21 services are available to the general popUlation in the geographic area."

22

88. The russ provider wages and benefits that would result from the implementation of

23 Section 12306.1(d)(6) would not be consistent with Medicaid's mandated quality of care.

24

89. The russ provider wages and benefits that would result from the implementation of

25 Section 12306.1 (d)(6) would not be sufficient to enlist enough russ providers so that care and services

26 under Medi-Cal were available at least to the extent that such care and services were available to the

27 general population in the geographic area.

28

19

Complaint

Case4:09-cv-02306-CW Document1 Filed05/26/09 Page21 of 25

1

90. Section 12306.1(d)(6) therefore conflicts with, and is preempted by, 42 U.S.C.

2 §1396a(a)(30)(A).

3

91. If the State Defendants implement Section 12306.1(d)(6), their conduct will cause

4 irreparable injury to Plaintiffs and the Plaintiff Class.

5

THIRD CLAIM FOR RELIEF

6

(Violation of 42 U.S.C. §12132/42 U.S.C. §1983/Supremacy Clause,

Brought By Plaintiffs Mikesha Martinez, Dominguez, Alex Brown, Donna Brown, Lipton, Meyer,

7 Gordon, Ayers, Sheppard, And Andy Martinez On Behalf Of Themselves And On Behalf Of The Class,

Against State Defendants And Fresno County Defendants)

8

92. Plaintiffs reallege and incorporate by reference all preceding paragraphs as if fully set

9

forth herein.

10

93. The Americans with Disabilities Act ("ADA"), 42 U.S.C. §12132, provides that "no

11

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

12

or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to

13

discrimination by any such entity."

14

94. The unjustified isolation of persons with disabilities in institutions constitutes a form of

15

discrimination prohibited by 42 U.S.C. §12132.

16

95. Plaintiffs Mikesha Martinez, Dominguez, Alex Brown, Donna Brown, Lipton, Meyer,

17

Gordon, Ayers, Sheppard, and Andy Martinez are qualified individuals with disabilities within the

18

meaning of the ADA, and are recipients ofIHSS services from a public entity.

19

96. The implementation of Section 12306.1(d)(6) and the reduction of wages and benefits for

20

IHSS providers, including in Fresno County, would violate 42 U.S.c. §12132 by creating a substantial

21

risk that Plaintiffs Mikesha Martinez, Dominguez, Alex Brown, Donna Brown, Lipton, Meyer, Gordon,

22

Ayers, Sheppard, and Andy Martinez will be unable to find IHSS providers and will, as a result, be

23

forced to enter nursing homes or other institutional facilities, despite their desire and ability to remain in

24

their homes.

25

97. It would cost the Medi-Cal program more money to provide care for Plaintiffs Mikesha

26

Martinez, Dominguez, Alex Brown, Donna Brown, Lipton, Meyer, Gordon, Ayers, Sheppard, and Andy

27

Martinez in nursing homes or other institutional facilities than it would cost to provide IHSS services

28

20

Complaint

Case4:09-cv-02306-CW Document1 Filed05/26/09 Page22 of 25

1 that would pennit Plaintiffs Mikesha Martinez, Dominguez, Alex Brown, Donna Brown, Lipton, Meyer,

2 Gordon, Ayers, Sheppard, and Andy Martinez to remain in their homes.

3

98. The implementation of Section 12306.1(d)(6) and the reduction of wages and benefits for

4 russ providers, including in Fresno County, would deprive Plaintiffs Mikesha Martinez, Dominguez,

5 Alex Brown, Donna Brown, Lipton, Meyer, Gordon, Ayers, Sheppard, and Andy Martinez of their rights

6 under 42 U.S.C. §12132 to be free from discrimination based on their disability.

7

99. Section 12306.1(d)(6) and the Fresno County wage and benefit rate reduction therefore

8 conflict with, and are preempted by, 42 U.S.c. §12132.

9

100. The implementation of Section 12306.1(d)(6) and the reduction of wages and benefits for

10 russ providers, including in Fresno County, would cause irreparable injury to Plaintiffs and the Plaintiff

11 Class.

12

FOURTH CLAIM FOR RELIEF

13

(Violation of29 U.S.C. §794(a)/42 U.S.C. §1983/Supremacy Clause,

Brought By Plaintiffs Mikesha Martinez, Dominguez, Alex Brown, Donna Brown, Lipton, Meyer,

14 Gordon, Ayers, Sheppard, And Andy Martinez On Behalf Of Themselves And On Behalf Of The Class,

. Against State Defendants And Fresno County Defendants)

15

10l. Plaintiffs reallege and incorporate by reference all preceding paragraphs as if fully set

16

forth herein.

17

102. Section 504 ofthe Rehabilitation Act, 29 U.S.c. §794(a), provides that "[n]o otherwise

18

qualified individual with a disability ... shall, solely by reason of her or his disability, ... be subjected

19

to discrimination under any program or activity receiving Federal financial assistance."

20

103. The unjustified isolation of persons with disabilities in institutions constitutes a fonn of

21

discrimination prohibited by 29 U.S.C. §794(a).

22

104. Plaintiffs Mikesha Martinez, Dominguez, Alex Brown, Donna Brown, Lipton, Meyer,

23

Gordon, Ayers, Sheppard, and Andy Martinez are qualified individuals with disabilities within the

24
meaning of the Rehabilitation Act, and are recipients of russ services pursuant to a program receiving

25

federal financial assistance.

26

105. Section 12306.1(d)(6) and the Fresno County Defendants' reduction of wages and

27
benefits for russ providers in Fresno County, if implemented, will violate 29 U.S.C. §794(a) by creating

28

21

Complaint

Case4:09-cv-02306-CW Document1 Filed05/26/09 Page23 of 25

1 a substantial risk that Plaintiffs Mikesha Martinez, Dominguez, Alex Brown, Donna Brown, Lipton,
2 Meyer, Gordon, Ayers, Sheppard, and Andy Martinez will be unable to find russ providers and will, as

3 a result, be forced to enter nursing homes or other institutional facilities, despite their desire and ability

4 to remain in their homes.

5

106. It would cost the Medi-Cal program more money to provide care for Plaintiffs Mikesha

6 Martinez, Dominguez, Alex Brown, Donna Brown, Lipton, Meyer, Gordon, Ayers, Sheppard, and Andy
7 Martinez in nursing homes or other institutional facilities than it would cost to provide russ services

8 that would permit Plaintiffs Mikesha Martinez, Dominguez, Alex Brown, Donna Brown, Lipton, Meyer,

9 Gordon, Ayers, Sheppard, and Andy Martinez to remain in their homes.

10

107. Implementation of Section 12306.1(d)(6) and the reduction of wages and benefits for

11 russ providers, including in Fresno County, would deprive Plaintiffs Mikesha Martinez, Dominguez,

12 Alex Brown, Donna Brown, Lipton, Meyer, Gordon, Ayers, Sheppard, and Andy Martinez of their rights

13 under 29 U.S.c. §794(a) to be free from discrimination based on their disability.

14

108. Section 12306.1(d)(6) and the Fresno County wage and benefit rate reduction therefore

15 conflict with, and are preempted by, 29 U.S.C. §794(a).

16

109. Implementation of Section 12306.1(d)(6) and the reduction of wages and benefits for

17 russ providers, including in Fresno County, would cause irreparable injury to Plaintiffs and the Plaintiff

18 Class.

19

PRAYER FOR RELIEF

20

WHEREFORE, all Plaintiffs on behalf of themselves, and Plaintiffs Mikesha Martinez,

21 Dominguez, Alex Brown, Donna Brown, Lipton, Meyer, Gordon, Ayers, Sheppard, and Andy Martinez

22 on behalf of all members of the Plaintiff Class, pray that the Court:

23

1) Enter a preliminary injunction, pending a decision on the merits, that (1) enjoins the State

24

Defendants from taking any action (a) to implement Section 12306.1(d)(6) by reducing

25

the maximum wage of russ providers that the State will help fund to $9.50 per hour and

26

the maximum benefit rate of russ providers that the State will help fund to $.60 per

27

hour, or (b) to approve or implement any county russ rate decreases adopted pursuant to

28

Section 12306. 1(d)(6), and (2) enjoins the Fresno County Defendants from taking any

22

Complaint

Case4:09-cv-02306-CW Document1 Filed05/26/09 Page24 of 25

1

action to implement a wage and benefit reduction for Fresno County russ providers, and

2

conditionally certify the proposed classes for the purpose of such relief;

3

2) Certify this action as a class action on behalf of the proposed Plaintiff Classes;

4

3) Designate Plaintiffs Mikesha Martinez, Dominguez, Alex Brown, Donna Brown, Lipton,

5

Meyer, Gordon, Ayers, Sheppard, and Andy Martinez as Representatives of the Plaintiff

6

Classes;

7

4) Designate Plaintiffs' counsel as Counsel for the Plaintiff Classes;

8

5) Enter a declaratory judgment that the enactment and implementation of Section

9

12306.1(d)(6) is preempted by the Medicaid Act, 42 U.S.C. §1396a(a)(30)(A), the ADA,

10

42 U.S.C. §12132, and the Rehabilitation Act, 29 U.S.C. §794(a);

11

6) Enter a declaratory judgment that the enactment and implementation of Section

12

12306.1(d)(6), including the reduction of wages and benefits for russ providers in

13

Fresno County, will deprive Plaintiffs Mikesha Martinez, Dominguez, Alex Brown,

14

Donna Brown, Lipton,Meyer, Gordon, Ayers, Sheppard, and Andy Martinez of their

15

rights under the ADA, 42 U.S.C. §12132, and the Rehabilitation Act, 29 U.S.c. §794(a),

16

to be free from discrimination based on their disability;

17

7) Issue a permanent injunction prohibiting the State Defendants from implementing Section

18

12306.1(d)(6) including by approving any county rate decreases, and prohibiting the

19

Fresno County Defendants from implementing a wage and benefit reduction for Fresno

20

County russ providers;

21

8) Award Plaintiffs their costs and expenses, including reasonable attorney's fees, expert

22

witness fees, and costs of suit; and

23

9) Award such other further and additional relief as the Court may deem just and proper.

24 III

25 III

26 III

27 III

28 III

23

Complaint

Case4:09-cv-02306-CW Document1 Filed05/26/09 Page25 of 25

1 Dated: May 26, 2009 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

STEPHEN P. BERZON (SBN 46540) SCOTT KRONLAND (SBN 171693) STACEY M. LEYTON (SBN 203827) PEDER J. THOREEN (SBN 217081) ANNE N. ARKUSH (SBN 254985) Altshuler Berzon LLP
- By. hAUr ./ . Anne N. Krkush Attorneys for Plaintiffs
24
Complaint

 
 Case4:09-cv-02306-CW Document5 Filed06/04/09 Page1 of 32

1 STEPHEN P. BERZON (SBN 46540) SCOTT A. KRONLAND (SBN 171693)
2 STACEY M. LEYTON (SBN 203827) PEDERJ. THOREEN (SBN 217081)
3 ANNE N. ARKUSH (SBN 254985) Altshuler Berzon LLP
4 177 Post Street, Suite 300 San Francisco, California 94108
5 Telephone: (415) 421-7151 Facsimile: (415) 362-8064
6 sberzon@altshulerberzon.com skronlandeialtshulerberzon.com
7 sleyton@aTtshulerberzon.com pthoreen@altshulerberzon.com
8 aarkush@altshulerberzon.com

9 Attorneys for Plaintiffs

10

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

11

SAN FRANCISCO/OAKLAND DIVISION

12 MIKESHA MARTINEZ, by and through her

) Case No. C 09-02306 CW

husband and next friend Carlos Martinez, LYDIA )

13 DOMINGUEZ, ALEX BROWN, by and through )

his mother and next friend Lisa Brown, DONNA ) CLASS ACTION

14 BROWN, CHLOE LIPTON, by and through her )

conservator and next friend Julie Weissman-

) PLAINTIFFS' NOTICE OF MOTION

15 Steinbaugh, HERBERT M. MEYER, LESLIE ) AND MOTION FOR A PRELIMINARY

GORDON, CHARLENE AYERS, WILLIE

) INJUNCTION; MEMORANDUM OF

16 BEATRICE SHEPPARD, and ANDY

) POINTS AND AUTHORITIES IN

MARTINEZ, on behalf of themselves and a class ) SUPPORT

17 of those similarly situated; SERVICE

)

EMPLOYEES INTERNATIONAL UNION

)

18 UNITED HEAL THCARE WORKERS WEST; ) Date: TBD

SERVICE EMPLOYEES INTERNATIONAL

) Time: TBD

19 UNION UNITED LONG-TERM CARE

) Place: Courtroom 2, 4th floor,

WORKERS; SERVICE EMPLOYEES

)

Oakland Federal Courthouse

20 INTERNATIONAL UNION LOCAL 521; and )

1301 Clay Street

SERVICE EMPLOYEES INTERNATIONAL

)

Oakland, CA 94612

21 UNION CALIFORNIA STATE COUNCIL,

)

)

22

Plaintiffs,

)

)

23

v.

)

)

24 ARNOLD SCHWARZENEGGER, Governor of )

the State of Cali fomi a; JOHN A. WAGNER,

)

25 Director of the California Department of Social )

Services; DAVID MAXWELL-JOLLY, Director )

26 of the California Department of Health Care

)

Services; JOHN CHIANG, California State

)

27 Controller; FRESNO COUNTY; and FRESNO )

COUNTY IN-HOME SUPPORTIVE SERVICES )

28 PUBLIC AUTHORITY,

)

)

Defendants.

)

---------------)

Case4:09-cv-02306-CW Document5 Filed06/04/09 Page2 of 32

1

NOTICE OF MOTION AND MOTION FOR PRELIMINARY INJUNCTION

2

Please take notice that at a date and time to be set by the Court, in Courtroom 2, Oakland

3 Federal Courthouse, 1301 Clay Street, Oakland CA 94612, before the Honorable Claudia Wilken,

4 Plaintiffs will move the Court for entry of a preliminary injunction, pending a final decision on the

5 merits, that prohibits Defendants Schwarzenegger, Wagner, Maxwell-Jolly and Chiang from

6 implementing California Welfare and Institutions Code §12306.1(d)(6), including by approving or

7 implementing any county In Home Supportive Services ("IHSS") rate decreases adopted pursuant to

8 Section 12306. 1(d)(6), and that prohibits Defendants Fresno County and Fresno County IHSS Public

9 Authority from implementing the rate reduction for IHSS providers that is scheduled to become effective

10 on July 1,2009. Because the challenged actions will take effect on July 1,2009, a motion to shorten the

11 time in which to hear this motion is being filed under separate cover.

12

This motion is made pursuant to FRCP 65 on the ground that Plaintiffs meet the requirements for

13 a preliminary injunction because they have demonstrated a likelihood of success on the merits, a

14 likelihood of irreparable harm in the absence of preliminary relief, that the balance of equities tips in

15 their favor, and that an injunction is in the public interest. See American Trucking Ass 'ns, Inc. v. City of

16 Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009).

17

This motion is based on this Notice of Motion and Motion, the accompanying Memorandum of

18 Points and Authorities in Support of Preliminary Injunction, the Declarations in Support of Motion for

19 Preliminary Injunction, the Complaint For Injunctive And Declaratory Relief, the Plaintiffs' Request for

20 Judicial Notice, the [Proposed] Order Granting Plaintiffs' Motion for a Preliminary Injunction, the

21 complete files and records of this action, and such other and further matters as the Court may properly

22 consider.

23 II

24 II

25 II

26 II

27 II

28 II

Plaintiffs' Motion for a Preliminary Injunction; Memorandum in Support, Case No. C09-02306 CW

Case4:09-cv-02306-CW Document5 Filed06/04/09 Page3 of 32

1 Dated: June 4, 2009 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Respectfully submitted STEPHEN P. BERZON SCOTT KRONLAND STACEY M. LEYTON PEDER J. THOREEN ANNE N. ARKUSH Altshuler Berzon LLP By: =c-----.---:,.....",...-----Stacey M. Leyton Attorneys for Plaintiffs
2

Plaintiffs' Motion for a Preliminary Injunction; Memorandum in Support, Case No. C09-02306 CW

Case4:09-cv-02306-CW Document5 Filed06/04/09 Page4 of 32

I

TABLE OF CONTENTS

2

SUMMARY OF ARGUMENT

I

3 BACKGR01JND

2

4

A. California's IHSS Program

2

5

B. Enactment Of Section 12306. I(d)(6) to Cut IHSS

4

C. Implementation of Section 12306.1(d)(6)

5

6

D.

Effect Of Section 12306.I(d)(6)

6

7

I. On IHSS Providers

6

8

2. On IHSS Consumers

8

ARGUMENT

10

9 I.

PLAINTIFFS HAVE AN OVERWHELMING LIKELIHOOD OF SUCCESS ON THE MERIm

10

A. Section 12306.1(d)(6) Violates Procedural And Substantive Medicaid Requirements .. 11

11

I. Defendants Failed To Comply With Section 30(A)'s Procedural Requirements 12

2. Section 12306.I(d)(6) Will Violate Substantive Rights Guaranteed By Section

12

30(A)

15

13

B. Implementation of Section 12306. I(d)(6) And The Fresno County Wage Reductions Will

Violate The Integration Mandates Of The ADA And The Rehabilitation Act

17

14

1. The Integration Mandates Of The ADA And Rehabilitation Act Prohibit

Unjustified Institutionalization Of Disabled Persons

18

15

2. The Implementation Of Section 12306. 1(d)(6) And The Proposed Wage

Reduction In Fresno County Will Cause Unjustified Institutionalization In

16

Violation Of The ADA And The Rehabilitation Act

19

17 II. 18

THE REMAINING PRELIMINARY INJUNCTION FACTORS OVERWHELMINGLY

WEIGH IN FAVOR OF MAINTAINING THE STATUS QUO PENDING A HEARING ON

THE MERITS

21

19

A. The Failure To Enjoin Section 12306.I(d)(6) And The Wage Cuts Would Result In Immediate, Irreparable Harm To IHSS Consumers And

20

Providers

21

B. The Balance Of Hardships Tips Strongly In Plaintiffs' Favor

24

21

C. The Public Interest Sharply Favors Granting Relief

25

22 CONCLUSION

25

23

24

25

26

27

28

Plaintiffs' Motion for a Preliminary Injunction; Memorandum in Support, Case No. C09-02306 CW

Case4:09-cv-02306-CW Document5 Filed06/04/09 Page5 of 32

1

TABLE OF AUTHORITIES

2

FEDERAL CASES

3 Affiliates, Inc. v. Armstrong,

2009 WL 1197341 (D. Idaho Apr. 30,2009)

13

4 Alaska Department of Health & Social Services v. Centers for Medicare & Medicaid Services,

5

424 F.3d 931 (9th Cir. 2005)

15

6 America Trucking Ass'ns, Inc. v. City of Los Angeles,

559 F.3d 1046 (9th Cir. 2009)

7

Arkansas Medical Social, Inc. v. Reynolds,

8

6 F.3d 519 (8th Cir. 1993)

1, 10 13

9 Ball v. Rodgers,

492 F.3d 1094 (9th Cir. 2007)

11

10

Ball v. Rodgers,

11

2009 WL 1395423 (D. Ariz. Apr. 24,2009)

'

20

12 Beltran v. Meyers, 677 F.2d 1317 (9th Cir. 1982)

13

California Pharmacists Association v. Maxwell-Jolly,

14

563 F.3d 847 (9th Cir. 2009)

23, 24 passim

15 Clark v. Cove,

967 F.2d 585 (9th Cir. 1992)

16

16

Clark v. Kizer,

17

758 F. Supp. 572 (E.D. Cal. 1990)

16

18 Clark v. Richman,

339 F. Supp. 2d 631 (M.D. Penn. 2004)

16

19

Clayworth v. Bonta,

20

295 F. Supp. 2d 1110 (E.D. Cal. 2003), vacated on other grounds, 140 Fed.Appx. 677 (9th Cir.

2005)

13

21 Crabtree v. Goetz,

22

No. 3:08-cv-939, 2008 WL 5330506 (M.D. Tenn. Dec. 19,2008)

20,23

23 DeGregorio v. O'Bannon,

500 F. Supp. 541 (E.D. Pa. 1980)

24 Fisher v. Oklahoma Health Care Authority,

25

335 F.3d 1175 (lOth Cir. 2003)

26 Frederick L. v. Department of Public Welfare of Committee of Penn., 364 F.3d 487 (3d Cir. 2004)
27

28
ii

16 20 19,20

Plaintiffs' Motion for a Preliminary Injunction; Memorandum in Support, Case No. C09-02306 CW

Case4:09-cv-02306-CW Document5 Filed06/04/09 Page6 of 32

1 Garrett v. City of Escondido,

465 F. Supp. 2d 1043 (S.D. Cal. 2006)

2

Golden Gate Restaurant Association v. City & County of San Francisco,

3

512 F.3d 1112 (9th Cir. 2008)

4 Independent Living Ctr. of S. Cal. v. She wry,

543 F.3d 1050 (9th Cir. 2008)

5

Independent Living Ctr. ofS. Cal. v. She wry,

6

2008 WL 3891211 (C.D. Cal. Aug. 18,2008)

7 Joyce v. City & County of San Francisco,

846 F. Supp. 843 (N.D. Ca1.1994)

8

LaForest v. Former Clean Air Holding Co., Inc.,

9

376 F.3d 48 (2d Cir. 2004)

10 Long v. Benson,

2008 WL 4571903 (N.D. Fla. Oct. 14,2008)

11

Lopez v. Heckler,

12

713 F.2d 1432 (9th Cir. 1983)

13 Mayer v. Wing,

922 F. Supp. 902 (S.D.N.Y. 1996)

14

Moody Emergency Medical Serv., Inc. v. City of Millbrook,

15

967 F. Supp. 488 (M.D. Ala. 1997)

16 Olmstead v. 1.C. ex reI. Zimring,

527 U.S. 581 (1999)

17

Orthopaedic Hospital v. Belshe,

18

103 F.3d 1491 (9th Cir. 1997)

19 Pediatric Specialty Care, Inc. v. Ark. Department of Human Services,

364 F.3d 925 (8th Cir. 2004)

20

Penn. Protection & Advocacy v. Penn. Department of Public Welfare,

21

402 F.3d 374 (3d Cir. 2005)

22 Radaszewski ex rel. Radaszewksi v. Maram,

383 F.3d 599 (7th Cir. 2004)

23

Temple Univ. v. White,

24

941 F.2d201 (3dCir.1991)

25 Scherr v. Volpe

466 F.2d 1027 (7th Cir. 1972)

26

United Steelworkers of America v, Textron, lnc.,

27

836 F.2d 6 (1st Cir. 1987)

24 25 11,12,17 _12, 13 10 23,24 23 23,25 22 15 1,18,19,20 11,12,13,15 12 18,20 18 25 25 24

28
111

Plaintiffs' Motion for a Preliminary Injunction; Memorandum in Support, Case No. C09-02306 CW

Case4:09-cv-02306-CW Document5 Filed06/04/09 Page7 of 32

1 Washington State Pharm. Association v. Gregoire,

2009 WL 1259632 (W.D. Wash. Mar. 31, 2009)

2

Winter v. Natural Resources Defense Council, Inc.,

3

_U.S. _,129 S. Ct. 365 (2008) .. _

4

STATE CASES

5 Mission Hospital Regional Medical Ctr. v. Shewry, 168 Cal. App. 4th 460 (2008)
6 FEDERAL STATUTES
7 29 U.S.C. §705(20)
8 29 U.S.C. §794(a)
9 42 U.S.C. §12101(a)(2)
10 42 U.S.C. §§ 1396a-1396v
11 42 U.S.C. §12102(2)
12 42 U.S.C. §12131(1)
13 42 U.S.C. §12131(2)
14 42 U.S.C. §12132
15 42 U.S.C. §1396a(a)(30)(A)
16 42 U.S.C. §1396d(b)
17 28 C.F.R. §35.130(d)
18 42 C.F.R. §440.260
19 42 C.F.R. §447.204
20 STATE STATUTES
21 Cal. Gov't Code §99030
22
Cal. Welf. & Inst. Code §12300(a)
23 Cal. Weif. & Inst. Code §12301.6(a)
24 Cal. Welf & Inst. Code §12306
25

26

27

28 iv

13
10
12
19 1, 18, 19
18 11 19 19 19 1,3, 18 1, 11
3 18 17 15
5 2 2,3 passim

Plaintiffs' Motion for a Preliminary Injunction; Memorandum in Support, Case No. C09-02306 CW

Case4:09-cv-02306-CW Document5 Filed06/04/09 Page8 of 32

1

MEMORANDUM OF POINTS AND AUTHORITIES

IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION

2 SUMMARY OF ARGUMENT

3 On July 1,2009, unless this Court enters a preliminary injunction, dramatic cuts to the wages

4 paid to In-Home Supportive Services ("IHSS") providers, who provide in-home assistance to low-

5 income elderly and disabled individuals through California's Medi-Cal program, will take effect. These

6 wage cuts will have a devastating effect on some of California's most vulnerable populations. Many

7 IHSS providers will be forced to reduce their hours or quit their jobs altogether, and many IHSS

8 consumers will be forced into institutional facilities or, if they remain in their homes, will go without

10 The wage cuts must be enjoined because they contravene federal law in a variety of ways. Most

11 obviously, they violate procedural requirements of the Medicaid Act. See 42 U.S.C. §1396a(a)(30)(A).

12 In April ofthis year, the Ninth Circuit re-affirmed that, when the State seeks to change payment rates

13 under the Medi-Cal program, the Medicaid Act requires that it first conduct a reasoned analysis of the

14 impact of those cuts to ensure that they are consistent with the level of care required under the Act. See

15 California Pharmacists Ass 'n v. Maxwell-Jolly, 563 F.3d 847 (9th Cir. 2009). Cuts enacted for purely

16 budgetary reasons, without such consideration, violate the Act. Because the Defendants failed to

17 conduct the required analysis of the impact of the cuts at issue prior to their enactment, they must be

18 enjoined.

19 Further, by leaving recipients without adequate access to quality in-home assistance, the cuts

20 violate the Medicaid Act's substantive guarantees of access to services and quality of care. See 42

21 U.S.C. §1396a(a)(30)(A). The cuts also constitute unlawful discrimination under the Americans with

22 Disabilities Act ("ADA") and Rehabilitation Act, because they will force disabled individuals who are

23 otherwise capable of living in their own homes and their own communities into institutional facilities.

t:c. 24 See 42 U.S.C. §12132; 29 U.S.C. §794(a); Olmstead v.

ex rei. Zimring, 527 U.S. 581 (1999).

25 Plaintiffs have submitted dozens of declarations from IHSS providers, IHSS consumers, and

26 experts in public health and economics that demonstrate the profound impact of the cuts at issue, and

27

28

Plaintiffs' Motion for a Preliminary Injunction; Memorandum in Support, Case No. C09-02306 CW

Case4:09-cv-02306-CW Document5 Filed06/04/09 Page9 of 32

1 made the requisite showing to support entry of a preliminary injunction prohibiting Defendants from

2 implementing the wage cuts on July 1,2009, pending a trial on the merits.

3

BACKGROUND

4 A. California's IHSS Program

5

California established the In-Home Supportive Services ("IHSS") program to provide assistance

6 with the tasks of daily living to low-income elderly and/or disabled persons "who cannot safely remain

7 in their homes or abodes of their own choosing unless these services are provided." Cal. Welf. & Inst.

8 Code §12300(a). The types of services provided through the program include assistance with bathing,

9 dressing, cooking, feeding, bowel and bladder care, self-administration of medication, and cleaning. Id.

10 §12300(b), (c). The program also authorizes, under some circumstances, protective supervision for

11 mentally impaired individuals and educational and paramedical services such as the administration of

12 medication and injections. Id., §12300(b), 12300.1.

13

By preventing the unnecessary institutionalization of individuals who can, with assistance,

14 remain in their homes and in the community, the IHSS program conserves state resources. In the

15 affected counties, the average annual cost to the State of maintaining someone in a nursing home is

16 $65,339, as opposed to an average annual IHSS cost of$12,374. Howes Decl. ~~ 72-73. In addition,

17 elderly and disabled individuals who remain in community-based settings are able to maintain the

18 autonomy and quality oflife that such settings offer. Schnelle Decl. ~~5-6; Jimenez Decl. ~~12-15.

19

For example, Plaintiff Lydia Dominguez, who is 81 years old, suffers from osteoperosis and

20 serious problems with her eye and right arm and is mostly unable to walk, fears she would die if forced

21 into a nursing home but is able to live in her own home because she receives IHSS assistance with

22 bathing, cooking, laundry and cleaning. Dominguez Decl. '~2-4, 7; Armas Decl. '~2-3, 7. Similarly,

23 Plaintiff Donna Brown, whose multiple sclerosis has caused her paralysis from the neck down, maintains

24 an active life in her church and community with IHSS assistance with meal preparation, eating, getting

25 out of bed, basic hygiene, bathing, dressing, emptying her catheter, self administration of medication,

26 and transportation to medical appointments. D. Brown Decl, ~~1-3, 5, 7-9.

27
28
2

Plaintiffs' Motion for a Preliminary Injunction; Memorandum in Support, Case No. C09-02306 CW

Case4:09-cv-02306-CW Document5 Filed06/04/09 Page10 of 32

1

The IHSS program is administered by counties, which may establish public authorities to provide

2 for the delivery ofIHSS services. Cal. Welf. & Inst. Code §12301.6(a). These public authorities are

3 considered employers ofIHSS providers for some purposes, including bargaining about providers' 4 wages and benefits. Id., §12301.6(c)(l). However, individual consumers hire, fire, and supervise their

5 own IHSS providers. ld. Consumers may find IHSS providers through personal connections, registries

6 maintained by county public authorities, or any other method. Id. §12301.6(e)(l), (h). The State, county

7 and public authorities are not responsible for finding an IHSS provider for a consumer unable to hire

8 one. See PIs. Request for Judicial Notice (hereinafter "Pl. RJN"), Ex. Q at 3.1

9

Some IHSS providers are related to their clients, and became providers only because a loved one

10 needed care. L. Brown Decl. ~7; Cerqua Deci. ~3; Meyer Decl. 'j[8. But many consumers employ

11 unrelated providers. Weissman-Steinbaugh Decl. 'j[5; Sheppard Deci. ~7; Tiedt Decl. 'j[7. Consumers

12 can have difficulty finding IHSS providers, in part because of the nature of the work. C. Martinez Decl.

13 'j[5;Weissman-Steinbaugh Decl. ~6; Ayers Decl. 'j[5;Tiedt Decl. ~6;Marzette Decl. 'j[6;see also Pi. RJN

14 Exs. R, S. The actual work performed by an IHSS provider depends on the needs of the individual

15 consumer.' but is often difficult and can be unpleasant. Some IHSS consumers are incontinent or unable

16 to reach the bathroom when necessary. Billops Decl. 'j[2;Marzette Decl. 'j[4. Others have mobility

17 impairments and must be lifted by their providers. Armas Decl. 'j[6;Calhoun Decl. 'j[8;Wilson Decl. 'j[4.

18 Still others have behavioral or mental health issues that make providing even basic services extremely

19 challenging. Weissman-Steinbaugh Decl. 'j[6;Y. Lee Decl. 'j[3;Lam Decl. 'j[5.

20

The IHSS rates (i.e., wages and benefits) affect the difficulty of finding providers. Because the

21 vast majority of IHSS consumers receive services as part of California's Medicaid program ("Medi-

22 Cal"), the federal government pays a certain percentage of these costs. See 42 U.S.C. §1396d(b).3 Of

23 the remaining cost, often referred to as the "non-federal share," the county pays 35 percent and the state

24

25

I Plaintiffs' RJN cites refer to the page numbers assigned by the electronic filing system. 2 The counties, using state-established guidelines, regularly assess each consumer's needs to

26

determine how many hours of assistance per month the consumer needs. ld. §§12301.1(b), 12301.2. A consumer may be authorized up to a maximum of 283 hours. ld. §I2300(h)(3 ).

27

3 Pursuant to Section 5001 (b)-(c) of the American Recovery and Reinvestment Act of2009

("ARRA"), Pub. L. No. 111-5, 123 Stat. 115, states are eligible for a temporary increase in the federal

28 share of provider rates from October 1, 2008 through December 31, 20 I O.

3

Plaintiffs' Motion for a Preliminary Injunction; Memorandum in Support, Case No. C09-02306 CW

Case4:09-cv-02306-CW Document5 Filed06/04/09 Page11 of 32

1 pays 65 percent of wages up to the current statutory cap of$12.10 per hour, above which the State will

2 not share the costs. Cal. Welf. & Inst. Code §§12306, 12306.1(c)-(d).

3

The rates paid to IHSS providers vary by county. The California Department of Health Care

4 Services ("DHCS") is required by state law to "establish a provider reimbursement rate methodology to

5 determine payment rates." Id. §14132.95(j)(2)(A). Consistent with that mandate, California's Medicaid

6 State Plan provides that wages and benefits established through collective bargaining at the county level

7 are the "rates recommended by the Department." PI. RJN, Ex. Pat 7-9. But these rates are subject to,

8 and do not take effect without, DRCS approval. Cal. Welf. & Inst. Code §12306.1(a)-(b); PI. RJN, Ex.

9 N. DRCS may grant conditional approval subject to available state funding. Cal. Welf. & lnst. Code

10 §12306.1(b).

11

At present, IHSS providers in many counties are paid wages that exceed $9.50 per hour and/or a

12 combination of wages and benefits that exceed $10.10 per hour. Golubock Decl., Ex. B.4

13 B. Enactment Of Section 12306.1(d)(6) to Cut IHSS

14

In early 2009, the California Legislature held the Third Extraordinary Legislative Session to

15 adopt emergency budget measures. As part of this session, the Legislature enacted Senate Bill No.6

16 ("SBX3 6"), §9, which amended Cal. Welf. & Inst, Code §12306.1(d) to add the following provision

17 ("Section 12306.1(d)(6)"):

18

(6) Notwithstanding [other provisions of §12306.1(d)], the state shall participate as

provided in subdivision (c) in a total cost of wages up to nine dollars and fifty cents

19

($9.50) per hour and in individual health benefits up to sixty cents ($0.60) per hour. This

paragraph shall become operative on July 1,2009.

20

This provision reduces the maximum IHSS provider rate in which the State will participate from

21

$12.10 per hour to $10.10 per hour ($9.50 in wages; $0.60 in benefits), effective July 1,2009. The

22

Legislature estimated this would reduce state IHSS payments by $74 million (PI. RJN, Ex. Kat 3), but

23

24

25 4 Plaintiff Service Employees International Union ("SElU") local unions United Healthcare
26 Workers West, United Long Term Care Workers, and Local 521 represent IHSS providers in a number of counties with wages above $9.50 (Alameda, Calaveras, Contra Costa, Fresno, Marin, Mendocino,
27 Monterey, Napa, Sacramento, San Benito, San Mateo, Santa Cruz, Solano, Sonoma, and Yolo) and/or benefits above $0.60 (Alameda, Contra Costa, Fresno, Marin, Sacramento, San Francisco, and Santa
28 Clara). Rasberry Decl. ~11; Golubock Decl., Ex. B.
4

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Case4:09-cv-02306-CW Document5 Filed06/04/09 Page12 of 32

1 that number is inflated because it does not reflect a subsequent increase in federal funds. See PI. RJN,

2 Ex. U at 15 (row 344); infra n.9.

3

SBX3 6 was pushed through in haste to close a budget gap. As originally introduced on January

4 5,2009, the bill contained no substantive terms, but stated its intention to "address[] the fiscal

5 emergency declared by the Governor by proclamation on December 19, 2008." PI. RJN, Exs. A, B. On

6 February 14,2009, SBX3 6 was amended to include the IHSS cap. Id., Ex. D. The bill passed the

7 Assembly the very same day, and passed the Senate five days later. Id., Ex. A. Governor

8 Schwarzenegger signed SBX3 6 into law on February 20,2009. Id.

9 C. Implementation of Section 12306.1(d)(6)

10

The IHSS cuts in SBX3 6 were not automatic. The Legislature provided that they would not be

11 implemented if the Treasurer and Department of Finance certified, by April 1, 2009, that California

12 would receive at least $10 billion is federal ARRA funds that could be used to offset General Fund

13 expenditures. See Cal. Gov. Code §99030; Budget Act of 2009, Senate Bill X3 No.1, §8.30. On March

14 27,2009, the Treasurer and Department of Finance agreed that California would receive less than $10

15 billion in such funds (see PI. RJN, Exs. L, M), and therefore, that Section 12306.1(d)(6) would go into

16 effect on July 1,2009. The Treasurer expressed his view that the IHSS cuts "targetj] people who most

17 need our help," predicted that "the suffering that would be caused by these particular cuts [will] be both

18 severe and compelling," and urged the Legislature to reconsider them. PI. RJN, Ex. L at 3.

19

On April 2,2009, the California Department of Social Services ("CDSS"), which administers the

20 IHSS program, issued an All-County Letter informing counties that the Section 12306.I(d)(6) cuts

21 would be implemented. PI. RJN, Ex. N. CDSS directed counties to "submit a PA Rate Request to

22 reduce the wages and health benefits to the $10.10 level" ($9.50 per hour in wages and $.60 per hour in

23 benefits) by May 1,2009, in order for the new rate to take effect on July 1,2009. Id. The letter also

24 stated that if the county wage remained above $9.50 the State would no longer share in the cost above

25 $9.50. Id. On May 1,2009, CDSS issued an All-County Information Notice directing all counties

26 paying above $9.50 per hour in wages to submit a rate change request, and moved the applicable

27 deadline to June 1, 2009. PI. RJN, Ex. O.

28
5

Plaintiffs' Motion for a Preliminary Injunction; Memorandum in Support, Case No. C09-02306 CW

Case4:09-cv-02306-CW Document5 Filed06/04/09 Page13 of 32

1

On May 5, 2009, an official at the U.S. Department of Health and Human Services ("HHS")

2 issued a letter concluding that, if California implemented Section 12306.1 (d)(6), the State would violate

3 a provision of the federal ARRA. Golubock Decl., Ex. D. On May 20,2009, another HHS official

4 overruled this determination, clearing the way for Section 12306. 1(d)(6) to take effect. Id., Ex. E.

5

At least 12 counties that currently pay wages greater than $9.50 per hour have submitted Rate

6 Change Requests to CDSS to reduce wages. McDevitt Decl. ~~2-4 & Ex. A; Nam Decl. ~~2, 4-6, 9;

7 Roth Decl. ~~4(b), 5(a), (b), (e), 6. For example, Defendant Fresno County IHSS Public Authority has

8 submitted a Rate Change Request that hourly wages be reduced from $10.25 to $9.50 and benefits from

9 $.85 to $.60.5 See PI. RJN, Ex. T. These reduced rates will be effective July 1,2009. Four additional

10 counties currently paying more than $9.50 per hour are likely to submit similar Rate Change Requests in

11 the imminent future." Nam Decl. ~10; Roth Decl. ~~4(a), (c); 5(c), (d).

12 D. 13 14

Effect Of Section 12306.1(d)(6) 1. On IHSS Providers If Section 12306.1(d)(6) is implemented, the wages of tens of thousands ofIHSS providers will

15 be reduced on July I, 2009. The vast majority of providers are already living on extremely limited

16 incomes. The wage reduction will have a substantial financial impact and, in some situations, will lead

17 providers to leave the IHSS program to seek other employment. Howes Decl. ~~9, 58; Calhoun Decl.

18 ~~6-7; Dominguez Decl. ~~6-7; Armas Decl. ~~5-7; C. Martinez Decl. ~~5-8; Peppars Decl. ~~5-7; D.

19 Brown Decl. ~~6-9; L. Brown Decl. ~~10-13; Billops Decl. ~~5-7; Marzette Decl. ~~9-13; Schwartz

20 Decl. ~4; Hamry Decl. ~6-7; Hunter Deci. ~~5-6; Wilson Decl. ~5.

21

For those IHSS providers who remain in their jobs, the wage cuts will be devastating, and may

22 result in providers' inability to pay for basic needs like food, health care, or housing. Sanchez Decl. ~5;

23

5 These rate change requests also include the following: Alameda ($11.50 to $10.20), Calaveras 24 ($9.75 to $9.50), Contra Costa ($11.50 to $10.32), Mendocino ($9.90 to $9.64), Napa ($11.50 to

25

$10.20), Placer ($10.00 to $9.68), Riverside ($10.25 to $9.50), San Benito ($10.50 to $9.85), San Mateo ($11.50 to $10.50), Solano ($11.50 to $10.50), and Yolo ($10.50 to $9.50). McDevitt Decl. ~~2-4; Nam

26 Decl. ~'2, 4-6, 9; Roth Decl. ~~4(b), 5(a), (b), (e). These counties include Monterey (proposing a phased reduction down to $9.50, from current
27 wage of$I1.50); Sacramento (proposing a wage reduction from $10.40 to $9.50 and benefit reduction from $.70 to $.60); Santa Cruz (proposing a wage reduction from $11.50 to $9.50) and Sonoma
28 (proposing a reduction from $11.50 to $10.20). Roth Decl. ~~4(a), (c), 5(c), (d).
6

Plaintiffs' Motion for a Preliminary Injunction; Memorandum in Support, Case No. C09-02306 CW

Case4:09-cv-02306-CW Document5 Filed06/04/09 Page14 of 32

1 Schwartz Decl. ~4; Blannon Dec!. ~4; L. Brown Decl. ~~9, 11; Rae Dec!. ~5; Cerqua Decl. ~5; Chen 2 Decl. ~6; Madanat Decl. ~5. The reduction of an $11.50 hourly wage to $9.50 per hour, for example, 3 will represent a more than 17% wage cut. Many of these providers are family members of their IHSS 4 consumers and responsible for providing housing, food, medication, and other necessities for their 5 elderly or disabled relative, and so both the providers and IHSS consumers are likely to suffer serious 6 deprivations.' See Blannon Decl. ~4 (provider and brother/consumer "would not be able to purchase 7 basic things, like three meal[s] a day and it would be difficult to pay rent" or for provider's diabetes 8 medication); L. Brown Decl. ~~11-12 (provider and son/consumer "could end up losing [our] home"); 9 Cerqua Decl. '5 (provider and daughter/consumer could "lose our housing" and provider "would lose 10 the ability to pay for health care"); Madanat Decl. ~5 ("'it would become extremely difficult to pay for 11 food, clothing, utilities, and rent"); A. Martinez Decl. ~6 (provider and husband/consumer would have to 12 leave current apartment); Rae Decl. ~5 (provider and consumer/son "would not be able to afford to stay 13 in our home"); Sanchez Decl. ~5 (provider could no longer afford consumer/daughter's medication or

14 food required by consumer's food allergies).

15

The reduction in IHSS rates will lead other providers to reduce their IHSS hours or to cease to

16 provide IHSS services altogether and seek other jobs. Howes Decl. ~~9,56-63; see also, e.g., Marzette

17 Decl. ~~2, 10 (currently earns $16 per hour in second job as nursing assistant and could earn overtime

18 rate of$24 per hour or $20 per hour performing private care); Billops Decl. ~5 (could look for property

19 maintenance work); Hamry Decl. ~7 (currently earns $12 per hour for private home care agency and

20 could increase those hours); Hunter Decl. ~5 (currently earns $13 per hour for private homecare agency

21 and could work more hours); Schwartz Decl. ~4; Armas Decl. ~5; Huamani Decl. ~6; Peppars Decl. ~5;

22 Figueroa Decl. ~4. For example, IHSS providers could seek home care work at private agencies, which

23 typically pay between $12 and $15 per hour. Traum Decl. ~~3-8. Many such agencies are currently

24 hiring home care providers. Id. ~9.

25

26

27

7 Providers who are related to their clients will be understandably reluctant to stop providing

IHSS services to their loved ones, particularly when it is uncertain whether it would be possible to find a

28 replacement for the lower wage rate. See, e.g., Y. Lee Decl. ~6.

7

Plaintiffs' Motion for a Preliminary Injunction; Memorandum in Support, Case No. C09-02306 CW

Case4:09-cv-02306-CW Document5 Filed06/04/09 Page15 of 32

1

Plaintiffs' expert, Economics Professor Candace Howes, has conducted a preliminary analysis of

2 data from CDSS, the California Employment Development Department, and an IHSS retention study of

3 five California counties. Howes Decl. ~~ 3-23. Professor Howes estimates the wage reductions

4 currently contemplated are likely to cause approximately 4,000 additional providers to leave IHSS

5 employment. Id. ~56. This conclusion is based upon her quantitative analysis of the responsiveness of

6 the relevant IHSS labor markets to changes in wages, based on prior data and taking into account the

7 independent variables (including the unemployment rate) that affect fluctuations in that responsiveness.

8 Id. ~~ 29-63.

9

2. On IHSS Consumers

10

IHSS consumers who lose their providers will face three options: find another provider, go

11 without IHSS services but attempt to remain in their homes, or enter institutional care.

12

Even those fortunate individuals who are able to find other providers at lower wages will be

13 harmed by a loss of continuity of care and disruption of relationships that have taken months or years to

14 build. Dominguez Decl, ~5 ("I did not know [my provider] before she began working for me as my

15 IHSS provider. But she treats me like a member of her family. She invites me to her family gatherings

16 and take me on her family vacations."); Wilson Decl. ~6 (consumer and provider "are very close and

17 have developed a mother-daughter-like relationship"); Billops Decl. ~6 (consumer "is a private person"

18 and "[i]t took time for her to develop trust in me, [even though] I was referred to her by her daughter");

19 Figueroa Decl. ~5 ("Because of [consumer's] paranoia issues, it is very difficult for her to find someone

20 that she will trust. Before 1became her IHSS provider, she had been without a provider for many

21 months because she had so much trouble finding a provider she trusted.").

22

For many, the consequences will be even more severe, threatening to undermine if not destroy

23 their health and independence. Finding a new IHSS provider, which has been difficult in the past for

24 many IHSS consumers, will be impossible for some given the reduced wages. For example, it is very

25 difficult to provide care for Teresa Armas' client, who is mostly unable to walk and must be physically

26 lifted into the shower. Armas Decl. ~6. It would be difficult to find a new provider at lower wages

27 because providers could find easier jobs for equal or more pay. Id. Shawna Marzette's client went

28 8

Plaintiffs' Motion for a Preliminary Injunction; Memorandum in Support, Case No. C09-02306 CW

Case4:09-cv-02306-CW Document5 Filed06/04/09 Page16 of 32

1 through 15 or 16 providers before she found Ms. Marzette. Marzette Decl. ~6. These providers were

2 either unreliable - failing to show up when expected or walking off of the job - or would quit because of

3 the difficulty of providing care. Id. Charlene Ayers, who is legally blind, has had difficulty finding

4 honest IHSS providers who will not take advantage of her disability. Ayers Decl, ~5; see also D. Brown

5 Decl. ~7; Tiedt Dec!. ~6; Gordon Decl. ~6.

6

Plaintiffs' expert, Professor Howes, estimates that approximately 2,700 current IHSS consumers

7 whose providers will leave their jobs as a result of the rate cut may be unable to find providers to replace

8 them. Howes DecJ. ~66.. Based on past studies, Professor Howes estimates that over one-fifth of these

9 IHSS consumers will try to remain at home without assistance from an IHSS provider. Id. This would

lObe at best difficult and at worst quite dangerous. Ayers Decl. ~9 ("would be unable to clean my

11 apartment or cook for myself' or "to go out into the community"); Figueroa DecJ. ~5 ("would go crazy,

12 have extreme anxiety and panic episodes"); Tiedt Decl. ~8 (could not go to doctors' appointments, leave

13 apartment, go shopping or get food); Hamry Decl. ~9. As Professor Mitchell LaPlante, an expert in

14 community-based care, explains, the adverse consequences of such consumers going without care

15 include "going hungry, weight loss, dehydration, falls, injuries due to falls, burns, and dissatisfaction."

16 LaPlante Decl. ~7; see also Howe Dec!. ~65.

17

Some of these consumers will be forced to enter nursing facilities or other residential institutions

18 because of their inability to remain in their homes without the help of an IHSS provider. Annas Decl.

19 ~~6-7; Billops Decl. ~5, 7; D. Brown Dec!. ~~7-9; L. Brown Dec!. ~12; Calhoun Decl. ~9; Dominguez

20 Dec!. ~7; Figueroa Decl. ~4; Gordon Decl. ~~6-7; Huamani Decl. ~8; Hunter Decl. ~8; C. Martinez Decl.

21 ~8; Marzette Decl. ~~12-13; Schwartz Decl. ~4; Sheppard Decl. ~8; Tiedt Decl. ~8; Weissman-

22 Steinbaugh Decl. ~7; Wilson Decl. ~9. Based on past studies, Professor Howes estimates that 1,400

23 consumers will be forced into such institutional care by the rate cut. Howes Decl. ~67.

24

The consequences of institutionalization - among others, loss of independence and reduced

25 quality of care due to high patient-staff ratios, Schnelle Decl. ~~5-6 - would be devastating for

26 individuals who are currently able to live relatively independent and autonomous lives in their homes

27 and, in many cases, to participate actively in their communities. D. Brown Decl, ~~8-9

28
9

Plaintiffs' Motion for a Preliminary Injunction; Memorandum in Support, Case No. C09-02306 CW

Case4:09-cv-02306-CW Document5 Filed06/04/09 Page17 of 32

1 (institutionalization would preclude her from engaging in current activities like teaching Sunday school

2 or planning community conference for disaster awareness); Gordon Decl. ~~2, 7 (would prevent work as

3 co-director of organization providing emergency services to elderly and disabled persons); Sheppard

4 Decl. -,r9(does not want to enter nursing home because used to work in one and witnessed poor quality

5 of care including residents who "ha[ d] to sit in their own urine all day long" or who "would not get

6 enough to eat"); Billops Decl, ~7; L. Brown Decl, ~13; Calhoun Decl. ~9; Huamani Decl. -,r8;Marzette

7 Dec!. -,r13;Weissman-Steinbaugh Decl. ~8;Wilson Decl. -,r9.

8

Moreover, the movement of even a portion ofIHSS consumers into institutional care settings

9 will cost the State tens of millions of dollars. The average total cost per consumer of providing IHSS

10 services in the counties affected by SBX3 6 is $12AOO per year; the State's share of this is $2,700.

II Howes Decl. ~-,r73,75. The average total cost to house a patient in a California nursing home for a year 12 in the affected counties is $65,339, and the State's share of this cost is $25,110. Howes Decl, ~~72, 75.8

13 Accordingly, Professor Howes estimates that the cost of approximately 1AOO IHSS consumers entering

14 nursing homes as a result of Section 12306.1 (d)(6) would be approximately $31 million. Id. ~76. This

15 significantly offsets the savings that the State claims will result from Section 12306.1(d)(6).9

16

ARGUMENT

17

To obtain a preliminary injunction, a plaintiff must establish that '''he is likely to succeed on the

18 merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of

19 equities tips in his favor, and that an injunction is in the public interest. '" American Trucking Ass 'ns,

20 Inc. v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009) (quoting Winter v. Natural Res. De!

21 Council, Inc., _U.S. _,129 S.Ct. 365, 374 (2008)). Plaintiffs easily satisfy each requirement. 10

22

8 Because, with very limited exceptions, the State contracts with private facilities to administer 23 nursing home care and pays on a per-patient basis, this average cost is a reasonably accurate assessment

of the actual cost to the State for each patient. Jimenez Decl. "4-6.

24

9 These savings on IHSS payments would be less than the $74 million that the State predicted

25

would result from the lower wages; when the ARRA's temporary increase in the federal share of provider rates is taken into account, the number drops to $60 million. Howes Decl. at 25 n. 6, ~77; RJN,

26

Ex. U at 15 (row 344). to Class certification is not necessary at this stage because granting relief to any members of the

27 consumer class (i.e., invalidating the statute) will effectively grant relief to the entire class. See Newberg on Class Actions, §9:45 at 413-14 (4th Ed. 2002) (interim injunctive relief should be awarded on a class-

28 wide basis where "activities ... are directed generally against a class of persons"); cf Joyce v. City &

10

Plaintiffs' Motion for a Preliminary Injunction; Memorandum in Support, Case No. C09-02306 CW

Case4:09-cv-02306-CW Document5 Filed06/04/09 Page18 of 32

1 I. PLAINTIFFS HAVE AN OVERWHELMING LIKELIHOOD OF SUCCESS ON THE

MERITS
2
A. Section 12306.1(d)(6) Violates Procedural And Substantive Medicaid Requirements.

3 Title XIX of the Social Security Act, 42 U.S.c. §§ 1396a-1396v (the "Medicaid Act"), authorizes

4 federal grants to states for medical assistance to low income persons who are aged, blind, disabled, or

5 members of families with dependent children. Orthopaedic Hosp. v. Belshe, 103 FJd 1491, 1493 (9th

6 Cir. 1997). The program is jointly financed by the federal and state governments and administered by

7 the states. Id. To receive matching federal financial participation for such services, states must agree to

8 comply with the applicable federal Medicaid law. Id.

9 The Medicaid Act requires a participating state to develop a state plan which describes the policy

10 and methods to be used to set payment rates for each type of service included in the program. Id. at

11 1494. A provision ofthe Medicaid Act, 42 U.S.C. §1396a(a)(30)(A) (hereinafter "Section 30(A)")

12 requires, in relevant part, that a state's Medicaid plan:

13 provide such methods and procedures relating to the utilization of, and the payment for, care and

14

services available under the plan ... as may be necessary ... to assure that payments are

consistent with efficiency, economy, and quality of care and are sufficient to enlist enough

15

providers so that care and services are available under the plan at least to the extent that such

care and services are available to the general population in the geographic area ....

16 (Emphasis added).

17 The italicized language sets forth what are known as Section 30(A)'s "quality of care" and

18 "access to care" or "equal access" provisions. See Independent Living CIr. of S. Cal. v. Shewry, 543

19 F.3d 1050, 1053 (9th Cir. 2008); Ball v. Rodgers, 492 F.3d 1094, 1097 (9th Cir. 2007). They require

20 that the state Medicaid plan "establish reimbursement rates for health care providers that are both

21 consistent with high-quality medical care ... and sufficient to enlist enough providers to ensure that

22
medical services are generally available to Medicaid recipients .... " Independent Living Ctr., 543 F.3d

23

24

25

County of San Francisco, 846 F. Supp. 843,853-54 (N.D. Ca1.1994) ("Since a determination has not yet been made whether plaintiffs can proceed as a class, it is appropriate at this stage that the Court consider

26 the injuries alleged to individuals within the entire, proposed class."). However, if the Court disagrees, it should certify the class of consumers preliminarily for purposes of interim relief. Cf Newberg, §9:45

"27 at 413-14 ("Preliminary injunctive relief on behalf of a class is freely awarded on a classwide basis. The court may conditionally certify the class or otherwise award a broad preliminary injunction, without a

28 formal class ruling, under its general equity powers.").

11

Plaintiffs' Motion for a Preliminary Injunction; Memorandum in Support, Case No. C09-02306 CW

Case4:09-cv-02306-CW Document5 Filed06/04/09 Page19 of 32

1 at 1053; Orthopaedic Hasp., 103 F.3d at 1497 ("[P]ayments should be .. - high enough to provide for

2 quality care and to ensure access to services").

3

"Section (30)(A) imposes both procedural and substantive requirements on states when they set

4 reimbursement rates for [care and services] provided to Medicaid beneficiaries." Mission Hasp.

5 Regional Med. Ctr. v. Shewry, 168 Cal.App.4th 460, 473 (2008). The wages and benefit payments to 6 IHSS providers are Medicaid "reimbursement rates" within the meaning of §30(A). See supra at 4.11

7 Section 12306.1 (d)(6) violates both the procedural and substantive requirements.

8

1. Defendants Failed To Comply With Section 30(A)'s Procedural

Req uirements.

9 In Orthopaedic Hospital v. Belshe, the Ninth Circuit held that Section 30(A) "requires the state

10 to consider efficiency, economy, quality of care, and access before setting Medi-Cal reimbursement

11 rates." California Pharmacists, 563 F.3d at 850 (citing Orthopaedic Hosp., 103 F.3d at 1496); accord

12 Independent Living Or. ofS. Cal. v. Shewry, 2008 WL 3891211, at *4 (C.O. Cal. Aug. 18,2008); see

13 also Mission Hosp., 168 Cal.App.4th at 473-74 ("As a result of section (30)(A), when the state seeks to

14 modify its reimbursement rates, it must consider efficiency, economy, quality of care, and equality of

15 access, and it must rely on responsible cost studies as a basis.").

16 When the state fails to conduct a Section 30(A) analysis regarding the impact of a rate cut, that

17 cut must be enjoined. See California Pharmacists, 563 F.3d at 849-50 (upholding preliminary

18 injunction: where Section 30(A) factors not considered prior to enactment of rate cut; plaintiffs made

19 "strong showing" oflikelihood of success on merits); see also Pediatric Specialty Care, Inc. v. Ark.

20 Dep't of Human Servs., 364 F.3d 925,929-31 (8th Cir. 2004) (enjoining cuts: plaintiffs established

21 procedural due process violation where state agency failed to consider effect of proposed change on

22

23

11 SBX3 6 was a rate cut for purposes of Section 30(A). According to communications that

DHCS sent to the federal government to explain why SBX3 6 did not violate the ARRA, the State's 24 prior IHSS rate approvals had been provisional and subject to the availability of State funding.

25

Golubock Decl., Exs. A, C. After the adoption of SBX3 6, the State informed counties that existing rates above $9.50/$0.60 were no longer approved and directed them to submit new rates to become

26

effective on July 1,2009. Pi. RJN, Exs. N, O. SBX3 6 also left the State with no choice but to approve requested rate reductions down to $9.50/$0.60, regardless of the 30(A) factors, because the ARRA

27 precludes the State from requiring counties to bear a greater percentage share ofIHSS rates to make up for a State funding reduction. Thus, the State's decision to approve all requested rate reductions down to

28 $9.50/$0.60 was already made by SBX3 6.
12

Plaintiffs' Motion for a Preliminary Injunction; Memorandum in Support, Case No. C09-02306 CW

Case4:09-cv-02306-CW Document5 Filed06/04/09 Page20 of 32

1 equal access and quality of care); Independent Living Ctr., 2008 WL 3891211, at *11 (enjoining cuts:

2 "Because respondent has failed to demonstrate that the State of California considered whether the ten

3 percent rate reduction would be consistent with efficiency, economy, quality of care, and equality of

4 access, or the effect of providers' costs on Medi-Cal beneficiaries' access to medical providers and

5 services, the Court finds that petitioners have demonstrated a likelihood of succeeding on the merits of

6 their Supremacy Clause claim."); Affiliates, Inc. v. Armstrong, 2009 WL 1197341, at *4-*7 (D. Idaho

7 Apr. 30, 2009) (enjoining cuts for failure to consider §30(A) factors); Washington State Pharm. Ass 'n v.

8 Gregoire, 2009 WL 1259632, at *1 (W.D. Wash. Mar. 31,2009) (same).

9

The Legislature's enactment of Medi-Cal cuts can be sustained only if there is evidence "the

10 legislature actually considered" an analysis regarding the impact of the cuts prior to enacting the statute.

11 California Pharmacists, 563 F.3d at 850 (not enough that an analysis existed, where there was no

12 evidence it was actually considered). Analyses performed after enactment cannot satisfy the procedural

13 requirements of Section 30(A) because the statute mandates that rates be "based on" consideration of the

14 relevant factors. Id. ("post-hoc rationalization for a legislative decision that had already been made"

15 does not satisfy §30(A)'s procedural requirements). Finally, it is not permissible to set a particular rate

16 "for purely budgetary reasons." Orthopaedic Hosp., 103 F.3d at 1499 n.3; see also Arkansas Med. Soc.,

17 Inc. v. Reynolds, 6 F.3d 519, 531 (8th Cir. 1993) ("Abundant persuasive precedent supports the

18 proposition that budgetary considerations cannot be the conclusive factor in decisions regarding

19 Medicaid." (collecting cases)); Clayworth v. Bonta, 295 F.Supp.2d 1110, 1129 (E.D. Cal. 2003), vacated

20 on other grounds, 140 Fed.Appx. 677 (9th Cir. 2005) ("Budget constraints are not alone a valid

21 justification for rate setting.").

22

In this case, the California Legislature never considered the Section 30(A) factors when it

23 adopted Section 12301(d)(6). SBX3 6, which include the IHSS cap, states only that it "addresses the

24 fiscal emergency declared by the Governor by proclamation on December 19,2008." PI. ,RJN, Ex. Fat

25 17. Cf Clayworth, 295 F.Supp.2d at 1128 (statutory language supports conclusion that statute was

26 enacted for budgetary reasons). No analyses in Section 12306.1(d)(6)'s legislative history mention the

27 impact of the provision on access to care or the quality of care. Instead, they focus solely on the

28
13

Plaintiffs' Motion for a Preliminary Injunction; Memorandum in Support, Case No. C09-02306 CW

Case4:09-cv-02306-CW Document5 Filed06/04/09 Page21 of 32

I purported cost savings to the State. See PI. RJN, Exs. A-J. And the Legislature conducted no hearings

2 prior to the passage of SBX3 6 to determine the impact on IHSS services. See Rasberry Dec. ~4.

3

Indeed, on April I, 2009 - well after the enactment of Section 12306.1(d)(6) - Eva Lopez, the

4 Deputy Director of the Adult Programs Division ofCDSS testified at a hearing before Assembly Budget

5 Subcommittee No. Ithat no such analysis of the impact of Section I2306.1 (d)(6) on access and quality

6 had been performed. Id. ~~5-6 & Ex. A. The following exchange occurred between Ms. Lopez and

7 Assemblymember Jim Beall, Jr.:

8

Assemblymember Beall: Have you determined if the wages go down and people

withdraw from the IHSS program what the impact on increased levels of nursing home referrals

9

for IHSS individuals would be in those areas that are high cost?

Lopez: No analysis has been conducted. 10
***

11

Beall: I believe that if we really wanted to know what the real impact of this is, we

would probably have to analyze whether or not this would basically cause a reduction in IHSS

12

numbers in the County and whether or not it would have an impact on increasing the number of

people that would go to nursing homes. Wouldn't you agree with that?

13

Lopez: I think the discussions that occurred through this last budget process was a very

14

difficult process and this is what the Legislature and the Administration moved forward with. And it's very difficult. And we would need to do - pursue additional information in order to

15

even attempt to do such an analysis.

Beall: OK. So you're saying you don't want to do the analysis? Is that what you're

16

saying?

Lopez: No, I'm not saying that we don't want to do the analysis. I guess what I'm

17

suggesting is that an analysis of that nature would need to - it would not be something that would

be as easily done. It would need to be really looked at -looked at, work with Department of

18

Health Care Services, look at how many folks have gone into the nursing homes - I mean, it's a

variety of issues that we would have to look at. 19
Rasberry Deci. ~6 & Ex. A.

20

Further, on April 21, 2009, the SEIU State Council sent public records requests seeking "[ajll

21 documents discussing, analyzing, reflecting, or otherwise regarding the impact that the wage and health

22 benefits cap set forth in California Welfare & Institutions Code §12306.1 (d)( 6) will or might have on

23 any aspect of California's Medi-Cal program" to the Legislative Analyst's Office (<<LAO"),CDSS, and

24 DHCS. Rasberry Decl. ~7 & Exs. B-D. In response, the LAO informed the State Council it had no

25 responsive documents. Id. ~8 & Ex. E. Similarly, CDSS has provided no documents in response to the

26 request, and the documents produced by DHCS included no analysis of Section 12306.1 (d)(6)'s impact

27 on the Section 30(A) factors. Id. ~~9-10 & Exs. F-H.

28
14

Plaintiffs' Motion for a Preliminary Injunction; Memorandum in Support, Case No. C09-02306 CW

Case4:09-cv-02306-CW Document5 Filed06/04/09 Page22 of 32

1

Because Defendants did not adequately consider the impact of Section 12306.1 (d)(6) on the

2 various Section 30(A) factors, Plaintiffs have made a "strong showing" of likelihood of success on the

3 merits. California Pharmacists, 563 F.3d at 850. Because the Ninth Circuit has held that such a

4 violation of Section 30(A) by itself requires enjoining a Medicaid cut (see California Pharmacists), the

5 Court should enjoin the implementation of Section 12306.1 (d)(6) on this ground alone and need not

6 reach the remaining claims for preliminary injunctive relief.

7

2. Section 12306.1(d)(6) Will Violate Substantive Rights Guaranteed By Section

8

30(A).

9

Section 12306. 1(d)(6) must be enjoined for the additional reason that it will violate the

10 substantive guarantees of Section 30(A)'s quality of care and equal access provisions. See Alaska Dep 't

11 of Health & Soc. Servs. v. Centersfor Medicare & Medicaid Servs., 424 F.3d 931,937 (9th Cir. 2005)

12 (affirming disapproval of state plan amendment because proposed rates were not "consistent with

13 efficiency, economy, and quality of care under §30(A)" (quotation marks omitted». After conducting

14 responsible studies to obtain data, the State must set rates that bear a reasonable relationship to the data

15 on the cost of providing access to quality services. See Orthopaedic Hospital, 103 F.3d at 1500 ("Upon

16 remand, the Department should undertake responsible cost studies that will provide reliable data as to

17 the hospitals' costs in providing outpatient services to the end that it determine the cost to an efficient

18 hospital economically providing quality care. The state must then set rates that have some reasonable

19 relation to such costs, the state bearing the burden of justifying any rate that substantially deviates from

20 such determined costs.").

21

a. Equal Access. Section 12306.1 (d)(6) will prevent Medi-Cal recipients from receiving

22 in-home care "at least to the extent that such care [is] available to the general population in the

23 geographic area!' Section 30(A); 42 C.F.R. §447.204 ("agency's payments must be sufficient to enlist

24 enough providers so that services under the plan are available to recipients at least to the extent that

25 those services are available to the general population"); Moody Emergency Med. Serv., Inc. v. City of

26 Millbrook, 967 F.Supp. 488, 493 (M.D. Ala. 1997) ("A state plan breaches its obligation under the equal

27 access provision if the state reimbursement rate is so inadequate that the number of participating

28
15

Plaintiffs' Motion for a Preliminary Injunction; Memorandum in Support, Case No. C09-02306 CW

Case4:09-cv-02306-CW Document5 Filed06/04/09 Page23 of 32

1 Medicare health care providers is substantially lower than the number of health care providers available

2 to the general population .... ").

3

Plaintiffs' evidentiary burden in this regard must take into account the preliminary stage of the

4 case, the State's failure to provide an analysis, and the recognition that gathering precise data regarding

5 the utilization of home care services by the insured population would present a "high, if not

6 insurmountable, hurdle[]." Clark v. Richman, 339 F.Supp.2d 631, 645 (M.D. Penn. 2004). Plaintiffs

7 can meet their burden by relying on various indicia of equal access, including evidence regarding the

8 level of provider participation in the Medi-Cal program and whether consumers are having difficulty

9 obtaining care. See Clark, 339 F.Supp.2d at 644 (citing Clark v. Kizer, 758 F.Supp. 572,576 (E.D. Cal.

10 1990), aff'd in relevant part sub nom, Clark v. Cove, 967 F.2d 585 (9th Cir. 1992)).

11

Here, the evidence demonstrates that Section 12306.1(d)(6) will increase provider turnover and

12 decrease the total pool of individuals willing to provide IHSS services. Plaintiffs have produced

13 evidence that IHSS providers will leave their employment based on the wage cuts at issue, and that

14 Plaintiff consumers and others will be unable to find providers to replace them. See supra at 8-9.

15 Plaintiffs' expert has reached a preliminary estimate that the cap will cause approximately 4,000 IHSS

16 providers to leave their jobs and that 2,700 consumers may be unable to find providers to replace them.

17 See supra at 9. Private home care agencies in the affected counties pay higher wages than $9.50 per

18 hour (see Traum Decl. ~1j[3-8;Hamry Decl. ~7; Hunter Decl. ~5), giving IHSS providers affected by the

19 wage cuts a strong incentive to turn to the private market and bolstering the conclusion that consumers

20 will be unable to access services for this rate. See, e.g., Marzette Dec. 1j[10. As a result, many current

21 IHSS recipients will be forced to go without care altogether, and certainly without the level of home care

22 available to the insured population that does not rely on Medi-Cal.

23

Because these facts indicate that Section 12306.1 (d)(6) will result in a significant disparity

24 between the availability of services available under the plan to Medicaid patients and its availability to

25 those who can afford to pay privately, Plaintiffs have demonstrated a strong likelihood that they will

26 prevail on their claim that Section 12306. 1(d)(6) violates Section 30(A)'s equal access guarantee. See

27 DeGregorio v. 0 'Bannon, 500 F.Supp. 541, 551 (E.D. Pa. 1980) ("If providers ... do not, in fact,

28
16

Plaintiffs' Motion for a Preliminary Injunction; Memorandum in Support, Case No. C09-02306 CW

Case4:09-cv-02306-CW Document5 Filed06/04/09 Page24 of 32

readily offer their services to medicaid recipients, with the result that medicaid recipients are denied 2 access to services comparable to that afforded the general population, the 'equal access' regulation 3 requires, at a minimum, that the Commonwealth set rates with a view toward enlarging the base of

4 provider participation.").

5

b. Quality of Care. The Ninth Circuit construes Section 30(A) to require "high-quality medical

6 care." Independent Living Ctr., 543 F.3d at 1053; see also 42 C.F.R. §440.260 (state plan must include

7 "description of methods and standards to assure that services of are high quality"). Yet the evidence

8 submitted in support ofthis motion demonstrates that Section 12306.1 (d)(6)'s implementation will cause

9 many current IHSS consumers to go without in-home care altogether or to suffer significant gaps or

10 deterioration in in-home assistance. See Howes Decl. ~~64-67; see also, e.g., Figueroa Decl. ~~4-6;

11 Annas Decl. ~~5-6; Ayers Decl. ~~5, 8; D. Brown Decl. ~~6-7; Huamani Decl. ~7; Rae Decl. ~5. The

12 absence of care that will thus result is inconsistent with Section 30(A)'s mandate that the Medi-Cal

13 program provide high quality care to recipients. See LaPlante Decl. ~7 (individuals eligible for home

14 care but who go without services "are much more likely to experience adverse consequences, including

15 discomfort, going hungry, weight loss, dehydration, falls, injuries due to falls, burns, and dissatisfaction.

16 These are serious problems that compromise the safety, comfort, and hygiene of such individuals.");

17 Altman Decl. ~~5-8 (provider cuts of the type contemplated by Section 12306.1 (d)(6) will result in

18 "poorer care, more expensive care, and poorer quality of life for these individuals who are among our

19 most vulnerable")."

20

For all of these reasons, Plaintiffs have also established a substantial likelihood of success in

21 demonstrating that Section 12306.1 (d)(6) will violate Section 30(A)'s substantive guarantees.

22

B.

Implementation of Section 12306.1(d)(6) And The Fresno County Wage Reductions

Will Violate The Integration Mandates Of The ADA And The Rehabilitation Act

23 By reducing IHSS provider wages and creating a shortage of IHSS providers, Section

24 12306.1(d)(6) will force some IHSS consumers - unable to remain safely at home without critical IHSS

25

26

27

12 Even those who go into nursing homes will suffer a significant deterioration in quality of care.

See Schnelle Decl. ~6 (many nursing homes in California offer poor quality care); see also Sheppard

28 Decl. ~9; Weissman-Steinbaugh Decl. ~8; Meyer Decl. ~9; Andy Martinez Decl. ~7; Billops Decl. ~7.

17

Plaintiffs' Motion for a Preliminary Injunction; Memorandum in Support, Case No. C09-02306 CW

Case4:09-cv-02306-CW Document5 Filed06/04/09 Page25 of 32

1 services - to enter nursing homes or other residential institutions, thereby violating the integration 2 mandates of the ADA, 42 U.S.C. §12132, and the Rehabilitation Act, 29 U.S.C. §794(a). A preliminary

3 injunction should be granted for this reason as well.

4

1. The Integration Mandates Of The ADA And Rehabilitation Act Prohibit

Unjustified Institutionalization Of Disabled Persons

5 The ADA and the Rehabilitation Act both prohibit discrimination on the basis of disability; the

6 ADA prohibits such discrimination by public entities, and the Rehabilitation Act prohibits it in programs

7 receiving federal financial assistance. 42 U.S.c. §12132; 29 V.S.C. §794(a).

8 In Olmstead v. 1. C. ex rel. Zimring, 527 V.S. 581 (1999), the Supreme Court held that the

9 "[ u]njustified isolation [of disabled persons] ... is properly regarded as discrimination based on

10 disability." Id. at 597.13 The Court explained the judgments underlying this recognition:

11 First, institutional placement of persons who can handle and benefit from community

12

settings perpetuates unwarranted assumptions that persons so isolated are incapable or

unworthy of participating in community life. Second, confinement in an institution

13

severely diminishes the everyday life activities of individuals, including family relations,

social contacts, work options, economic independence, educational advancement, and

14

cultural enrichment.

15 Id. at 600-01 (citations omitted); see also 42 U.S.C. §12101(a)(2) (Congressional finding that

16 "historically, society has tended to isolate and segregate individuals with disabilities, and, despite some

17 improvements, such fOnTISof discrimination against individuals with disabilities continue to be a serious

18 and pervasive social problem"). As Olmstead noted, this interpretation is also embodied in the statutes'

19 implementing regulations, which require that covered services be "administer] ed] ... in the most

20 integrated setting appropriate to the needs of qualified individuals with disabilities." 28 C.F.R.

21 §35.130( d) (ADA regulation); see also id. §41.51 (d) (Rehabilitation Act regulation).

22

Accordingly, Olmstead concluded that persons with disabilities must be placed "in community

23 settings rather than in institutions when the State's treatment professionals have determined that

24 community placement is appropriate, the transfer from institutional care to a less restrictive setting is not

25

26

13 Subsequent decisions have concluded that the Rehabilitation Act's anti-discrimination

27 provision imposes the same requirements. See, e.g., Penn. Protection & Advocacy v. Penn. Dep 't of Public Welfare, 402 F.3d 374, 379 n.3 (3d CiT. 2005); Radaszewski ex reI. Radaszewksi v. Maram, 383

28 F.3d 599,607 (7th Cir. 2004).

18

Plaintiffs' Motion for a Preliminary Injunction; Memorandum in Support, Case No. C09-02306 CW

Case4:09-cv-02306-CW Document5 Filed06/04/09 Page26 of 32

1 opposed by the affected individual, and the placement can be reasonably accommodated, taking into

2 account the resources available to the State and the needs of others with ... disabilities." 527 U.S. at

3 587. As the Third Circuit subsequently noted, "[i]t is a gross injustice to keep ... disabled persons in an

4 institution notwithstanding the agreement of all relevant parties that they no longer require

5 institutionalization. We must reflect on that more than a passing moment." Frederick L. v. Department

6 of Public Welfare ofComm. of Penn., 364 F.3d 487,500 (3d Cir. 2004).

7

2. The Implementation Of Section 12306.1(d)(6) And The Proposed Wage

Reduction In Fresno County Will Cause Unjustified Institutionalization In

8

Violation Of The ADA And The Rehabilitation Act

9

The implementation of Section 12306.1 (d)( 6) and the proposed wage reduction in Fresno County

10 threatens to force Plaintiffs who wish to remain in their homes and are able to do so with the help of

11 IHSS services instead to enter nursing homes or other residential institutions.

12

For example, Plaintiff Sheppard's provider will have to look for other work ifher IHSS wage is

13 reduced, and she does not believe that Ms. Sheppard will be able to find another provider for that lower

14 wage given her past difficulty finding providers. Huamani Decl. ~~5-8. Plaintiff Sheppard expects that

15 she will be forced into a nursing home. Sheppard Decl. ~~6-9. Other Plaintiffs are in a similar

16 situations. See supra at 9.

17

In addition, Professor Howes' analysis shows that reducing wages will cause many IHSS

18 providers to leave their jobs, and that a substantial number ofIHSS consumers will be unable to find

19 replacements. Howes Decl. ~~56, 64~67. Many of those consumers will end up in nursing homes, when

20 they could have remained in their homes with IHSS services. ld. ~67; LaPlante Decl, ~7; Schnelle Decl.

21 ~5.14 This threatened institutionalization is a violation of the integration mandates of the ADA and the

22 Rehabilitation Act. Olmstead, 527 U.S. at 597 ("Unjustified isolation ... is properly regarded as

23 discrimination based on disability."). 15

24

25

14Howes' analysis shows that this is true in Fresno County as well. Howes Decl. ~78. 15Plaintiffs are qualified individuals with disabilities, see 42 U.S.C. §§I2131(2), 12102(2); 29

26 U.S.C. §705(20)(B), and Defendants are regulated entities under the ADA and the Rehabilitation Act, see 42 U .S.C. §12131 (l); 29 U .S.C. §794(b )(1). In addition, as Plaintiffs are currently receiving IHSS

27 services in their homes, Olmstead's qualifications that community placement is only required if"the State's treatment professionals have determined that community placement is appropriate [and] the

28 transfer from institutional care to a less restrictive setting is not opposed by the affected individual," 527

19

Plaintiffs' Motion for a Preliminary Injunction; Memorandum in Support, Case No. C09-02306 CW

Case4:09-cv-02306-CW Document5 Filed06/04/09 Page27 of 32

1

In a very similar case, the District of Arizona recently found that Arizona violated the integration

2 mandates of the ADA and Rehabilitation Act by, among other things, failing to compensate home care

3 workers adequately and thereby creating "a shortage of attendant care workers, which prevented

4 Plaintiffs from receiving all of the needed and authorized services in their care plans." Ball v. Rodgers,

5 No. 00-cv-67, 2009 WL 1395423, at **5-6 (D. Ariz. Apr. 24, 2009) (appeal pending). The court found

6 that the state's "failure to provide Plaintiffs with the necessary services threatened Plaintiffs with

7 institutionalization, prevented them from leaving institutions, and in some instances forced them into

8 institutions in order to receive their necessary care." ld. Just as in Ball, Plaintiffs here have

9 demonstrated a likelihood that the reduced provider wages resulting from Section 12306. 1(d)(6) will

10 "threaten[] Plaintiffs with institutionalization" and thus violate the ADA and Rehabilitation Act.

11

Similarly, in Fisher v. Oklahoma Health Care Authority, the Tenth Circuit considered a state

12 program limiting recipients of Oklahoma's community-based Medicaid services to five prescriptions per

13 month, regardless of medical necessity; residents of nursing homes were not subj ect to the restriction.

14 335 F.3d 1175, 1178 (10th Cir. 2003). The program was implemented purely for budgetary reasons. ld.

15 at 1178-79. The plaintiffs - recipients of community-based services subject to the new policy -

16 presented evidence that this policy "will force them out of their communities and into nursing homes in

17 order to obtain the care that is medically necessary." ld at 1179 (footnote omitted). Because the Fisher

18 plaintiffs, like Plaintiffs here, "st]oo]d imperiled with segregation" as a result of the state's new policy,

19 the Tenth Circuit held that they had an ADA claim. ld. at 1181-82; see also Crabtree v. Goetz, No.

20 3:08-cv-939, 2008 WL 5330506, at *25 (M.D. Tenn. Dec. 19,2008) (granting plaintiffs' motion for

21 preliminary injunction preventing state from reducing maximum allowable hours of home health care

22 services because state's new policy "will eliminate services that enable Plaintiffs to remain in their

23 community placement" and thereby "cause their institutionalization into nursing homes").

24

Moreover, the requested relief does not constitute a "fundamental alteration" of the IHSS

25 program. See Olmstead, 527 U.S. at 604 (plurality opinion). It is well-established that "budgetary

26 constraints alone are insufficient to establish a fundamental alteration defense." Penn. Protection &

27
28 U.S. at 587, are satisfied here.
20

Plaintiffs' Motion for a Preliminary Injunction; Memorandum in Support, Case No. C09-02306 CW

Case4:09-cv-02306-CW Document5 Filed06/04/09 Page28 of 32

1 Advocacy, 402 F.3d at 380; see also Frederick L., 364 F.3d at 495-96; Fisher, 335 F.3d at 1182-83. And

2 in any event, as discussed above, Plaintiffs have demonstrated that the increased nursing home

3 admissions caused by implementation of Section 12306. I(d)(6) are likely to cost the State tens of

4 millions of dollars, reducing if not completely offsetting any anticipated savings from cutting the IHSS

5 wage. Howes Decl. ~76-77. And any savings are a small portion of the State's $14 billion in annual

6 Medi-Cal spending (including almost $2 billion on IHSS alone). PI. RJN, Exs. W at 2, X at 3.

7

In sum, Plaintiffs are likely to succeed on their claim that the implementation of Section

8 12306.1(d)(6) and the wage and benefit reductions of Fresno County threaten them with unjustified

9 institutionalization and thereby violate the integration mandates of the ADA and Rehabilitation Act.

10 II. It

THE REMAINING PRELIMINARY INJUNCTION FACTORS OVERWHELMINGLY WEIGH IN FAVOR OF MAINTAINING THE STATUS QUO PENDING A HEARING ON THE MERITS

12

A. The Failure To Enjoin Section 12306.1(d)(6) And The Wage Cuts Would Result In

Immediate, Irreparable Harm To IHSS Consumers And Providers

13 Unless the Court issues a preliminary injunction before July 1,2009, Defendants will proceed to

14 implement Section 12306. 1(d)(6), and Fresno County and several other counties will implement

15 reductions in the wages and benefits of IHSS providers. This will cause severe and irreparable harm to

16

both IHSS consumers and providers.

17 Consumer Plaintiffs: The wage reductions are likely to cause many IHSS providers to reduce

18 their hours ofIHSS service or leave IHSS employment altogether. See supra at 7-8 (relying on

19 declarations and expert analysis of Professor Howes). Many consumer Plaintiffs and class members will

20 be unable to find a satisfactory replacement provider and will either go without IHSS assistance or will

21 be forced to enter a nursing home or other institutional facility. See supra at 8-9.

22 In either case, these consumers' quality oflife and the quality of their health care will be greatly

23 diminished, causing them irreparable harm. Going without needed home care services has been

24 documented to cause severe harm to disabled individuals. LaPlante Decl. ~7 (consumers eligible for

25 community care who go without such care suffer from "going hungry, weight loss, dehydration, falls,

26 injuries due to falls, bums, and dissatisfaction"); Schnelle Decl. ~~5-6 (consumers eligible for

27 community care who enter nursing homes suffer from "a loss of independence and autonomy" as well as

28

21

Plaintiffs' Motion for a Preliminary Injunction; Memorandum in Support, Case No. C09-02306 CW

Case4:09-cv-02306-CW Document5 Filed06/04/09 Page29 of 32

1 "poor quality care"). Declarations filed in this case establish that similar harm may befall Plaintiffs and

2 other IHSS consumers. See, e.g., Ayers Decl. ~9 ("I would be unable to clean my apartment or cook for

3' myself' and would "not be able to go out into the community the way that I am able to now"); Tiedt

4 Decl. ~8 (couldn't go to doctors' appointments, leave apartment, go shopping or get food); Figueroa

5 Decl. ~5 ("would go crazy, have extreme anxiety and panic episodes") ..

6

Unwanted entry into a nursing home will cause different but equally irreparable injuries.

7 Individuals who prefer to remain in their homes but are forced into institutional care suffer greatly from

8 the loss of independence and autonomy. Schnelle Decl. ~5. And regardless of whether nursing home

9 admission is a choice, California nursing homes are often maintained below staffing levels considered to

lObe minimally safe. Id. ~6. Indeed, citations for noncompliance with legal requirements are common. Id.

11 Such deficient staffing can lead to problems such as ulcer development, pneumonia, undernutrition,

12 urinary incontinence, infections, and mortality. Id.

13

Plaintiffs and other declarants have established the specific injuries that they personally will

14 suffer upon entry into a nursing home. See D. Brown Decl. ~~8-9 (consumer paralyzed from the neck

15 down who is currently active member of her community; would "take away all of my freedom");

16 Weissman-Steinbaugh Decl. ~8 (mentally retarded consumer; would risk escalating behavioral problems

17 such as "screaming," "run[ning] her wheelchair into things," and "pinching staff'); Gordon Decl. ~7

18 (consumer with cerebral palsy who is currently active member of her community; could no longer

19 "maintain[] the quality and independence of the life I currently enjoy"); L. Brown Decl. ~13 (consumer

20 with Down Syndrome; "would lose control over his activities, schedule, and opportunity to make

21 choices"); Sheppard Decl. ~9 (consumer's prior experience working in a nursing home makes her fearful

22 of having to enter one; she witnessed poor quality of care including residents who "ha[d] to sit in their

23 own urine all day long" or who did "not get enough to eat").

24

This "reduc[tion] or tenninati[on of] home care services ... would result in the deprivation of

25 life-sustaining medical services. This certainly constitutes irreparable harm." Mayer v. Wing, 922 26 F.Supp. 902, 905,909 (S.D.N.Y. 1996) (issuing preliminary injunction prohibiting the reduction of 27 "personal care" home care services such as "assistance with personal hygiene, dressing, feeding and

28
22

Plaintiffs' Motion for a Preliminary Injunction; Memorandum in Support, Case No. C09-02306 CW

Case4:09-cv-02306-CW Document5 Filed06/04/09 Page30 of 32

1 housekeeping"); see also Crabtree, 2008 WL 5330506, at *30 (finding irreparable injury would result

2 from cuts in home care services because "institutionalization will cause Plaintiffs to suffer injury to their

3 mental and physical health, including a shortened life, and even death for some Plaintiffs"); Long v.

4 Benson, 2008 WL 4571903, at *2 (N.D. Fla. Oct. 14,2008) (finding irreparable harm would result if

5 plaintiff were forced out of home-based care and into nursing home because would "inflict an enormous

6 psychological blow" and "because of the very substantial difference in Mr. Griffin's perceived quality of

7 life in the apartment as compared to the nursing home"); cf LaForest v. Former Clean Air Holding Co.,

8 Inc., 376 F.3d 48,55-56 (2d Cir. 2004) (affirming preliminary injunction prohibiting reduction of retiree

9 health benefits, including increased cost of prescription medications, because would pose "substantial

10 risk to plaintiffs' health"); Lopez v. Heckler, 713 F.2d 1432, 1437 (9th Cir. 1983) ("[B]ecause the

11 members of plaintiffs' class are largely infirm and disabled, their resources and life spans are by

12 definition extremely limited. Deprivation of [Social Security disability] benefits pending trial might

13 cause economic hardship, suffering or even death."); Beltran v. Meyers, 677 F.2d 1317, 1322 (9th Cir.

14 1982) (finding sufficient risk of irreparable injury when plaintiffs showed that absent injunction would

15 be denied "needed medical care").

16

Provider Plaintiffs: IHSS providers, including many of the members of the SEru Plaintiffs, are

17 also likely to suffer irreparable harm in the absence of an injunction. First, their wages will be reduced.

18 Where, as here, monetary damages would be unavailable to remedy a plaintiff's injury because of the

19 defendants' Eleventh Amendment immunity, the plaintiff will suffer irreparable harm from a monetary

20 loss. California Pharmacists, 563 F.3d at 849-52.

21

Second, the reduction of wages will force many providers - already barely living within their

22 means - to choose among equally important life necessities such as food, health care, and housing .

. 23 Blannon Decl, 1j[4(if wages reduced, family "would not be able to purchase basic things, like three

24 meal[s] a day and it would be difficult to pay rent"; also, affording provider's diabetes medication

25 "would be much harder ifthe wages were lowered"); Figueroa Decl.1j[4 (provider would no longer be

26 able to pay for her own health care or make mortgage payments); 1. Brown Decl.1j[11 (provider and

27 consumer/son "could end up losing ... home" and she "will be forced to live in my car because Ihave

28
23

Plaintiffs' Motion for a Preliminary Injunction; Memorandum in Support, Case No. C09-02306 CW

Case4:09-cv-02306-CW Document5 Filed06/04/09 Page31 of 32

1 no alternative housing"); Cerqua Decl. ,-rS(provider and daughter/consumer could "lose our housing"

2 and provider "would lose the ability to pay for health care"); Madanat Decl. ,-rS("[I]t would become

3 extremely difficult to pay for food, clothing, utilities, and rent"); A. Martinez Decl. ,-r6(provider and

4 husband/consumer would have to leave current apartment); Rae Decl. ,-rS(family "would not be able to

5 afford to stay in our home"); Robinson Decl. ,-r5(family "could lose the house that we live in" and

6 provider "do[es] not know how Iwould be able to afford health care, which I currently pay for myself');

7 Durham Decl. at 2 (provider would be unable to afford necessary arthritis prescriptions).

8

This type of harm is plainly irreparable. See LaForest, 376 F.3d at 55 (finding irreparable injury

9 where challenged action would cause "(1) substantial risk to plaintiffs' health; (2) severe financial

10 hardship; (3) the inability to purchase life's necessities; and (4) anxiety associated with uncertainty");

11 Beltran, 677 F.2d at 1322 (same, when plaintiffs showed that absent injunction would be denied "needed

12 medical care"); United Steelworkers of Am. v. Textron, Inc., 836 F.2d 6,8 (lst Cir. 1987) (affirming

13 district court's finding of irreparable harm because plaintiffs "would likely suffer emotional distress,

14 concern about potential financial disaster, and possibly deprivation oflife's necessities"); Garrett v. City

15 of Escondido, 465 F.Supp.2d 1043, 1052 (S.D.Cal. 2006) (threat of lost housing is irreparable harm).

16

B. The Balance Of Hardships Tips Strongly In Plaintiffs' Favor

17

In contrast to the harm likely to befall Plaintiffs and class members - decreased medical care,

18 loss of housing, severe emotional distress - Defendants' sole injury will be the financial costs associated

19 with continuing to participate in current IHSS provider wages for the modest period of time until this

20 case can be heard on the merits.

21

As an initial matter, Plaintiffs have demonstrated that the wage cuts are likely to cost the State

22 tens of millions of additional dollars, calling into question the existence or extent of any purported

23 financial injury. See supra at 10.16 In any event, even assuming that Defendants will incur some

24 financial loss, this loss does not outweigh the hardship that Plaintiffs would suffer absent an injunction:

25

26

27

16 Moreover, the federal ARRA included significant funds for California's Medi-Cal program:

The state Director of Finance has estimated that the State will receive $6.6 billion in federal stimulus

28 money for Medi-Cai. PI. RJN, Ex. Mat 23.

24

Plaintiffs' Motion for a Preliminary Injunction; Memorandum in Support, Case No. C09-02306 CW

Case4:09-cv-02306-CW Document5 Filed06/04/09 Page32 of 32

1

[T]he physical and emotional suffering shown by plaintiffs in the record ... is far more

compelling than the possibility of some administrative inconvenience or monetary loss to

2

the government. . .. Faced with such a conflict between financial concerns and

preventable human suffering, we have little difficulty concluding that the balance of

3

hardships tips decidedly in plaintiffs' favor.

4 Lopez, 713 F.2d at 1437; see also Golden Gate Restaurant Ass 'n v. City & County of San Francisco, 512

5 F.3d 1112, 1126 (9th Cir. 2008) ("While the City's and Association's injuries are entirely economic, the

6 Intervenors' injuries include preventable human suffering. Therefore, the balance of hardships tips

7 sharply in favor of the parties seeking relief. "),

8

c. The Public Interest Sharply Favors Granting Relief

9

Finally, the public interest weighs heavily in favor of granting relief to Plaintiffs and the class.

10 The public interest analysis requires "[t]he government [to] be concerned not just with the public fisc but

11 also with the public weal." Lopez, 713 F.2d at 1437. "Our society as a whole suffers when we neglect

12 the poor, the hungry, the disabled .... " Id. Accordingly, it is beyond dispute that the public interest

13 weighs heavily in favor of granting relief:

14

It would be tragic, not only from the standpoint of the individuals involved but also from

the standpoint of society, were poor, elderly, disabled people to be wrongfully deprived of

15

essential benefits for any period of time. It would be unfortunate, but far less hannful to

society, were the government to succeed in overturning the preliminary injunction but be

16

unable to recoup all or a portion of the funds.

17 Id. at 1437-38.

18

CONCLUSION

19

For the foregoing reasons, Plaintiffs' motion for a preliminary injunction should be granted.

l, 20 Dated: June

2009

Respectfully submitted

21

STEPHEN P. BERZON

SCOTT KRONLAND

22

STACEY M. LEYTON

PEDER 1. THOREEN

23

ANNE N. ARKUSH

Altshuler Berzon LLP

24

25

By: lsi StaceY M Levton

Stacey M. Leyton

26

Attorneys for Plaintiffs

27

28
25

Plaintiffs' Motion for a Preliminary Injunction; Memorandum in Support, Case No. C09-02306 CW

 
 Case4:09-cv-02306-CW Document55 Filed06/04/09 Page1 of 7

1 STEPHEN P. BERZON (SBN 46540) SCOTT A. KRONLAND (SBN 171693)
2 STACEY M. LEYTON (SBN 203827)
PEDERJ. THOREEN (SBN 217081)
3 ANNE N. ARKUSH (SBN 254985)
Altshuler Berzon LLP
4 177 Post Street, Suite 300
San Francisco, California 94108
5 Telephone: (415) 421-7151
Facsimile: (415) 362-8064 6 sberzon@altshulerberzon.com
skronland@altshulerberzon.com 7 sleyton@altshulerberzon.com
pthoreen@altshu1erberzon.com
8 aarkush@altshulerberzon.com

9 Attorneys for Plaintiffs

]O

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

11

SAN FRANCISCO/OAKLAND DMSION

12 MIKESHA MARTINEZ. by and through her

) Case No. C 09-02306 CW

husband and next friend Carlos Martinez, LYDIA )

13 DOMINGUEZ, ALEX BROWN. by and through )

his mother and next friend Lisa Brown, DONNA ) CLASS ACTION

14 BROWN. CHLOE LIPTON, by and through her )

conservator and next friend Julie Weissman-

) PLAINTIFFS' EX PARTE MOTION TO

15 Steinbaugh, HERBERT M. MEYER. LESLIE

) SHORTEN TIME FOR MOTION FOR A

GORDON, CHARLENE AYERS. WILLIE

) PRELIMINARY INJUNCTION SO THAT

16 BEATRICE SHEPPARD. and ANDY

) RELIEF CAN BE GRANTED BEFORE

MARTINEZ, on behalf of themselves and a class ) JULY 1, 2009, OR, IN THE

17 of those similarly situated; SERVICE

) ALTERNATIVE, FOR A TEMPORARY

EMPLOYEES INTERNATIONAL UNION

) RESTRAINING ORDER PENDING A

18 UNITED HEALTHCARE WORKERS WEST; ) RULING ON PRELIMINARY

SERVICE EMPLOYEES INTERNATIONAL

) INJUNCTION

19 UNION UNITED LONG~ TERM CARE

)

WORKERS; SERVICE EMPLOYEES

)

20 INTERNATIONAL UNION LOCAL 521; and ) .

SERVICE EMPLOYEES INTERNATIONAL

)

21 UNION CALIFORNIA STATE COUNCIL.

)

)

22

Plaintiffs.

)

)

23

v.

)

24 ARNOLD SCHWARZENEGGER, Governor of ~

the State of California; JOHN A. WAGNER,

)

25 Director ofthe California Department of Social )
Services; DAVID MAXWELL-JOLLY. Director »)
26 of the California Department of Health Care

Services; JOHN CHIANG, California State

)

27 Controller; FRESNO COUNTY; and FRESNO )

COUNTY IN-HOME SUPPORTIVE SERVICES )

28 PUBLIC AUTHORITY,

)

)

Defendants.

)

--------------

)

Case4:09-cv-02306-CW Document55 Filed06/04/09 Page2 of 7

1

Pursuant to Local Rule 6-3, Plaintiffs hereby move this Court for an ex parte order shortening the

2 time in which to hold a hearing on their Motion for a Preliminary Injunction to permit the Court,to grant

3 relief prior to July 1,2009.1 In the alternative, if the Court is unable to hear the preliminary injunction

4 motion and issue a ruling by July I, Plaintiffs move for a temporary restraining order pending a ruling

5 on the preliminary injunction motion.

6

Absent such relief) the challenged actions in this case will take effect on July 1,2009, reducing

7 the wages paid to In-Home Supportive Services ("IHSS") providers who provide in-home assistance to

8 low-income elderly and disabled individuals through California's Medi-Cal program. These wage cuts

9 will cause immediate and substantial harm to some of California's most vulnerable populations,

mss 10 including both IHSS providers and the IHSS consumers for whom they care.

providers will suffer

II significant losses in wages, which may not be remedied after the fact because of the State's

12 _constitutional immunity. In addition, many IHSS providers will be forced to reduce their hours or quit

13 their jobs altogether, and many IHSS conswners will be forced into institutional facilities or will remain

14 in their homes and go without much-needed care, at serious risk to their health and well-being.

15

I.

16

In this action, Plaintiffs seek an injunction prohibiting the State's implementation of California

17 Welfare and Institutions Code Section 12306.I(d)(6) e'Section 12306.1(d)(6)")~ which will reduce the

18 maximum amount of the wages and benefits of illS S providers for which the State will share costs by

19 two dollars per hour. Section 12306. 1(d) (6) will, absent relief by this Court, become effective on July 1,

20 2009. Plaintiffs also seek an injunction prohibiting Defendants Fresno County and the Fresno County

21 IHSS Public Authority from implementing a reduction in the wages and benefits of IHSS providers

22 effective July 1,2009, Plaintiffs contend that the challenged conduct will violate the Medicaid Act, 42

23 U.S.C. §1396a(a)(30)(A), the Americans with Disabilities Act, 42 U.S.c. §12132, and the Rehabilitation

24 Act, 29 U.S.C. §794(a).

25

California's IHSS program provides assistance with the tasks of daily living - for example,

26 bathing, dressing, feeding, and bowel and bladder care - to low-income elderly and/or disabled persons

27
28 ~6.

1 Plaintiffs' attempts to obtain a stipulation to the time change were unsuccessful. Leyton Decl.

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Case4:09-cv-02306-CW Document55 Filed06/04/09 Page3 of 7

1 "who cannot safely remain in their homes or abodes of their own choosing unless these services are 2 provided." Cal. Welf. & Inst. Code §12300. By providing this assistance, the rnss program prevents

3 the unnecessary institutionalization of these individuals.

4

The IHSS program is administered by counties, but individual consumers hire and fire their own

5 providers. Id: §12301.6. Consumers can have difficulty finding IHSS providers) in part because of the

6 nature of the work, which is often difficult and can be unpleasant, See, e.g., Bi110ps Decl. ~2; Calhoun

7 Decl. ~8;Weissman-Steinbaugh Decl, ~6.2

8

The rates paid to IHSS providers vary by county and are funded by a combination of federal,

9 state, and county funds. The State has delegated to the counties the authority to propose a rate, but the

10 rates are subject to, and do not take effect without, approval by the State. Id: §12306.l(a)-(b); PI. RJN,

11 Ex. N. The federal government pays a certain percentage; of the remaining cost, the county pays 35

12 percent and the state pays 65 percent up to the current statutory cap of$12.l0 per hour, above which the

13 State will not share any of the costs. Cal. Welf. & Inst. Code §§12306, 12306.l(c)-(d).

14

Section 12306.1 (d)(6) will, effective July 1, 2009, reduce that statutory cap by two dollars, to

15 $10.10 ($9.50 in wages and $.60 in benefits). At present, IHSS providers in many counties are paid

16 wages that exceed $9.50 per hour and/or a combination of wages and benefits that exceed $10.10 per

17 hour. Golubock Decl., Ex. B.

18

II.

19

Plaintiffs filed this action as soon as it became clear that legal action was necessary to prevent

20 the devastating IHSS wage cuts. When Section 12306. I (d)(6) was enacted, the Legislature provided that

21 the cuts - along with several other budget cuts and tax increases - would not take effect if the Treasurer

22 and the Director of Finance determined that California would receive a certain amount of federal

23 stimulus funds. See Cal. Gov't Code §99030; Budget Act of 2009, Senate Bill X3 No. I, §8.30. The

24 determination that the requisite amount offunds would not be received was made on March 27,2009.

25 PI. RJN, Exs. L, M. The California Department of Social Services C'CDSS"), which administers the

26

27

2 With the exception of the Declaration of Stacey Leyton, all citations to supporting papers refer

28 to papers submitted in support of Plaintiffs' Motion For A Preliminary Injunction, filed today under
separate cover.

2

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Case4:09-cv-02306-CW Document55 Filed06/04/09 Page4 of 7

1 lHSS program, subsequently notified the counties that any county currently paying wage and benefit

2 rates above the newly reduced maximum amount must, by June 1,2009, submit a request to reduce this

3 amount to ensure approval of the requested rate prior to July 1, 2009, the effective date of Section

4 12306. 1(d)(6). PI. RJN, Exs. N, O.

5

Although the Treasurer and Director of Finance issued their determination at the end of April

6 2009, the fate of Section 12306.1 (d)(6) still remained unclear. On May 5,2009, an official at the U.S.

7 Department of Health and Human Services (HHHS") issued a letter concluding that implementation of

8 Section 12306.l(d)(6) would violate a provision oftbe American Recovery and Reinvestment Act of

9 2009 ("ARRA"). Golubock Decl., Ex. D. On May 20, 2009, however, another HHS official overruled 10 this determination, thereby clearing the way for Section 12306. 1(d) (6) to take effect. ld., Ex. E.

11 Plaintiffs filed this lawsuit a few days later.

12

At least 12 counties that currently pay wages greater than $9.50 per hour have submitted, by the

13 June 1,2009 deadline, Rate Change Requests to CDSS to reduce those wages effective July 1,2009,

14 making clear that imminent harm will result if Section 12306. 1(d)(6) is not enjoined. McDevitt Decl,

15 "2-4 & Ex. A; Nam Decl. '~2, 4-6, 9; Roth Decl. 114(b), 5(a), (b), (e), 6. Plaintiffs filed the pending

16 preliminary injunction motion three days after the State's June 1 deadline for submission of Rate

17 Change Requests.

18

HI.

19

Plaintiffs' preliminary injunction motion demonstrates that the wage cuts must be enjoined

20 because they contravene federal law in a several ways. As a threshold matter, they violate procedural

21 requirements of the Medicaid Act. See 42 U.S.C. §1396a(a)(30)(A). In April of this year, the Ninth

22 Circuit re-affirmed that, when the State seeks to change payment rates under the Medi-Cal program, the 23 Medicaid Act requires that it first conduct a reasoned analysis of the impact of those cuts to ensure that

24 they are consistent with the level of care required under the Act. See California Pharmacists Ass'n v.

25 Maxwell-Jolly, 563 F.3d 847 (9th Cir. 2009). Under this clear Ninth Circuit precedent, cuts enacted for

26 purely budgetary reasons violate the Act. Because the Defendants failed to conduct any analysis of the

27 impact of the cuts at issue prior to their enactment, the cuts must be enjoined.

28 3

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Case4:09-cv-02306-CW Document55 Filed06/04/09 Page5 of 7

1

That dispositive threshold point aside, the cuts also violate the Medicaid Act's substantive

2 guarantees of access to services and quality of care because the rates were not set to ensure IHSS

3 recipients will have adequate access to quality in-home assistance and they will have difficulty finding

4 providers at the reduced rates, See 42 U.S.C. §1396a(a)(30)(A). The cuts also constitute unlawful
mss 5 discrimination under the Americans with Disabilities Act ("ADA") and Rehabilitation Act: Some

6 consumers will be unable to fmd providers at the reduced rates, which will force disabled individuals

7 who are otherwise capable of living in their own homes into institutional facilities to obtain the services

8 now provided through the IHSS program .. See 42 U.S.C. §12132; 29 U.S.C. §794(a); Olmstead v. L'C.

9 ex rei. Zimring, 527 U.S. 581 (1999).

10

As explained in Plaintiffs' Memorandum in Support of Motion for a Preliminary Injunction and

11 and dozens of supporting declarations from IHSS providers, IHSS consumers, and experts in public

12 health and economics, IHSS providers and consumers will be substantially harmed if relief is not granted

13 before July 1, 2009. In many counties that currently pay wages and/or benefits above the newly reduced

14 maximum amount, Section 12306.1 (d) (6) will, absent relief from this Court. cause IHSS providers'

15 wages and benefits to drop significantly from their current levels. IHSS providers. many of whom are

16 already barely subsisting on their current wages, will suffer from this reduction in wages. Those who

17 elect to remain IHSS providers may be forced to choose between paying for food, housing, or health

18 care. And the Eleventh Amendment will preclude this Court from ordering monetary relieffor an

19 unlawful wage cut after the fact.

20

In addition, IHSS consumers will suffer if the cuts are not enjoined. Many providers will leave

21 IHSS service for other work, forcing consumers - who will be unable to find replacement providers at

22 the reduced wage rate - to be deprived of critical IHSS services or be forced into nursing homes.

23

IV.

24

Because the challenged action will take effect on July 1, 2009, several days prior to the earliest

25 hearing date for Plaintiffs' preliminary injunction motion under the regulart schedule, Plaintiffs hereby

26 move to shorten time for a hearing for Plaintiffs' Motion for aA Preliminary Injunction. Plaintiffs

27 request a schedule that would, if the Court concludes that Plaintiffs' Motion For A Preliminary

28 Injunction should be granted, permit the Court to order relief prior to July 1,2009. Because lead

4

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Case4:09-cv-02306-CW Document55 Filed06/04/09 Page6 of 7

1 counsel for Plaintiffs will be out of town from June 18-24 (Leyton Decl, '8)~ Plaintiffs respectfully

2 request that the Court not set a hearing during that time period.

3

Plaintiffs propose the following schedule:

4

Defendants' opposition papers due June 18~2009. (This would give the defendants the

5

same two weeks to file an opposition that they would have under the regular motion schedule.)

6

Plaintiffs' reply papers due June 24, 2009

7

Hearing date June 26,2009.

8

v.

9

lfthe Court's calendar does not permit the Court to hold a hearing and rule on the Motion for a

10 Preliminary Injunction before July 1,2009, then, Plaintiffs request, in the alternative, that the Court

11 issue a temporary restraining order, pending a hearing on the preliminary injunction motion, that

12 prohibits Defendants from implementing California Welfare and Institutions Code §12306.1(d)(6),

13 including by approving or implementing any county IHSS rate decreases adopted pursuant to Section

14 12306. 1(d)(6). As demonstrated by Plaintiffs' Motion for a Preliminary Injunction and the supporting

15 declarations and exhibitst, the standards for issuance of a temporary restraining order - a likelihood of

16 success on the merits. a likelihood of irreparable harm in the absence of preliminary relief, that the

17 balance of equities tips in their favor, and that an injunction is in the public interest - are easily met here.

18 See Am. Trucking Ass'ns, Inc. v. City of Los Angeles, 559 FJd 1046, 1052 (9th Cu. 2009).

19

CONCLUSION

20

For the foregoing reasons, the Court should grant Plaintiffs' motion to shorten time and set a

21 schedule so that the Court can hear and rule on the preliminary injunction motion prior to July I, 2009

22 or, in the alternative, the Court should issue a temporary restraining order pending its ruling on the

23 preliminary injunction motion ..
24 II 25 /I 26 /I 27 II

28 5

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Case4:09-cv-02306-CW Document55 Filed06/04/09 Page7 of 7

i, 1 Dated: June 2009
2 3 4 5 6 7 8

Respectfully submitted,
STEPHEN P. BERZON (SBN 46540) SCOTT KRONLAND (SBN 171693) STACEY M. LEYTON (SBN 203827) PEDER 1. THOREEN (SBN 217081) ANNE N. ARKUSH (SBN 254985) Altshuler Berzon LLP
By: -lsi Stacey M Ley ton
Stacey M. Leyton
Attorneys for Plaintiffs

9

10

11

12

13

14

15

16

17

18

19 20

21

22

23

24

25

26

27

28
6

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 Case4:09-cv-02306-CW Document73 Filed06/11/09 Page1 of 3

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
MCCORMICK, BARSTOW, SHEPPARD, W AYTE & CARRUTH LLP
5 RIVER PARK PLACE EAST FRESNO, CA 93720-1501

Michael G. Woods, # 58683 Timothy J. Buchanan, # 100409 McCORMICK, BARSTOW, SHEPPARD,
WAYTE & CARRUTH LLP P.O. Box 28912 5 River Park Place East Fresno, CA 93720-1501 Telephone: (559) 433-1300 Facsimile: (559) 433-2300

(SPACE BELOW FOR FILING STAMP ONLY)

Attorneys for Defendants COUNTY OF FRESNO and FRESNO COUNTY INHOME SUPPORTIVE SERVICES PUBLIC AUTHORITY

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO/OAKLAND DIVISION

MIKESHA MARTINEZ, et al., Plaintiffs,
v. ARNOLD SCHWARZENEGGER, Governor of the State of California; JOHN A. WAGNER, Director of the California Department of Social Services; DAVID MAXWELL-JOLLY, Director of the California Department of Health Care Services; JOHN CHIANG, California State Controller; COUNTY OF FRESNO; and FRESNO COUNTY IN-HOME SUPPORTIVE SERVICES PUBLIC AUTHORITY,
Defendants.

Case No. C 09-02306 CW OBJECTIONS TO THE DECLARATION OF JOHN F. SCHNELLE HEARING: DATE: June 25, 2009 TIME: 2:00 p.m. CRTRM: 2

Defendants COUNTY OF FRESNO and FRESNO COUNTY IN-HOME SUPPORTIVE SERVICES PUBLIC AUTHORITY (collectively, the "County"), by and through their attorney of record, hereby asserts the following objections to the Declaration of John F. Schnelle.
Objection is made to the Declaration in its entirety. Courts have carefully scrutinized expert witness declarations to determine whether they contain the appropriate background,
OBJECTIONS TO THE DECLARATION OF JOHN SCHNELLE

Case4:09-cv-02306-CW Document73 Filed06/11/09 Page2 of 3

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MCCORMICK, BARSTOW, SHEPPARD, W AYTE & CARRUTH LLP
5 RIVER PARK PLACE EAST FRESNO, CA 93720-1501

experience, analysis and data to garner admissibility. In that regard, Federal Rule of Evidence Rule 702, states:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case. The Court has long held that, in determining the admissibility of expert testimony, the Court must assess (1) whether the witness is qualified; and (2) whether the testimony can assist the trier of fact. (McKendall v. Crown Control Corp., 122 F.3d 803, 805-806 (9th Cir. 1997).) Importantly, the proponent of expert testimony bears the burden of establishing its admissibility by a preponderance of the evidence. (FRE Rule 702 advisory committee's note.) It is fundamental that expert testimony must be based on facts legally sufficient to provide a basis for the expert's opinion; thus, an expert should not be permitted to give an opinion that is based on conjuncture or speculation from an insufficient evidentiary foundation. (Damon v. Sun Co., 87 F.3d 1467, 1474 (1st Cir. 1996).) In speaking to the admissibility of expert testimony, the United States Supreme Court has declared that the "focus, of course, must be solely on principals and methodology, not on the conclusions they generate." (Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 595 (1993).) While certain data and writings can be relied upon by an expert in rendering an opinion, there must be a foundation to establish the reliability of any information contained within these writings. (FRE Rule 702, 703.) In particular, the proponent of the testimony must show that the facts and evidence are of a type reasonably relied upon by experts in the particular field and that the probative value of the underlying data substantially outweighs its prejudicial effect. (Turner v. Burlington Northern Santa Fe R.R. Co., 338 F.3d 1058, 1061 (9th Cir. 2003).) Here, the Declaration of Mr. Schnelle sets forth his various credentials dealing with research on nursing home care and long term care policy issues. In doing so, however, the declaration makes clear that a great deal of the research upon which he relies is outdated and has
2
OBJECTIONS TO THE DECLARATION OF JOHN SCHNELLE

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MCCORMICK, BARSTOW, SHEPPARD, W AYTE & CARRUTH LLP
5 RIVER PARK PLACE EAST FRESNO, CA 93720-1501

no relevancy to the County. Specifically, the research relied upon by Mr. Schnelle was conducted at least two years, and in most instances over five years old, thereby making his entire Declaration objectionable. (Buchanan v. Consol Stores Corp., 217 FRD 178, 196 (2003, D.C.M.D.), relying on Kumho Tire Co. Ltd. v. Carmichael 526 U.S. 137 (1999).)
Likewise, Mr. Schnelle has not demonstrated that he is qualified to render opinions regarding the care in identified nursing homes and care provided in the County. Specifically, his declaration is void of any experience or research that he has reviewed or conducted with respect to the County. Thus, his sweeping conclusions are unfounded and are speculative. (FRE Rule 702; Casper v. S & G, 389 F.Supp. 2d 618, 621-623 (D.N.J. 2005).)
Finally, Mr. Schnelle’s overreaching opinions about all nursing homes clearly lacks foundation and there is no evidence presented in the Declaration to support these conclusions; thus those conclusions should be stricken. (Daubert, supra 509 U.S. at 595.)
Therefore, and based on the above, Mr. Schnelle’s Declaration should be stricken in its entirety.

Dated: June 11, 2009

McCORMICK, BARSTOW, SHEPPARD, WAYTE & CARRUTH LLP

29253/00173-1406317.v1

By: /s/ Michael G. Woods Michael G. Woods Timothy J. Buchanan
Attorneys for Defendants COUNTY OF FRESNO and FRESNO COUNTY IN-HOME SUPPORTIVE SERVICES PUBLIC AUTHORITY

3
OBJECTIONS TO THE DECLARATION OF JOHN SCHNELLE

 
 Case4:09-cv-02306-CW Document74 Filed06/11/09 Page1 of 2

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
MCCORMICK, BARSTOW, SHEPPARD, W AYTE & CARRUTH LLP
5 RIVER PARK PLACE EAST FRESNO, CA 93720-1501

Michael G. Woods, # 58683 Timothy J. Buchanan, # 100409 McCORMICK, BARSTOW, SHEPPARD,
WAYTE & CARRUTH LLP P.O. Box 28912 5 River Park Place East Fresno, CA 93720-1501 Telephone: (559) 433-1300 Facsimile: (559) 433-2300

(SPACE BELOW FOR FILING STAMP ONLY)

Attorneys for Defendants COUNTY OF FRESNO and FRESNO COUNTY INHOME SUPPORTIVE SERVICES PUBLIC AUTHORITY

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO/OAKLAND DIVISION

MIKESHA MARTINEZ, et al., Plaintiffs,
v. ARNOLD SCHWARZENEGGER, Governor of the State of California; JOHN A. WAGNER, Director of the California Department of Social Services; DAVID MAXWELL-JOLLY, Director of the California Department of Health Care Services; JOHN CHIANG, California State Controller; COUNTY OF FRESNO; and FRESNO COUNTY IN-HOME SUPPORTIVE SERVICES PUBLIC AUTHORITY,
Defendants.

Case No. C 09-02306 CW OBJECTIONS TO DECLARATION OF JUSZTINA TRAUM HEARING: DATE: June 25, 2009 TIME: 2:00 p.m. CRTRM: 2

Defendants COUNTY OF FRESNO and FRESNO COUNTY IN-HOME SUPPORTIVE SERVICES PUBLIC AUTHORITY (collectively, "the County"), by and through their attorneys of record, hereby asserts the following objections to the Declaration of Jusztina Traum.
Objection is made to the entire declaration on the grounds that it contains statements that violate the hearsay rule as out of court statements cannot be introduced for the truth of the matters
OBJECTIONS TO DECLARATION OF JUSZTINA TRAUM

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MCCORMICK, BARSTOW, SHEPPARD, W AYTE & CARRUTH LLP
5 RIVER PARK PLACE EAST FRESNO, CA 93720-1501

asserted. (FRE Rule 801.) Likewise, the purported statements made by the declarant lack foundation. (A.I. Credit Corp. v. Legion Ins. Co., 265 F.3d 630, 637 (7th Cir. 2001).) The declaration is entirely speculative and there are no documents to substantiate the alleged conversations or the purported rates set forth in the declaration. (FRE Rule 801; Slevin v. Home Depot, 120 F. Supp 2d. 822, 835-836 (N.D. Cal. 2000) [stating that a declaration based on speculation is irrelevant and should not be considered].) Therefore, the entire declaration should be stricken.

Dated: June 11, 2009
29253/00173-1405709.v1

McCORMICK, BARSTOW, SHEPPARD, WAYTE & CARRUTH LLP
By: /s/ Michael G. Woods Michael G. Woods Timothy J. Buchanan
Attorneys for Defendants COUNTY OF FRESNO and FRESNO COUNTY IN-HOME SUPPORTIVE SERVICES PUBLIC AUTHORITY

2
OBJECTIONS TO DECLARATION OF JUSZTINA TRAUM

 
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
MCCORMICK, BARSTOW, SHEPPARD, W AYTE & CARRUTH LLP
5 RIVER PARK PLACE EAST FRESNO, CA 93720-1501

Michael G. Woods, # 58683 Timothy J. Buchanan, # 100409 McCORMICK, BARSTOW, SHEPPARD,
WAYTE & CARRUTH LLP P.O. Box 28912 5 River Park Place East Fresno, CA 93720-1501 Telephone: (559) 433-1300 Facsimile: (559) 433-2300

(SPACE BELOW FOR FILING STAMP ONLY)

Attorneys for Defendants COUNTY OF FRESNO and FRESNO COUNTY INHOME SUPPORTIVE SERVICES PUBLIC AUTHORITY

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO/OAKLAND DIVISION

MIKESHA MARTINEZ, et al., Plaintiffs,
v. ARNOLD SCHWARZENEGGER, Governor of the State of California; JOHN A. WAGNER, Director of the California Department of Social Services; DAVID MAXWELL-JOLLY, Director of the California Department of Health Care Services; JOHN CHIANG, California State Controller; COUNTY of FRESNO; and FRESNO COUNTY IN-HOME SUPPORTIVE SERVICES PUBLIC AUTHORITY,
Defendants.

Case No. C 09-02306 CW OBJECTIONS TO DECLARATION OF CANDACE HOWES
HEARING: DATE: June 25, 2009 TIME: 2:00 p.m. CRTRM: 2

Defendants COUNTY OF FRESNO and FRESNO COUNTY IN-HOME SUPPORTIVE SERVICES PUBLIC AUTHORITY (collectively, "the County"), by and through their attorneys of record, hereby asserts the following objections to the Declaration of Candace Howes. /// ///
OBJECTIONS TO DECLARATION OF CANDACE HOWES

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MCCORMICK, BARSTOW, SHEPPARD, W AYTE & CARRUTH LLP
5 RIVER PARK PLACE EAST FRESNO, CA 93720-1501

I. THE DECLARATION OF CANDACE HOWES SHOULD BE STRICKEN IN ITS
ENTIRETY Objection is made to the Declaration in its entirety. Courts have carefully scrutinized expert witness declarations to determine whether they contain the appropriate background, experience, analysis and data to garner admissibility. In that regard, Federal Rule of Evidence Rule 702, states:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case. The Court has long held that, in determining the admissibility of expert testimony, the Court must assess (1) whether the witness is qualified; and (2) whether the testimony can assist the trier of fact. (McKendall v. Crown Control Corp., 122 F.3d 803, 805-806 (9th Cir. 1997); See also, Burkhart v. Washington Metro. Area Transit Auth., 112 F.3d 1207, 1211 (U.S. App. D.C. 1997).) The proponent of expert testimony bears the burden of establishing its admissibility by a preponderance of the evidence. (FRE Rule 702 advisory committee's note.) An expert’s opinion must be based on fact and opinions which are mere speculation are improper. (Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-248 (1986).) “Without more than credentials and a subjective opinion, an expert's testimony that ‘it is so’ is not admissible.” (Viterbo v. Dow Chem. Co., 826 F.2d 420, 424 (5th Cir. 1988).) Expert declarations have been rejected by the Court when they are “full of assertion but empty of facts and reason”, as the Court must “look behind [the expert's] ultimate conclusion ... and analyze the adequacy of its foundation.” (Matrix Motor Co. v. Toyota Jidosha Kabushiki Kaisha, 290 F. Supp. 2d 1083, 1097 (S.D. Cal. 2003), quoting Richardson v. Richardson-Merrell, Inc., 857 F.2d 823, 829-32 (D.C. Cir. 1988).) It is fundamental that expert testimony must be predicated on facts legally sufficient to provide a basis for the expert's opinion; thus, an expert should not be permitted to give an opinion
2
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MCCORMICK, BARSTOW, SHEPPARD, W AYTE & CARRUTH LLP
5 RIVER PARK PLACE EAST FRESNO, CA 93720-1501

that is based on conjecture or speculation from an insufficient evidentiary foundation. (Damon v. Sun Co., 87 F.3d 1467, 1474 (1st Cir. 1996).) In speaking to the admissibility of expert testimony, the United States Supreme Court has declared that the “focus, of course, must be solely on principles and methodology, not on the conclusions they generate." (Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 595 (1993).) In Kumho Tire Co. Ltd. v. Carmichael, 526 U.S. 137 (1999), the United States Supreme Court held that Daubert's general holding – setting forth a trial judge's general “gate keeping” obligation – applies not only to testimony based on “scientific” knowledge, but also testimony based on other specialized knowledge. (Id. at 141-142.)
While certain data and writings can be relied upon by an expert in rendering an opinion, there must be a foundation to establish the reliability of any information contained within those writings. (FRE Rule 702, 703.) In particular, the proponent of the testimony must show that the facts and evidence are of a type reasonably relied on by experts in the particular fields, and that the probative value of the underlying data substantially outweighs its prejudicial effect. (Turner v. Burlington Northern Santa Fe R.R. Co., 338 F.3d 1058, 1061 (9th Cir. 2003).)
Here, although Ms. Howes states that she has done some limited analysis of the effect of proposed cuts to the State of California's maximum IHSS compensation, Plaintiffs have failed to establish that she is qualified to render the opinions contained in her declaration, particularly with respect to the County of Fresno. As the Court has held, an economics professor’s opinion similar to Ms. Howes was properly excluded under Federal Rule of Evidence 702 because the opinions were not based upon facts and/or accepted scientific evidence. (Casper v. SMG, 389 F. Supp. 2d 618, 621-623 (D.N.J. 2005).) Here, it is clear that Ms. Howes is not qualified to offer any opinions as to the County because the data she relies upon do not relate to Fresno County. For example, the surveys she relies upon were conducted in the following counties: San Francisco, Los Angeles, Yolo, Yuba, Sutter, Sierra, Nevada, Plumas and Placer. [See Declaration, ¶¶ 12, 17; Appendix “B”.] By her own admission, none of the data was obtained from or about Fresno County. Therefore, her conclusions have no factual basis as to the County and should be stricken.
Furthermore, Ms. Howes’ statistical analysis and methodology are flawed. Specifically, 3
OBJECTIONS TO DECLARATION OF CANDACE HOWES

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5 RIVER PARK PLACE EAST FRESNO, CA 93720-1501

in her declaration, she compares the maximum amount of compensation provided to IHSS providers, although the declarations of various interested parties submitted in support of Plaintiffs’ Request demonstrates that the maximum compensation is not paid. [See Declarations of interested parties and potential class members.] Nonetheless, Ms. Howes’ conclusions fail to take into account this critical fact.
Ms. Howes also relies upon data that is irrelevant. In particular, all of her conclusions are based upon surveys that were conducted in 2005 when job prospects were more plentiful. Her reliance on this outdated and irrelevant data renders her entire Declaration objectionable. (Buchanan v Consol. Stores Corp., 217 FRD 178, 196 (DC Md, 2003), relying on Kumho Tire Co., supra, 526 U.S. 137; Pottenger v. Potlatch Corp., 329 F.3d 740, 747-748 (9th Cir. 2003) [finding that all variables must be taken into account when rendering an opinion]; Westberry v. Gislaved Gummi AB, 178 F.3d 257, 261 (4th Cir. 1999).) This is particularly true when her 2005 survey was not conducted in Fresno County. Although Ms. Howes makes reference to a 2009 “working paper” from Powers and Powers, the record is devoid of any evidence that this “working paper” considered Fresno County.
Further demonstrating the unreliability of the data Ms. Howes’ relies is the fact that there are currently, 450 active, qualified providers in Fresno County on the Physician Assistant registry maintained for Fresno County actively seeking work in IHSS. (See Declaration of Steve Sanchez, ¶5.) Of the 450 active, qualified providers, only 187 are working at least 30 hours per week. (Ibid.) In other words, there are 263 qualified providers who have no recipient or are looking for more hours. (Ibid.) Thus, it is clear, at least with respect to the County, that Ms. Howes’ data and analysis is flawed. As a result, based upon the incomplete and flawed data Ms. Howes’ conclusions are based, her Declaration should be stricken.
II. THE DECLARATION SHOULD ALSO BE STRICKEN BECAUSE IT WAS NOT
EXECUTED UNDER PENALTY OF PERJURY Federal Rule of Evidence Rule 43 provides that declarations are admissible so long as the testimony is given under penalty of perjury or a similar oath. Absent such an oath, the declaration, similar to testimony given at trial, is not admissible. (FRE Rule 43; See also, United
4
OBJECTIONS TO DECLARATION OF CANDACE HOWES

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
MCCORMICK, BARSTOW, SHEPPARD, W AYTE & CARRUTH LLP
5 RIVER PARK PLACE EAST FRESNO, CA 93720-1501

States v. Lightly (4th Cir. 1982) 677 F.2d 1027, 1028.) Based on the fact that Ms. Howes’ Declaration was not submitted under penalty of perjury, it should be stricken.
Notwithstanding the above, the County makes the following objections to specific paragraphs of Ms. Howes’ Declaration:
Paragraphs 5 and 6 Although Ms. Howes does not need to disclose her source of data, Federal Rule of Evidence Rule 705 entitles the County to cross-examine Ms. Howes regarding the source of such data and to challenge the same. (FRE Rule 705, Adv. Comm. Notes; Smith v. Ford Motor Co., 626 F.2d 784, 793 (10th Cir. 1980).) Considering Ms. Howes’ Declaration and these paragraphs before the County has the opportunity to cross-examine Ms. Howes would be improper. (Ibid.) Therefore, absent the opportunity for cross-examination, these paragraphs should be stricken. Paragraph 7 Ms. Howes’ conclusions are based upon surveys that were conducted in 2005 when job prospects were more plentiful, and thus her reliance on this outdated and irrelevant data renders these conclusions baseless. (Kumho Tire Co., supra, 526 U.S. 137; Pottenger, supra, 329 F.3d at 747-748.) Thus, this paragraph should be stricken. Paragraphs 11-23 The data relied upon by Ms. Howes admittedly was not based upon information derived from the County of Fresno. As a result, these paragraphs should be stricken according to Federal Rule of Evidence 702 because the opinions were not based on facts and/or accepted scientific evidence. (Casper, supra, 389 F. Supp. 2d at 621-623.) Paragraphs 26-27 Objection is made that this statement lacks foundation and is speculative. Ms. Howes does not identify what the information was that was provided to her by Altshuler Berzon LLP. Because the County is entitled to cross-examine Ms. Howes on those sources, these Paragraphs should be stricken, absent the opportunity to cross-examine Ms. Howes. (FRE Rule 705, Adv. Comm. Notes; Smith, supra 626 F.2d at 793.)
5
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
MCCORMICK, BARSTOW, SHEPPARD, W AYTE & CARRUTH LLP
5 RIVER PARK PLACE EAST FRESNO, CA 93720-1501

Paragraphs 29-79 These paragraphs contain Ms. Howes’ conclusions. As set forth above, the data in which she relies is irrelevant and unreliable. (FRE Rule 702; Casper, supra, 389 F. Supp. 2d at 621623.) Based upon this, all of her conclusions are unsubstantiated and should be stricken. (Kumho Tire Co., supra, 526 U.S. 137; Pottenger, supra, 329 F.3d at 747-748.)

Dated: June 11, 2009

McCORMICK, BARSTOW, SHEPPARD, WAYTE & CARRUTH LLP

29253/00173-1405653.v1

By: /s/ Michael G. Woods Michael G. Woods Timothy J. Buchanan
Attorneys for Defendant COUNTY OF FRESNO and FRESNO COUNTY IN-HOME SUPPORTIVE SERVICES PUBLIC AUTHORITY

6
OBJECTIONS TO DECLARATION OF CANDACE HOWES

 
 Case4:09-cv-02306-CW Document99 Filed06/15/09 Page1 of 12

1 EDMUND G. BROWN JR. Attorney General of California
2 SUSAN M. CARSON Supervising Deputy Attorney General
3 State Bar No. 135875 455 Golden Gate Avenue, Suite 11000
4 San Francisco, CA 94102-7004 Telephone: (415) 703-5580
5 Facsimile: (415) 703-5480 E-mail: susan.carson@doj.ca.gov
6 Attorneys for Defendants

7

8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE NORTHERN DISTRICT OF CALIFORNIA

10

11 MIKESHA MARTINEZ, by and through CV09-2306 (CW)

her husband and next friend Carlos

12 Martinez, LYDIA DOMINGUEZ, ALEX STATE DEFENDANTS’ OBJECTIONS TO

BROWN, by and through his mother and EVIDENCE FILED BY PLAINTIFFS IN

13 next friend Lisa Brown, DONNA BROWN, SUPPORT OF MOTION FOR

CHLOE LIPTON, by and through her

PRELIMINARY INJUNCTION

14 conservator and next friend Julie

Weissman-Steinbaugh, HERBERT M.

Date:

June 25, 2009

15 MEYER, LESLIE GORDON, CHARLENE Time:

2:00 p.m.

AYERS, WILLIE BEATRICE SHEPPARD, Dept:

2

16 and ANDY MARTINEZ, on behalf of

Judge

The Honorable Claudia Wilken

themselves and a class of those similarly

Trial Date: N/A

17 situated; SERVICE EMPLOYEES

Action Filed: 5/26/2009

INTERNATIONAL UNION UNITED

18 HEALTHCARE WORKERS WEST; et al,

19

Plaintiffs,

20

v.

21
ARNOLD SCHWARZENEGGER, 22 Governor of the State of California; JOHN
A. WAGNER, Director of the California 23 Department of Social Services; DAVID
MAXWELL-JOLLY, Director of the 24 California Department of Health Care
Services; JOHN CHIANG, California State 25 Controller; et al,

26

Defendants.

27

28

STATE DEFENDANTS’ OBJECTIONS TO EVIDENCE (CV09-2306 (CW))

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1

INTRODUCTION

2

State defendants Arnold Schwarzenegger, Governor of the State of California, John A.

3 Wagner, Director of the California Department of Social Services, David Maxwell-Jolly, Director

4 of the California Department of Health Care Services, and John Chiang, California State

5 Controller, object to the declarations and certain exhibits filed by plaintiffs in support of their

6 motion for preliminary injunction. State defendants hereby reserve their right to make other 7 objections in the future in addition to those set forth below. Without waiving any further

8 objections they might assert in the future, State defendants make the following objections to the

9 declarations and exhibits based on, among other grounds, Federal Rules of Evidence 402 10 (irrelevance), 602 (lack of personal knowledge), 701 (improper lay opinion), 702 (improper

11 expert testimony), 802 (hearsay), and 901 (lack of authentication).

12

GENERAL OBJECTIONS TO PLAINTIFFS’ DECLARATIONS AND EXHIBITS

13 I. DECLARATIONS BY IN-HOME SUPPORTIVE SERVICES (IHSS) CONSUMERS

14

State defendants generally object to the declarations submitted by IHSS consumers in

15 various counties on numerous grounds. Specific objections to the declarations submitted by

16 individual IHSS consumers are set forth in the chart below.

17

Portions of the IHSS consumer declarations lack personal knowledge (Fed. R. Evid. 602),

18 and are highly speculative, particularly with respect to statements regarding what might happen to

19 them if proposed cuts in provider wages are implemented. The declarations also lack foundation

20 and assume facts not in evidence. State defendants also object that portions of the consumer 21 declarations are irrelevant (Fed. R. Evid. 402), and are based on hearsay. Fed. R. Evid. 802. Also,

22 portions of the declarations contain improper lay opinion, because they set forth opinions or

23 inferences which are not rationally based on the witnesses’ perception. Fed. R. Evid. 701. In

24 addition, the declarants who have volunteered to serve as class representatives if the case is

25 treated as a class action improperly make the legal conclusion that the State’s proposed wage cut 26 will violate the rights of IHSS consumers.

27

28 1
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1 II. DECLARATIONS BY IHSS PROVIDERS

2

State defendants generally object to the declarations submitted by IHSS providers in

3 various counties on numerous grounds. Specific objections to the declarations submitted by

4 individual IHSS providers are set forth in the chart below.

5

In general, the IHSS provider declarations are objectionable because they lack personal

6 knowledge (Fed. R. Evid. 602), are irrelevant (Fed. R. Evid. 402), are based on hearsay (Fed. R.

7 Evid. 802), lack foundation, and consist of improper lay opinions. Fed. R. Evid. 701. The

8 declarations also are highly speculative, particularly with respect to providers’ statements

9 regarding what they might do if wages are decreased or what might happen to their clients.

10 III. DECLARATIONS SUBMITTED BY SERVICE EMPLOYEES INTERNATIONAL UNION (SEIU) EMPLOYEES, EXECUTIVES, AND OFFICIALS
11

12

State defendants also generally object to the declarations submitted by SEIU employees,

13 executives and officials. Specific objections to these declarations are set forth in the chart below.

14

Generally, the declarations lack personal knowledge (Fed. R. Evid. 602), lack foundation,

15 consist of hearsay (Fed. R. Evid. 802) and improper lay opinion (Fed. R. Evid. 701), and are

16 conclusory. Some of the declarations also are irrelevant. For example, the bulk of the declaration

17 of Dionne Jimenez focuses on the alleged additional costs to the State if more IHSS consumers

18 are placed in nursing homes, and, therefore, is irrelevant. Fed. R. Evid. 402. In addition, portions

19 of the declarations of Carol Golubock and Dionne Jimenez lack authentication. Fed. R. Evid. 901.

20 IV. DECLARATIONS BY PLAINTIFFS’ “EXPERTS”

21

State defendants generally object to the declarations by plaintiffs’ experts. Specifically,

22 State defendants have retained an expert, Timothy T. Brown, Ph.D, to review and comment upon

23 the declaration of plaintiffs’ expert Candace Howes, and Dr. Brown has submitted a declaration

24 in support of State defendants’ opposition to plaintiffs’ motion for preliminary injunction, setting

25 forth his conclusions. With respect to the other “expert” declarations plaintiffs submitted, based

26 on the limited information that State defendants have at this point regarding these other “experts”

27 and the extremely limited time they have had to review the declarations, State defendants reserve

28 2
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1 their right to further object based on Federal Rule of Evidence 702 and Daubert v. Merrell Dow

2 Pharmaceuticals, Inc., 509 U.S. 579, in subsequent stages of the litigation.

3

A. Declaration of Candace Howes

4

State defendants generally object to the Declaration of Candace Howes on the ground that

5 the statements and opinions in Dr. Howes’ declaration and exhibits do not meet the standards of

6 Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579,

7 589-593 (1993). The plaintiffs retained Candace Howes, Ph D., as an expert witness. Dr. Howes

8 purportedly analyzed the effect of proposed cuts to the State of California’s maximum IHSS

9 compensation match on average wages paid to IHSS providers, the turnover of IHSS providers,

10 and the implication for IHSS consumers. Howes Declaration, ¶ 3.

11

Federal Rule of Evidence 702 sets forth the requirements for expert testimony to be

12 admissible, including that the testimony be both relevant and reliable. Rule 702 was amended in

13 2000 in response to Daubert, 509 U.S. at 589-593, in which the Supreme Court ruled that trial

14 judges must act as gatekeepers to exclude unreliable and irrelevant expert scientific testimony,

15 and cases interpreting Daubert, such as Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147-149

16 (1999), which held that the Daubert rule applies to all expert testimony, not merely testimony

17 based in science. United States v. Dukagjini, 326 F.3d 45, 52, n.2 (2nd Cir. 2003). State

18 defendants’ expert, Timothy T. Brown, Ph.D., reviewed Dr. Howes’ declaration, as to the

19 probable effects a proposed funding change would have on the average wages paid to IHSS

20 providers, the turnover of IHSS providers in an environment where unemployment rates are

21 relatively high, the implications of IHSS consumers, and the cost to the state of higher nursing

22 home admissions. Declaration of Timothy T. Brown, Ph.D., ¶ 4. Dr. Brown has submitted a

23 declaration, filed concurrently herewith, explaining that Dr. Howes’ declaration is filled with

24 methodological errors, and therefore the conclusions drawn from her analysis are invalid and

25 unreliable. Declaration of Timothy T. Brown, Ph.D., ¶¶ 5, 7. Accordingly, Dr. Howes’

26 declaration is not admissible. Fed. R. Evid. 702; Daubert, 509 U.S. at 589-593.

27

State defendants also object on the grounds of relevance to the portions of Dr. Howe’s

28 declaration that argue that costs to the state will increase because more consumers will be 3
STATE DEFENDANTS’ OBJECTIONS TO EVIDENCE (CV09-2306 (CW))

Case4:09-cv-02306-CW Document99 Filed06/15/09 Page5 of 12

1 admitted into skilled nursing facilities. Fed. R. Evid. 402. Portions of the declaration are also

2 speculative, lack foundation, and assume facts not in evidence.

3

B. Declarations of Other “Experts”

4

State defendants generally object to the declarations submitted by David Altman, Mitchell

5 LaPlante and John F. Schnelle on the grounds that they set forth improper expert testimony (Fed.

6 R. Evid. 702), are speculative, lack foundation, lack personal knowledge, and are conclusory.

7 V. DECLARATIONS OF ALTSHULER BERZON LLP LEGAL ASSISTANTS

8

Finally, State defendants object to the declarations submitted by legal assistants Hyun Nam

9 and Jusztina Traum on the ground that they are based on hearsay statements made by individuals

10 at various counties and home care agencies, respectively. (Fed. R. Evid. 802). In addition,

11 portions of the Traum declaration lack foundation, are irrelevant (Fed. R. Evid. 402), and are

12 vague.

13

SPECIFIC OBJECTIONS TO DECLARATIONS AND EXHIBITS

14

State defendants incorporate by reference the above general objections and further

15 objections as follows:

16

17

DECLARATION

SUBMITTED BY

18

PLAINTIFFS

19 IHSS CONSUMER DECLARATIONS
20 Charlene Ayers Donna Brown
21

22

23

24

25 Lisa Brown
26

27

28

PARAGRAPH & LINE NUMBER

GROUNDS FOR OBJECTION

¶¶ 8-9 ¶ 6 ¶ 7 ¶ 8 (p. 1), lines 24-26, (p. 2), lines 1-2 ¶ 9, lines 10-11
¶¶ 11-12 ¶ 13
¶ 1, lines 26-27 4

Speculative
Hearsay (Fed. R. Evid. 802)
Speculative
Speculative; lacks foundation; assumes facts not in evidence
Lacks foundation; lacks personal knowledge (Fed. R. Evid. 602); speculative, improper lay opinion (Fed. R. Evid. 701); irrelevant (Fed. R. Evid. 402)
Speculative
Lacks foundation; assumes facts not in evidence; lacks personal knowledge (Fed. R. Evid. 602) ; speculative
Improper legal conclusion;

STATE DEFENDANTS’ OBJECTIONS TO EVIDENCE (CV09-2306 (CW))

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1

improper lay opinion (Fed. R.

Evid. 701)

2 Lydia Dominquez

¶ 6

Speculative.

¶ 7

Speculative; lacks personal

3

knowledge (Fed. R. Evid.

602); lacks foundation;

4

assumes facts not in evidence

Leslie Gordon 5

¶ 5; ¶ 6, line 17-18; ¶ 7, lines Speculative 21-22

¶ 6, lines 18-20

Lacks personal knowledge

6

(Fed. R. Evid. 602); lacks

foundation; assumes facts not

7

in evidence

¶ 8 (p. 2), lines 1-2

Improper legal conclusion;

8

improper lay opinion (Fed. R.

9 Jeffrey Lee

¶ 6, line 15

Evid. 701) Lacks personal knowledge

(Fed. R. Evid. 602); assumes

10

facts not in evidence

11 Andy Martinez

¶ 6, lines 15-16 ¶ 5, lines 10-11

Speculative Speculative; improper lay

12

¶ 6, lines 14-15

opinion (Fed. R. Evid. 701) Speculative

13

¶ 7, lines 19-20

Lacks personal knowledge (Fed. R. Evid. 602); assumes

14

facts not in evidence; lacks foundation; speculative

15

Carlos Martinez (on behalf of wife Mikesha Martinez)

¶ 6

Hearsay (Fed. R. Evid. 802)

16

¶¶ 7-8 ¶ 9, lines 26-27

Speculative Improper legal conclusion;

17

improper lay opinion (Fed. R. Evid. 701)

18 Herbert Meyer

¶ 8, lines 13-15 ¶ 8, lines 15-17

Speculative Improper legal conclusion;

19

improper lay opinion (Fed. R. Evid. 701); lacks foundation;

20

lacks personal knowledge (Fed. R. Evid. 602)

21

¶ 9, lines 18-19, 22-24

Speculative; lacks foundation;

lacks personal knowledge

22

(Fed. R. Evid. 602); assumes

facts not in evidence.

23

¶ 10 (page 2), line 28, ( p. 3), Irrelevant (Fed. R. Evid. 402);

line 4, lines 6-10

lacks foundation; lacks

24

personal knowledge (Fed. R.

Evid. 602); assumes facts not

25

in evidence; improper lay

opinion (Fed. R. Evid. 701);

26

speculative.

¶ 11, lines 15-16

Improper legal conclusion;

27

improper lay opinion (Fed. R.

Evid. 701)

28 Willie Beatrice Sheppard

¶ 5, lines 13-14; ¶6, lines 15- Speculative

5

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1

2

3 Pamela Tiedt

4 Julie Weissman-Steinbaugh
5

6

7

8

9 IHSS PROVIDER

10

DECLARATIONS Teresa Armas

11

12 Willie Billops 13

14

15 16 Brenda Blannon

17

18

19 20 Brittany Calhoun

21

22

23 Ebe Cerqua
24 Hui Cheun Chen Penny Durham
25

26

27

28

16; ¶ 8 ¶ 11, lines 6-7
¶ 5 ¶ 6, lines 17-18; ¶ 8 ¶ 6, lines 18-19; ¶ 7 ¶ 8
¶ 9, lines 7-8

Improper legal conclusion; improper lay opinion (Fed. R. Evid. 701)
Speculative; lack of personal knowledge (Fed. R. Evid. 602)
Speculative
Speculative
Speculative; lacks personal knowledge (Fed. R. Evid. 602); lacks foundation; improper lay opinion (Fed. R. Evid. 701)
Improper legal conclusion; improper lay opinion (Fed. R. Evid. 701)

¶ 6, lines 17-19, 20-21
¶ 7 ¶ 4; ¶5, lines 20-21; ¶6, line 26 ¶ 5, lines 21-22 ¶ 7, lines 27-28
¶ 7, lines 1-3
¶ 5, lines 17-19 ¶ 5, lines 19-21
¶ 6 (p. 1), lines 24-25, (p. 2), lines 1-3; ¶ 7, lines 4-5 ¶ 8
¶ 9, lines 22-23 ¶ 5, lines 16-22 ¶ 6, lines 14-15, 17-18 p. 2, ¶ 5, “IHSS makes this care possible by enabling him to remain at home – an incalculably superior alternative to residential care, both in terms of costeffectiveness and patient’s quality of life.”

Speculative; lacks personal knowledge (Fed. R. Evid. 602); lacks foundation Speculative Speculative Irrelevant (Fed. R. Evid. 402) Speculative; lacks personal knowledge (Fed. R. Evid. 602) Lacks personal knowledge (Fed. R. Evid. 602); hearsay (Fed. R. Evid. 802) Speculative Irrelevant (Fed. R. Evid. 402); lacks personal knowledge (Fed. R. Evid. 602); lacks foundation; assumes facts not in evidence; improper lay opinion (Fed. R. Evid. 701); speculative Speculative
Speculative; lacks personal knowledge (Fed. R. Evid. 602); hearsay (Fed. R. Evid. 802) Speculative Speculative Speculative Lacks personal knowledge (Fed. R. Evid. 602);lacks foundation; improper lay opinion (Fed. R. Evid. 701); assumes facts not in evidence; speculative

6

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1 2 3 4 5 6 7 Maria Luisa Figueroa 8 9 10 11 12 13 Sara Hamry 14 15 Ana Huamani 16 17 18 19 20 21 22 23 24 Natalie Hunter 25 26 27 28 Pui Lam

p. 3, ¶ 5, “Furthermore, IHSS care provides a preventative medical function as well as care for existing conditions, which is similarly costsaving.” p. 3, ¶ 6, “I do not know how I would manage in the face of this proposed IHSS wage reduction which would leave me with a net wage of about $150 per week.” ¶ 4 ¶ 5
¶ 6
¶ 8
¶ 3, line 11; ¶ 5, line 18
¶ 6, lines 21-22 ¶7
¶ 8
¶ 5 ¶ 7
¶ 6 (p. 1), lines 21-26, (p. 2),

Irrelevant (Fed. R. Evid. 402); Lacks personal knowledge (Fed. R. Evid. 602);lacks foundation; improper lay opinion (Fed. R. Evid. 701); assumes facts not in evidence Speculative
Speculative Speculative; improper lay opinion (Fed. R. Evid. 701); lacks personal knowledge (Fed. R. Evid. 602); assumes facts not in evidence Speculative; improper lay opinion (Fed. R. Evid. 701); lacks personal knowledge (Fed. R. Evid. 602); assumes facts not in evidence; hearsay (Fed. R. Evid. 802) Speculative; lacks personal knowledge (Fed. R. Evid. 602); hearsay (Fed. R. Evid. 802) Speculative; improper lay opinion (Fed. R. Evid. 701); lacks personal knowledge (Fed. R. Evid. 602); lacks foundation Speculative Speculative; lacks personal knowledge (Fed. R. Evid. 602); lacks foundation; assumes facts not in evidence; hearsay (Fed. R. Evid. 802); improper lay opinion (Fed. R. Evid. 701) Speculative; lacks personal knowledge (Fed. R. Evid. 602); hearsay (Fed. R. Evid. 802) Speculative Speculative; lacks personal knowledge (Fed. R. Evid. 602); lacks foundation; assumes facts not in evidence; hearsay (Fed. R. Evid. 802); improper lay opinion (Fed. R. Evid. 701) Speculative; assumes facts not

7
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1 Susan L’Amie
2

3

4 Young Eun Lee 5

6

7

8 Emily Madanat
9 Shawna Marzette
10

11

12

13

14

15

16 Jackie Peppars 17

18

19

20

21

Virginia Rae Arminda Sanchez

22 Christine Schwartz

23

24

25

26

27 Sadie Wilson 28

lines 1, 5-6 ¶ 4, lines 11-12 ¶ 4, lines 16-17
¶ 6
¶7
¶ 5 ¶ 6
¶ 9 ¶ 11
¶ 6
¶ 7 ¶ 5 ¶ 5, lines 17-18 ¶ 4, lines 10-13, 16-17
¶ 4, line 17
¶ 5, lines 22-23, 26-27 ¶ 6

in evidence; lacks foundation
Speculative
Lacks personal knowledge (Fed. R. Evid. 602); improper lay opinion (Fed. R. Evid. 701); lacks foundation
Speculative; lacks personal knowledge (Fed. R. Evid. 602); improper lay opinion (Fed. R. Evid. 701)
Speculative; lacks personal knowledge (Fed. R. Evid. 602); improper lay opinion (Fed. R. Evid. 701); lacks foundation
Speculative
Lacks personal knowledge (Fed. R. Evid. 602); hearsay (Fed. R. Evid. 802); lacks foundation; assumes facts not in evidence; improper lay opinion (Fed. R. Evid. 701)
Speculative
Speculative; lacks personal knowledge (Fed. R. Evid. 602); improper lay opinion (Fed. R. Evid. 701); hearsay (Fed. R. Evid. 802);lacks foundation; assumes facts not in evidence
Speculative; lacks personal knowledge (Fed. R. Evid. 602); improper lay opinion (Fed. R. Evid. 701); lacks foundation; assumes facts not in evidence
Speculative; lacks personal knowledge (Fed. R. Evid. 602); lacks foundation
Speculative; conclusory
Speculative
Speculative; lacks personal knowledge (Fed. R. Evid. 602); lacks foundation; assumes facts not in evidence; improper lay opinion (Fed. R. Evid. 701)
Irrelevant (Fed. R. Evid. 402); speculative; lacks personal knowledge (Fed. R. Evid. 602);improper lay opinion (Fed. R. Evid. 701)
Speculative
Speculative; irrelevant (Fed.

8

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1 2 3 4 5 6 7 Diana Robinson
Socorro Romero 8 9 SEIU DECLARATIONS 10 Carol Golubock 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

¶ 7 ¶ 8
¶ 9, lines 18-19
¶ 5 ¶ 4, lines 13-15 ¶ 4, lines 16-17

R. Evid. 402); hearsay (Fed. R. Evid. 802); lacks foundation
Speculative; improper lay opinion (Fed. R. Evid. 701)
Speculative; lacks personal knowledge (Fed. R. Evid. 602); improper lay opinion (Fed. R. Evid. 701)
Speculative; lacks personal knowledge (Fed. R. Evid. 602); improper lay opinion (Fed. R. Evid. 701)
Speculative
Speculative
Speculative; irrelevant (Fed. R. Evid. 402)

¶ 2, Exh. A; ¶ 3, Exh. B ¶ 4, Exh. C

Lacks authentication (failed to attach copy of referenced April 23, 2009 electronic mail message from Toby Douglas at California Department of Health Care services (CDHCS)) (Fed. R. Evid. 901; fails to include copy of referenced electronic mail message (Fed R. Evid. 1002, 1003)
Lacks authentication (failed to attach copy of referenced April 29, 2009 electronic mail message from Toby Douglas at CDHCS”) (Fed. R. Evid. 901; fails to include copy of referenced electronic mail message (Fed R. Evid. 1002, 1003);fails to identify who drafted “reply analysis” by CDHS (Exh. C);fails to include any document submitted by SEIU to which Exh. C apparently responds

¶ 5, Exh. D

Lacks authentication (failed to attach copy of referenced May 5, 2009 electronic mail message from Rima Cohen , Counselor to secretary for Health Policy at the United States Department of Health and Human Services ( HHS)) (Fed. R. Evid. 901); quotes from, but fails to include copy of referenced electronic mail

9
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1

message (Fed R. Evid. 1002,

1003); hearsay (Fed. R. Evid.

2

802)

Dionne Jimenez

¶¶ 1-10

Irrelevant (Fed. R. Evid. 402)

3

¶ 5, Exhs. A1-A2; ¶ 6, Exh. B; Lacks authentication (Fed. R.

¶ 7, Exh. C; ¶ 9, Exhs. D1-D2; Evid. 901; lacks personal

4

¶ 10, Exhs. E1-E3

knowledge (Fed. R. Evid.

602); improper lay opinion

5

(Fed. R. Evid. 701).

¶¶ 12-14

Lacks personal knowledge

6

(Fed. R. Evid. 602);

speculative; lacks foundation;

7

assumes facts not in evidence

¶ 15

Lacks personal knowledge

8

(Fed. R. Evid. 602);

speculative; conclusory; lacks

9

foundation; assumes facts not

in evidence; improper lay

10

opinion (Fed. R. Evid. 701)

Susannah McDevitt 11

¶¶ 3, 4

Lacks personal knowledge (Fed. R. Evid. 602); hearsay

(Fed. R. Evid. 802)

12

¶ 5

Lacks foundation; hearsay

(Fed. R. Evid. 802)

13

¶ 6

Speculative; lacks personal

14

knowledge (Fed. R. Evid. 602); lacks foundation;

15

improper lay opinion (Fed. R. Evid. 701)

16

Tamara Rasberry EXPERT DECLARATIONS

¶¶ 5- 6

Irrelevant (Fed. R. Evid. 402)

17 Debra Roth

¶¶ 2, 3 ¶¶ 4-6

Hearsay (Fed. R. Evid. 802) Hearsay (Fed. R. Evid. 802);

18

lacks personal knowledge (Fed. R. Evid. 602)

19 Candace Howes

¶¶ 3-79

Improper expert testimony (Fed. R. Evid. 702/Daubert v.

20

Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993)) (see

21

Declaration of Timothy T. Brown, Ph.D, in Support of

22

Opposition to Motion for Preliminary Injunction);

23

speculative; lacks foundation; assumes facts not in evidence

24

¶¶ 7(c); 8(d); 10; 70-79

Irrelevant (Fed. R. Evid. 402); speculative

25 David Altman

¶¶ 3-8

Improper expert testimony (Fed. R. Evid. 702/Daubert v.

26

Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993));

27

speculative; lacks foundation; lacks personal knowledge

28

(Fed. R. Evid. 602);

10

STATE DEFENDANTS’ OBJECTIONS TO EVIDENCE (CV09-2306 (CW))

Case4:09-cv-02306-CW Document99 Filed06/15/09 Page12 of 12

1 2 Mitchell LaPlante 3 4 5 6 7 8
John F. Schnelle 9 10 11 12 13 DECLARATIONS BY
LEGAL ASSISTANTS 14 Hyun Nam 15 Jusztina Traum 16

¶ 6, lines 21-27 ¶ 7 ¶ 8
¶¶ 5-6
¶¶ 2-11 ¶¶ 2-9

conclusory, vague Irrelevant (Fed. R. Evid. 402) Speculative; lacks foundation; conclusory; improper expert testimony (Fed. R. Evid. 702/Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993)) Improper expert testimony (Fed. R. Evid. 702/Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993)); irrelevant (Fed. R. Evid. 402); conclusory; speculative; lacks foundation Improper expert testimony (Fed. R. Evid. 702/Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993)); irrelevant (Fed. R. Evid. 402); lacks personal knowledge (Fed. R. Evid. 602); conclusory; speculative; hearsay (Fed. R. Evid. 802)
Hearsay (Fed. R. Evid. 802) Hearsay (Fed. R. Evid. 802); lacks foundation; irrelevant (Fed. R. Evid. 402); vague

17

CONCLUSION

For the foregoing reasons, State defendants object to the admissibility of certain portions of 18

the declarations and evidence submitted by plaintiffs, and respectfully request that the above19

referenced excerpts of the declarations be stricken. 20

21 Dated: June 15, 2009

Respectfully Submitted,

22

EDMUND G. BROWN JR. Attorney General of California

23

/s/ Susan M. Carson

24

SUSAN M. CARSON

25

Supervising Deputy Attorney General

26

Attorneys for Defendants

27

28 11
STATE DEFENDANTS’ OBJECTIONS TO EVIDENCE (CV09-2306 (CW))

 
 Case4:09-cv-02306-CW Document100 Filed06/16/09 Page1 of 2

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
MCCORMICK, BARSTOW, SHEPPARD, W AYTE & CARRUTH LLP
5 RIVER PARK PLACE EAST FRESNO, CA 93720-1501

Michael G. Woods, # 58683 Timothy J. Buchanan, # 100409 McCORMICK, BARSTOW, SHEPPARD,
WAYTE & CARRUTH LLP P.O. Box 28912 5 River Park Place East Fresno, CA 93720-1501 Telephone: (559) 433-1300 Facsimile: (559) 433-2300

(SPACE BELOW FOR FILING STAMP ONLY)

Attorneys for Defendants COUNTY OF FRESNO and FRESNO COUNTY IN-HOME SUPPORTIVE SERVICES PUBLIC AUTHORITY

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO/OAKLAND DIVISION

MIKESHA MARTINEZ, et al., Plaintiffs,
v. ARNOLD SCHWARZENEGGER, Governor of the State of California; JOHN A. WAGNER, Director of the California Department of Social Services; DAVID MAXWELL-JOLLY, Director of the California Department of Health Care Services; JOHN CHIANG, California State Controller; FRESNO COUNTY; and FRESNO COUNTY IN-HOME SUPPORTIVE SERVICES PUBLIC AUTHORITY,
Defendants.

Case No. C 09-02306 CW

NOTICE OF MOTION AND MOTION BY DEFENDANTS COUNTY OF FRESNO AND FRESNO COUNTY IN-HOME SUPPORTIVE SERVICES PUBLIC AUTHORITY TO DISMISS PLAINTIFFS’ COMPLAINT PURSUANT TO RULE 12(b)(1) & (6) OF THE FEDERAL RULES OF CIVIL PROCEDURE

Date: Time: Courtroom:

August 6, 2009 2:00 p.m. 2 (Oakland Division) Honorable Claudia Wilken

TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on August 6, 2009 at 2:00 p.m., or as soon thereafter as the matter may be heard in Department 2 of the above-entitled court, located at 1301 Clay Street, Oakland, CA 94612, Defendants COUNTY OF FRESNO and FRESNO COUNTY IN-HOME SUPPORTIVE SERVICES PUBLIC AUTHORITY COUNTY OF TULARE (“Defendants”) will and hereby do move for an Order dismissing with prejudice the third and fourth claims for relief
DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS C 09 02306 CW

Case4:09-cv-02306-CW Document100 Filed06/16/09 Page2 of 2

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
MCCORMICK, BARSTOW, SHEPPARD, W AYTE & CARRUTH LLP
5 RIVER PARK PLACE EAST FRESNO, CA 93720-1501

against them, as set forth in Plaintiffs’ Complaint For Declaratory and Injunctive Relief, pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure on grounds that Plaintiffs lack jurisdictional standing to assert their claims. In addition, or in the alternative, Defendants will and hereby do move for an Order dismissing with prejudice Plaintiffs’ third and fourth causes of action against them pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim upon which relief may be granted.
The Motion is based on this Notice of Motion, the Memorandum of Points and Authorities filed concurrently herewith, the Declaration of Kevin Briggs, Defendants’ Request for Judicial Notice with public documents and the Declarations of Catherine E. Basham, Steve Sanchez, Sanja Kovacevic and all exhibits attached thereto, any Reply submitted to an opposition of the motion, on the records and files on this matter, and upon all such oral and documentary evidence which may be presented at the hearing on this Motion.

Dated: June 16, 2009
29253/00173-1409175.v1

McCORMICK, BARSTOW, SHEPPARD, WAYTE & CARRUTH LLP

By:

/s/ Michael G. Woods

Michael G. Woods

Timothy J. Buchanan

Attorneys for Defendant

COUNTY OF FRESNO and FRESNO

COUNTY IN-HOME SUPPORTIVE

SERVICES PUBLIC AUTHORITY

2
DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS C 09 02306 CW

 
 Case4:09-cv-02306-CW Document106 Filed06/18/09 Page1 of 2

1 Michael G. Woods, # 58683 Timothy J. Buchanan, # 100409
2 McCORMICK, BARSTOW, SHEPPARD, WAYTE & CARRUTH LLP
3 P.O. Box 28912 5 River Park Place East
4 Fresno, CA 93720-1501 Telephone: (559) 433-1300
5 Facsimile: (559) 433-2300

(SPACE BELOW FOR FILING STAMP ONLY)

6 Attorneys for Defendants COUNTY OF FRESNO and FRESNO COUNTY IN-HOME SUPPORTIVE
7 SERVICES PUBLIC AUTHORITY

8

UNITED STATES DISTRICT COURT

9

NORTHERN DISTRICT OF CALIFORNIA

10

SAN FRANCISCO/OAKLAND DIVISION

11

12 MIKESHA MARTINEZ, et aI.,

Case No. C 09-02306 CW

13

Plaintiffs,

14 v.

15 ARNOLD SCHWARZENEGGER, Governor ofthe State of California; JOHN
16 A. WAGNER, Director of the California Department of Social Services; DAVID
17 MAXWELL-JOLLY, Director of the California Department of Health Care
18 Services; JOHN CHIANG, California State
Controller; FRESNO COUNTY; and 19 FRESNO COUNTY IN-HOME
SUPPORTIVE SERVICES PUBLIC 20 AUTHORITY,

DEFENDANTS', COUNTY OF FRESNO AND FRESNO COUNTY IN-HOME SUPPORTIVE SERVICES, NOTICE OF MOTION AND MOTION TO SEVER [FRCP, RULE 21]

Date: Time: Courtroom:

August 6, 2009 2:00p.m. 2 (Oakland Division) Honorable Claudia Wilken

21

Defendants.

22
23
24
25
26
27
28
MCCORMICK, BARSTOW,
SHEPPARD, WAYTE &
CARRUTH LLP 5 RIVER PARK Pl..Ace EAsT FRESNO, CA 93720·1501

TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD HEREIN: PLEASE TAKE NOTICE that on August 6, 20092009, at 2:00 p.m., or as soon thereafter as the matter may be heard in Courtroom 2 of the above-entitled court, located at 1301 Clay Street, Oakland, CA 94612, Defendants COUNTY OF FRESNO and FRESNO COUNTY INHOME SUPPORTIVE SERVICES PUBLIC AUTHORITY will and hereby do move the Court for an Order granting Defendants' Motion to Sever as to Plaintiffs' Third and Fourth Claims.
DEFENDANTS' NOTICE OF MOTION AND MOTION TO SEVER [FRCP, RULE 21] C 09-02306 CW

Case4:09-cv-02306-CW Document106 Filed06/18/09 Page2 of 2

1

This motion is made pursuant to Federal Rules of Civil Procedure, Rule 21, on the ground

2 that Defendants are non-diverse dispensable parties and severance will promote fairness to all

3 parties, by avoiding undue prejudice, delay and expense.

4

This motion is based on this Notice of Motion and Motion, the accompanying

5 Memorandum of Points and Authorities, the supporting Declaration of Kevin Briggs, the Request

6 for Judicial Notice and exhibits thereto, any Reply papers filed in this motion, the complete files

7 and records in this action, and such oral and documentary evidence as may be presented at the

8 hearing on this motion.

9

\r, IODated: June

2009

11

12

13

14

15

16

McCORMICK, BARSTOW, SHEPPARD, WAYTE & CARRUTH LLP
By:._~_--:~_~~-----.:.A--:-~~-...1..._~_ Michael G. Woods Timothy J. Buchanan Attorneys for Defendants COUNTY OF FRESNO and FRESNO COUNTY IN-HOME SUPPORTIVE SERVICES PUBLIC AUTHORITY

17 29253/00173-1409163.vl 18

19

20

21

22

23

24

25

26

27

28
MCCORMICK. BARSTOW.
SHEPPARO. WAYTE &
CARRUTH LLP
5 RIVER PARK PLACE EAsT FRESNO,CA 93720-1501

2
DEFENDANTS' NOTICE OF MOTION AND MOTION TO SEVER [FRCP, RULE 21] C 09-02306 CW

 
 Case4:09-cv-02306-CW Document122 Filed06/19/09 Page1 of 4

1 STEPHEN P. BERZON (SBN 46540) SCOTT A. KRONLAND (SBN 171693)
2 STACEY M. LEYTON (SBN 203827) PEDER J. THOREEN (SBN 217081)
3 ANNE N. ARKUSH (SBN 254985) Altshuler Berzon LLP
4 177 Post Street, Suite 300 San Francisco, California 94108
5 Telephone: (415) 421-7151 Facsimile: (415) 362-8064
6 sberzon@altshulerberzon.com skronland@altshulerberzon.com
7 sleyton@altshulerberzon.com pthoreen@altshulerberzon.com
8 aarkush@altshulerberzon.com

9 Attorneys for Plaintiffs

10

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

11

SAN FRANCISCO/OAKLAND DIVISION

12 MIKESHA MARTINEZ, by and through her ) Case No. C 09-02306 CW

husband and next friend Carlos Martinez, LYDIA )

13 DOMINGUEZ, ALEX BROWN, by and through ) PLAINTIFFS’ OBJECTIONS TO STATE

his mother and next friend Lisa Brown, DONNA ) DEFENDANTS’ EVIDENCE IN

14 BROWN, CHLOE LIPTON, by and through her ) SUPPORT OF OPPOSITION TO

conservator and next friend Julie Weissman-

) MOTION FOR A PRELIMINARY

15 Steinbaugh, HERBERT M. MEYER, LESLIE ) INJUNCTION

GORDON, CHARLENE AYERS, WILLIE

)

16 BEATRICE SHEPPARD, and ANDY

)

MARTINEZ, on behalf of themselves and a class ) DATE:

June 25, 2009

17 of those similarly situated; SERVICE

) TIME:

2:00 PM

EMPLOYEES INTERNATIONAL UNION

) COURTROOM: No. 2

18 UNITED HEALTHCARE WORKERS WEST; )

SERVICE EMPLOYEES INTERNATIONAL )

19 UNION UNITED LONG-TERM CARE

)

WORKERS; SERVICE EMPLOYEES

)

20 INTERNATIONAL UNION LOCAL 521; and )

SERVICE EMPLOYEES INTERNATIONAL )

21 UNION CALIFORNIA STATE COUNCIL,

)

)

22

Plaintiffs,

)

)

23

v.

)

)

24 ARNOLD SCHWARZENEGGER, Governor of )

the State of California; JOHN A. WAGNER, )

25 Director of the California Department of Social )

Services; DAVID MAXWELL-JOLLY, Director )

26 of the California Department of Health Care

)

Services; JOHN CHIANG, California State

)

27 Controller; FRESNO COUNTY; and FRESNO )

COUNTY IN-HOME SUPPORTIVE SERVICES )

28 PUBLIC AUTHORITY,

)

)

Defendants.

)

)

Case4:09-cv-02306-CW Document122 Filed06/19/09 Page2 of 4

1

Plaintiffs Mikesha Martinez, et al. hereby assert the following objections to the evidence

2 submitted by Defendants Arnold, John A. Wagner, and David Maxwell-Jolly (collectively “State

3 Defendants”).

4

Plaintiffs acknowledge that “[t]he exigencies of preliminary relief often prevent the movant from

5 procuring supporting evidence in a form that would meet Rule 56(e)’s requirement of evidence

6 admissible at trial,” that such exigencies may also constrain a party opposing such a motion, and that

7 “[s]uch evidence may yet be considered by the court, which has discretion to weight the evidence as

8 required to reflect its reliability.” Dr. Seuss Enterprises v. Penguin Books USA, Inc., 924 F. Supp. 1559,

9 1562 (S.D. Cal. 1996). But evidence that is irrelevant, as opposed to merely unreliable, should not

10 factor into the Court’s consideration at all, even on a motion for a preliminary injunction. Further,

11 testimony about matters that are not within the witness’s personal knowledge or competence, and so

12 where the witness has no reliable testimony to offer, should also be excluded. Plaintiffs’ objections thus

13 go to both the admissibility and the weight that should be afforded the following evidence based on

14 whether it would be relevant or reliable at trial.

15 Eileen Carroll Declaration (Doc. 97)

16 Paragraph/ Exhibit 17 Entirety 18 19 20 21 22 23 24 25

Grounds for Objection
Not sufficiently supported under Fed. R. Evid. 602, 701; inadmissible hearsay under Fed. R. Evid. 801, 802. In Paragraph 17, Ms. Carroll states that her declaration is based, at least in part, on “information obtained by CDSS staff, which I am informed and therefore believe to be true.” Ms. Carroll does not establish what information that is, why she believes it to be true, and whether that information would be independently admissible if it were properly authenticated (which it is not). Ms. Carroll fails to describe which portions of her declaration rely upon such information. Therefore, her entire declaration is inadmissible because it is based on materials (a) that constitute inadmissible hearsay, (b) about which Ms. Carroll has provided no foundation, and (c) regarding which she lacks personal knowledge.

26

27

28

1

Plaintiffs’ Objections to State Defendants’ Evidence

Case4:09-cv-02306-CW Document122 Filed06/19/09 Page3 of 4

1 ¶11 (“As of June 30, 2007, there were in Not sufficiently supported under Fed. R. Evid. 602, 701;

2

excess of 14,500 active persons in the registry.”)

irrelevant under Fed. R. Evid. 401, 402. Ms. Carroll does not establish the foundation for her conclusion that

3

there are over 14,500 “active persons” in the registry; nor does she explain her understanding of the term “active”

4

in this context. Without additional explanation, her statement in this regard is overly vague, irrelevant, and

5

without foundation.

¶14 (“CDSS believes that the supply of Not sufficiently supported under Fed. R. Evid. 602, 701, 6 providers will remain fairly constant . . . 702; inadmissible hearsay under Fed. R. Evid. 801, 802;

.”; “California’s Employment 7 Development Department projects

absence of original under Fed. R. Evid. 1002. Ms. Carroll provide no foundation for her ability to state the

significant growth in the Personal and 8 Home Care Aides profession, and

beliefs of CDSS, a stage agency, nor does she establish her personal knowledge of the agency’s beliefs (even if it

estimates that this field will increase by could have “beliefs” in any meaningful way). Ms. 9 more than 27% over the next seven years, Carroll has not established that she is qualified to give an

adding some 12,500 positions annually. expert opinion forecasting the supply of providers. 10 EDD also projects that with [sic] the

aging of the ‘baby boom’ population of Ms. Carroll provides no foundation for her representation 11 persons over 65 years of age will nearly regarding, and lacks personal knowledge of, the EDD

double by the year 2020, thus providing a forecasts contained in her declaration. Ms. Carroll has 12 growing population of recipients to match not established that she is qualified to give expert

the increasing number of potential service testimony regarding such matters. 13 providers. Although the near-11%

unemployment rate from which California Ms. Carroll’s testimony regarding EDD forecasts is

14 now suffers is distressing, EDD has

irrelevant and she has not produced the EDD forecasts or

suggested that the supply of current and pointed to where they may be found. Even assuming that 15 potential service providers will remain she is reporting the EDD forecasts accurately, her

fairly high.”) 16

characterization makes it impossible to tell whether the increase in “this field” refers to increases in providers or

jobs. (Plaintiffs submit that their review of publicly

17

available EDD data suggests it is the latter.)

18 ¶16 (“Neither Medicare nor any private Not sufficiently supported under Fed. R. Evid. 602, 701,

insurer provide for all these services, nor 702; irrelevant under Fed. R. Evid. 401, 402. Ms.

19 do they provide for up to 283 per month Carroll provides absolutely no foundation for her broad

per recipient for the services they do

statements regarding access to in-home services through

20 provide. With the exception of a few

Medicare or private insurance. Ms. Carroll’s declaration

waiver programs, the IHSS program

does not purport to (nor does it) establish her

21 provides the broadest range and amount qualifications as an expert in this area.

of services to the elderly and disabled in

22 California: there is nothing available to These statements are irrelevant for the additional reason

the general population of the state through that, with respect to Plaintiffs’ substantive Medicaid

23 Medicare or private insurance that

claim in this litigation, the relevant comparison is

compares in quality and quantity to what between the access to IHSS services after the wage cap

24 recipients of IHSS services receive.”)

in Section 12306.1(d)(6) is implemented and what is

available to the general population in the geographic

25

area. Access currently available under IHSS does not

bear on this analysis. Moreover, the relevant comparison

26

is not between the IHSS services that might theoretically

be available under the program (which is as much as Ms.

27

Carroll’s declaration establishes), but which IHSS

services are available as a practical matter.

28

2

Plaintiffs’ Objections to State Defendants’ Evidence

Case4:09-cv-02306-CW Document122 Filed06/19/09 Page4 of 4

1 Toby Douglas Declaration (Doc. 98)

2 Paragraph/ Exhibit

Grounds for Objection

3 ¶5 (“Another option would be for the

Not sufficiently supported under Fed. R. Evid. 602, 701,

Legislature to eliminate Medi-Cal

702. Mr. Douglas has not established his personal

4 coverage of option services that California knowledge regarding what federal law requires, nor has

currently provides, but that federal law 5 does not require.”)

he established his qualifications as an expert in this regard.

6 Timothy T. Brown Declaration (Doc. 96)

7 Paragraph/ Exhibit
8 Entirety
9
10

Grounds for Objection
Improper or irrelevant expert testimony under Fed. R. Evid. 702. See Supplemental Declaration of Dr. Candace Howes.

11 Dated: June 19, 2009 12 13 14

STEPHEN P. BERZON (SBN 46540) SCOTT KRONLAND (SBN 171693) STACEY M. LEYTON (SBN 203827) PEDER J. THOREEN (SBN 217081) ANNE N. ARKUSH (SBN 254985) Altshuler Berzon LLP

15

By:/s/ Stacey M. Leyton

Stacey M. Leyton

16

Attorneys for Plaintiffs

17

18

19

20

21

22

23

24

25

26

27

28

3

Plaintiffs’ Objections to State Defendants’ Evidence

 
 Case4:09-cv-02306-CW Document123 Filed06/19/09 Page1 of 4

1 STEPHEN P. BERZON (SBN 46540) SCOTT A. KRONLAND (SBN 171693)
2 STACEY M. LEYTON (SBN 203827) PEDER J. THOREEN (SBN 217081)
3 ANNE N. ARKUSH (SBN 254985) Altshuler Berzon LLP
4 177 Post Street, Suite 300 San Francisco, California 94108
5 Telephone: (415) 421-7151 Facsimile: (415) 362-8064
6 sberzon@altshulerberzon.com skronland@altshulerberzon.com
7 sleyton@altshulerberzon.com pthoreen@altshulerberzon.com
8 aarkush@altshulerberzon.com

9 Attorneys for Plaintiffs

10

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

11

SAN FRANCISCO/OAKLAND DIVISION

12 MIKESHA MARTINEZ, by and through her

) Case No. C 09-02306 CW

husband and next friend Carlos Martinez, LYDIA )

13 DOMINGUEZ, ALEX BROWN, by and through ) PLAINTIFFS’ OBJECTIONS TO

his mother and next friend Lisa Brown, DONNA ) COUNTY DEFENDANTS’ EVIDENCE

14 BROWN, CHLOE LIPTON, by and through her ) IN SUPPORT OF COUNTY’S

conservator and next friend Julie Weissman-

) OPPOSITION TO MOTION FOR A

15 Steinbaugh, HERBERT M. MEYER, LESLIE ) PRELIMINARY INJUNCTION

GORDON, CHARLENE AYERS, WILLIE

)

16 BEATRICE SHEPPARD, and ANDY

)

MARTINEZ, on behalf of themselves and a class ) DATE:

June 25, 2009

17 of those similarly situated; SERVICE

) TIME:

2:00 PM

EMPLOYEES INTERNATIONAL UNION

) COURTROOM: No. 2

18 UNITED HEALTHCARE WORKERS WEST; )

SERVICE EMPLOYEES INTERNATIONAL )

19 UNION UNITED LONG-TERM CARE

)

WORKERS; SERVICE EMPLOYEES

)

20 INTERNATIONAL UNION LOCAL 521; and )

SERVICE EMPLOYEES INTERNATIONAL )

21 UNION CALIFORNIA STATE COUNCIL,

)

)

22

Plaintiffs,

)

)

23

v.

)

)

24 ARNOLD SCHWARZENEGGER, Governor of )

the State of California; JOHN A. WAGNER, )

25 Director of the California Department of Social )

Services; DAVID MAXWELL-JOLLY, Director )

26 of the California Department of Health Care

)

Services; JOHN CHIANG, California State

)

27 Controller; FRESNO COUNTY; and FRESNO )

COUNTY IN-HOME SUPPORTIVE SERVICES )

28 PUBLIC AUTHORITY,

)

)

Defendants.

)

)

Case4:09-cv-02306-CW Document123 Filed06/19/09 Page2 of 4

1

Mikesha Martinez, et al. hereby assert the following objections to the evidence submitted by

2 Defendants County of Fresno and Fresno County In-Home Supportive Services Public Authority

3 (collectively, “the County”).

4

Plaintiffs acknowledge that “[t]he exigencies of preliminary relief often prevent the movant from

5 procuring supporting evidence in a form that would meet Rule 56(e)’s requirement of evidence

6 admissible at trial,” that such exigencies may also constrain a party opposing such a motion, and that

7 “[s]uch evidence may yet be considered by the court, which has discretion to weight the evidence as

8 required to reflect its reliability.” Dr. Seuss Enterprises v. Penguin Books USA, Inc., 924 F. Supp. 1559,

9 1562 (S.D. Cal. 1996). But evidence that is irrelevant, as opposed to merely unreliable, should not

10 factor into the Court’s consideration at all, even on a motion for a preliminary injunction. Further,

11 testimony about matters that are not within the witness’s personal knowledge or competence, and so

12 where the witness has no reliable testimony to offer, should also be excluded. Plaintiffs’ objections thus

13 go to both the admissibility and the weight that should be afforded the following evidence based on

14 whether it would be relevant or reliable at trial.

15 Request for Judicial Notice (Doc. 88)

16 Paragraph/ Exhibit

Grounds for Objection

17 Ex. A to Defendants’ Request for Judicial Irrelevant under Fed. R. Evid. 401, 402. Process for

Notice (SEIU, “UHW Fresno Election 18 Backgrounder”)

IHSS workers' selection of bargaining representative is not relevant to any factual or legal issue here.

19 Catherine Basham Declaration (Doc. 89)

20

Paragraph/ Exhibit

Grounds for Objection

21 ¶¶ 2-3, Exs. A (“Memorandum of

Irrelevant under Fed. R. Evid. 401, 402. Contents of

22 Understanding between SEIU-UHW West private MOU between union representing IHSS workers

United Healthcare Workers Union and and Fresno County IHSS Public Authority have no

23 Fresno County IHSS Public Authority”) & relevance to any factual or legal issue here. B (Correspondence between the County

24 and SEIU-UHW regarding a “Contingency Article” in the

25 “Memorandum of Understanding”)

26

27

28

1

Plaintiffs’ Objections to Defendant Fresno County’s Evidence

Case4:09-cv-02306-CW Document123 Filed06/19/09 Page3 of 4

1 ¶ 4, Ex. C (“Fact-Finding Pursuant To 2 Collective Bargaining Agreement”)
3
4
5 ¶ 9, Ex. H (“Realignment Shortfall
6 Impacting IHSS Provider Wages and Benefits”)
7
8
9
10

Irrelevant under Fed. R. Evid. 401, 402. Mediator’s evaluation of wage cuts under private MOU has no relevance to any factual or legal issues here.
Inadmissible hearsay under Fed. R. Evid. 801, 802. Mediator’s findings in Ex. C are offered for the truth of the matters asserted (Defs.’ Mem. in Opp. 4), and are thus inadmissible hearsay.
Irrelevant under Fed. R. Evid. 401, 402. Justification for, rather than consequences of, proposed wage reduction has no relevance to any factual or legal issue here.
Inadmissible hearsay under Fed. R. Evid. 801, 802. County’s rationale in Ex. H for proposal are offered for the truth of the matters asserted (Defs.’ Mem. in Opp. 5), and are thus inadmissible hearsay.

11 Sanja Kovacevic Declaration (Doc. 90)

12

Paragraph/ Exhibit

Grounds for Objection

13 ¶ 6 (“Fresno County’s wages and benefits Not sufficiently supported under Fed. R. Evid. 602, 701.

14 were negotiated through an agreement with an assumption that the State

No basis is provided for Ms. Kovacevic’s assertion; she fails to establish what “assumption[s]” she is talking

15 maximum wages and benefits would remain at $12.10.”)

about or how she knows them, and she fails to establish that she was party to the “negotait[ions].” Even if she

16

was present at negotiations, she could only offer an

opinion as to her own assumptions, not the County’s, and

17

certainly not the union’s.

18

¶¶ 6 (“If Fresno County remains at the wage/benefit cost of $11.10, while the

Not sufficiently supported under Fed. R. Evid. 602, 701. Data and methodology leading to results or speculation

19

State maximum is reduced to $10.10, the County would incur an additional

about budgetary calculations are not established, so foundation for personal knowledge of these results is not

20

$5,947,265 in costs on an annual

established.

basis . . . .”), 7 (“[T]he county would still

21

realize increased costs of $2,081,543 annually . . . .”), 8 (“$5,356,632 is a loss

22

that is attributed to the IHSS program.”), 9 (“Of this discretionary portion,

23

approximately 66% is used for IHSS program costs . . . .”), 10 (“[I]n order to

24

transfer money . . . to pay for the cost of maintaining IHSS provider wages, the

25

County must make a finding that a transfer of funds from these programs to

26

Social Services would constitute the most cost-effective use of available resources to

27

maximize client outcomes. This is not reasonably likely.”), 11 (“The largest

28 portion of the Health Realignment

2

Plaintiffs’ Objections to Defendant Fresno County’s Evidence

Case4:09-cv-02306-CW Document123 Filed06/19/09 Page4 of 4

1 allocation is expended in largely non-

2

discretionary areas . . . .”), 12 (“Mental Health Realignment funds are utilized to

3

meet four basic State mandates . . . .”), 13 (“If such a plan is not achieved, several

4

hundred additional county positions and corresponding critical services would

5

have to be eliminated in order to balance expenses and revenues.”), 14 (“[T]he

6

Governor’s May 14th budget proposal would reduce services to elderly, children

7

and needy families in Fresno County by approximately $25.8 Million beyond any

8

reductions that Fresno County has already included in its budget.”)

9

10 Steve Sanchez Declaration (Doc. 91)

11 Paragraph/ Exhibit 12 ¶ 5 13 14 15 16 17 18 19

Grounds for Objection
Not sufficiently supported under Fed. R. Evid. 602, 701; irrelevant under Fed. R. Evid. 401, 402. Mr. Sanchez states a conclusion that certain providers on the Registry “are either not working at all or are underemployed” without establishing how he knows this; data showing the portion of providers working fewer than 30 hours/week does not establish that they are “underemployed” rather than, e.g., employed elsewhere, and whether their other jobs pay more than $9.50/hour. Further, Mr. Sanchez asserts that there are 450 “active providers” on the Registry; but he fails to establish how he knows that those who are not working are “active.” Absent such a basis connecting these facts to facts and legal issues here, the data provided are irrelevant.

20

Dated: June 19, 2009

21

22

23

STEPHEN P. BERZON (SBN 46540) SCOTT KRONLAND (SBN 171693) STACEY M. LEYTON (SBN 203827) PEDER J. THOREEN (SBN 217081) ANNE N. ARKUSH (SBN 254985) Altshuler Berzon LLP

24

By:/s/ Stacey M. Leyton

25

Stacey M. Leyton Attorneys for Plaintiffs

26

27

28

3

Plaintiffs’ Objections to Defendant Fresno County’s Evidence

 
 Case4:09-cv-02306-CW Document127 Filed06/24/09 Page1 of 6

1 EDMUND G. BROWN JR. Attorney General of California
2 SUSAN M. CARSON Supervising Deputy Attorney General
3 State Bar No. 135875 455 Golden Gate Avenue, Suite 11000
4 San Francisco, CA 94102-7004 Telephone: (415) 703-5580
5 Facsimile: (415) 703-5480 E-mail: susan.carson@doj.ca.gov
6 Attorneys for State Defendants

7

8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE NORTHERN DISTRICT OF CALIFORNIA

10

11 MIKESHA MARTINEZ, by and through CV 09-2306 (CW)

her husband and next friend Carlos

12 Martinez, LYDIA DOMINGUEZ, ALEX STATE DEFENDANTS’ OBJECTIONS TO

BROWN, by and through his mother and ADDITIONAL EVIDENCE FILED BY

13 next friend Lisa Brown, DONNA BROWN, PLAINTIFFS IN SUPPORT OF THEIR

CHLOE LIPTON, by and through her

REPLY MEMORANDUM RE MOTION

14 conservator and next friend Julie

FOR PRELIMINARY INJUNCTION

Weissman-Steinbaugh, HERBERT M.

15 MEYER, LESLIE GORDON, CHARLENE Date:

June 25, 2009

AYERS, WILLIE BEATRICE SHEPPARD, Time:

2:00 p.m.

16 and ANDY MARTINEZ, on behalf of

Dept:

2

themselves and a class of those similarly

Judge

The Honorable Claudia Wilken

17 situated; SERVICE EMPLOYEES

Trial Date: N/A

INTERNATIONAL UNION UNITED

Action Filed: 5/26/2009

18 HEALTHCARE WORKERS WEST; et al,

19

Plaintiffs,

20

v.

21
ARNOLD SCHWARZENEGGER, 22 Governor of the State of California; JOHN
A. WAGNER, Director of the California 23 Department of Social Services; DAVID
MAXWELL-JOLLY, Director of the 24 California Department of Health Care
Services; JOHN CHIANG, California State 25 Controller; et al,

26

Defendants.

27

28

STATE DEFENDANTS’ OBJECTIONS TO EVIDENCE SUBMITTED WITH REPLY MEM. (CV 09-2306 (CW))

Case4:09-cv-02306-CW Document127 Filed06/24/09 Page2 of 6

1

INTRODUCTION

2

State defendants Arnold Schwarzenegger, Governor of the State of California, John A.

3 Wagner, Director of the California Department of Social Services, and David Maxwell-Jolly,

4 Director of the California Department of Health Care Services, object to the additional and

5 supplemental declarations filed by plaintiffs in conjunction with their reply brief in support of

6 their motion for preliminary injunction. State defendants hereby reserve their right to make other

7 objections in the future in addition to those set forth below. Without waiving any further

8 objections they might assert in the future, State defendants make the following objections to the

9 declarations and exhibits based on, among other grounds, Federal Rules of Evidence 402

10 (irrelevance), 602 (lack of personal knowledge), 701 (improper lay opinion), 702 (improper

11 expert testimony), and 802 (hearsay).

12

GENERAL OBJECTIONS TO PLAINTIFFS’ DECLARATIONS AND EXHIBITS

13 I. 14

SUPPLEMENTAL AND ADDITIONAL DECLARATIONS BY IN-HOME SUPPORTIVE SERVICES (IHSS) CONSUMERS

15

State defendants generally object to the supplemental and additional declarations submitted

16 by IHSS consumers in support of plaintiffs’ reply on numerous grounds. Specific objections to

17 the declarations submitted by individual IHSS consumers are set forth in the chart below.

18

State defendants object that portions of the IHSS consumer declarations are irrelevant,

19 particularly with respect to statements regarding registry lists and emergency back-up services,

20 Fed. R. Evid. 402, and speculative, particularly with respect to statements regarding what might

21 happen if proposed cuts in provider wages are implemented. In addition, portions of the

22 declarations are based on hearsay, Fed. R. Evid. 802, lack foundation, and include improper lay

23 opinion. Fed. R. Evid. 701.

24 II. DECLARATION BY ADDITIONAL IHSS PROVIDER

25

State defendants generally object to the declaration and exhibit submitted by IHSS provider

26 Anthony Mesaris, Sr., in support of plaintiffs’ reply. In general, portions of the declaration and

27 the exhibit are objectionable because they are irrelevant, Fed. R. Evid. 402, speculative, and

28 1
STATE DEFENDANTS’ OBJECTIONS TO EVIDENCE SUBMITTED WITH REPLY MEM.(CV 09-2306 (CW))

Case4:09-cv-02306-CW Document127 Filed06/24/09 Page3 of 6

1 based on hearsay. Fed. R. Evid. 802. Specific objections to the declaration and exhibit are set

2 forth in the chart below.

3 III. DECLARATIONS BY FORMER COUNTY PUBLIC AUTHORITY EMPLOYEES

4

State defendants generally object to the declarations submitted by former employees of the

5 Alameda County Public Authority and the Solano County Public Authority. State defendants

6 object that portions of the declarations regarding the counties’ emergency back-up and registry

7 programs are irrelevant. Fed. R. Evid. 402. The declarations also lack foundation, assume facts

8 not in evidence, are conclusory, speculative, lack personal knowledge, and include improper lay

9 opinion. Fed. R. Evid. 701. Specific objections to these two declarations are set forth in the

10 chart below.

11 IV. SUPPLEMENTAL DECLARATION SUBMITTED BY SERVICE EMPLOYEES INTERNATIONAL UNION (SEIU) EMPLOYEE
12

13

State defendants also generally object to the Supplemental Declaration submitted by SEIU

14 employee Dionne Jimenez. As set forth in the chart below, the portions of the declaration

15 focused on insurance coverage for homecare services are irrelevant. Fed. R. Evid. 402.

16 V. DECLARATION BY CALIFORNIA HEALTH ADVOCATES EMPLOYEE DONNIE BURNS

17

State defendants further generally object to the declaration submitted by California Health

18 Advocates Employee Donnie Burns. As set forth in the chart below, the declaration, which is

19 focused on long-term care insurance and other private insurance, is irrelevant. Fed. R. Evid. 402.

20 VI. SUPPLEMENTAL DECLARATION BY PLAINTIFFS’ EXPERT CANDACE HOWES

21

State defendants generally object to the supplemental declaration which plaintiffs’ expert,

22 Dr. Candace Howes, submitted in support of plaintiffs’ reply memorandum, on the ground that

23 the statements and opinions in Dr. Howes’ declaration do not meet the standards of Federal Rule

24 of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589-593

25 (1993). Federal Rule of Evidence 702 sets forth the requirements for expert testimony to be

26 admissible, including that the testimony be both relevant and reliable. Rule 702 was amended in

27 2000 in response to Daubert, 509 U.S. at 589-593, in which the Supreme Court ruled that trial

28 judges must act as gatekeepers to exclude unreliable and irrelevant expert scientific testimony, 2
STATE DEFENDANTS’ OBJECTIONS TO EVIDENCE SUBMITTED WITH REPLY MEM.(CV 09-2306 (CW))

Case4:09-cv-02306-CW Document127 Filed06/24/09 Page4 of 6

1 and cases interpreting Daubert, such as Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147-149

2 (1999), which held that the Daubert rule applies to all expert testimony, not merely testimony

3 based in science. United States v. Dukagjini, 326 F.3d 45, 52, n.2 (2nd Cir. 2003).

4

Dr. Howes’ supplemental declaration purports to respond to the declaration submitted by

5 State defendants’ expert, Timothy T. Brown, Ph.D. However, the supplemental declaration fails

6 to adequately rebut the points set forth in Dr. Brown’s declaration, which explained that

7 Dr. Howes’ declaration is filled with methodological errors, and therefore the conclusions drawn

8 from her analysis are invalid and unreliable. Declaration of Timothy T. Brown, Ph.D., ¶¶ 5, 7.

9 Accordingly, Dr. Howes’ declaration is not admissible. Fed. R. Evid. 702; Daubert, 509 U.S. at

10 589-593. The declaration is also irrelevant, Fed. R. Evid. 402, speculative, lacks foundation, and

11 assumes facts not in evidence. Specific objections to the declaration are set forth in the chart

12 below.

13

SPECIFIC OBJECTIONS TO DECLARATIONS AND EXHIBITS

14

State defendants incorporate by reference the above general objections and further object as

15 follows:

16

17

DECLARATION

SUBMITTED BY

18

PLAINTIFFS

PARAGRAPH & LINE NUMBER

GROUNDS FOR OBJECTION

19 IHSS CONSUMER DECLARATIONS
20 Curt Austin
21

¶¶ 4-5 ¶¶ 6-8

22 Carlos Martinez 23

¶¶ 3-5

24 Carmen Rivera -Hendrickson ¶¶ 4-5 25

26 Pamela Tiedt 27

¶¶ 2, 4, 5

28 3

Irrelevant (Fed. R. Evid. 402) Speculative; hearsay (Fed. R. Evid. 802) Irrelevant (Fed. R. Evid. 402); hearsay (Fed. R. Evid. 802); lacks foundation Irrelevant (Fed. R. Evid. 402); hearsay (Fed. R. Evid. 802); lacks foundation Irrelevant (Fed. R. Evid. 402); lacks foundation; improper lay opinion (Fed. R. Evid. 701)

STATE DEFENDANTS’ OBJECTIONS TO EVIDENCE SUBMITTED WITH REPLY MEM.(CV 09-2306 (CW))

Case4:09-cv-02306-CW Document127 Filed06/24/09 Page5 of 6

1 2 IHSS PROVIDER
DECLARATION 3 Anthony Mesaris, Sr.
4
5
6 COUNTY PUBLIC
7 AUTHORITY FORMER 8 EMPLOYEE
DECLARATIONS 9 Lauren Rolfe 10
11 12 Richard Soohoo
13
14
15
16 SUPPLEMENTAL SEIU
17 EMPLOYEE 18 DECLARATION
Dionne Jimenez 19
20 HEALTH ADVOCATES EMPLOYEE
21 DECLARATION 22 Donnie Burns

¶ 2, Exh. A ¶¶ 4-5
¶¶ 2-5 ¶ 2-6 ¶ 7 ¶ 8
¶¶ 8-9
Entire Declaration

Speculative; Irrelevant (Fed. R. Evid. 402) Irrelevant (Fed. R. Evid. 402); hearsay (Fed. R. Evid. 802)
Irrelevant (Fed. R. Evid. 402); lacks foundation; assumes facts not in evidence, conclusory; speculative Irrelevant (Fed. R. Evid. 402) Speculative Speculative; improper lay opinion (Fed. R. Evid. 701); lacks foundation; lacks personal knowledge
Irrelevant (Fed. R. Evid. 402)
Irrelevant (Fed. R. Evid. 402)

23 SUPPLEMENTAL EXPERT

24 DECLARATION

Candace Howes 25

Entire Declaration

26

27

28

Improper expert testimony (Fed. R. Evid. 702/Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993)) (see Declaration of Timothy T. Brown, Ph.D., in Support of

4

STATE DEFENDANTS’ OBJECTIONS TO EVIDENCE SUBMITTED WITH REPLY MEM.(CV 09-2306 (CW))

Case4:09-cv-02306-CW Document127 Filed06/24/09 Page6 of 6

1

Opposition to Motion for

2

Preliminary Injunction);

irrelevant (Fed. R. Evid. 402);

3

speculative; lacks foundation;

4

assumes facts not in evidence

5

6

CONCLUSION

7

For the foregoing reasons, State defendants object to the admissibility of certain portions of

8 the declarations and evidence submitted by plaintiffs in conjunction with their reply in support of 9 the motion for preliminary injunction, and respectfully request that the above-referenced portions 10 of the declarations be stricken.

11 Dated: June 24, 2009.

Respectfully Submitted,

12

EDMUND G. BROWN JR.

Attorney General of California

13

14

/s/ Susan M. Carson

15

SUSAN M. CARSON

Supervising Deputy Attorney General

16

Attorneys for State Defendants

17

18

19

20 SF2009403964
40347610.docx
21

22

23

24

25

26

27

28 5
STATE DEFENDANTS’ OBJECTIONS TO EVIDENCE SUBMITTED WITH REPLY MEM.(CV 09-2306 (CW))

 
 Case4:09-cv-02306-CW Document131 Filed06/26/09 Page1 of 12

United States District Court For the Northern District of California

1

2

3

4

5 IN THE UNITED STATES DISTRICT COURT
6

7

FOR THE NORTHERN DISTRICT OF CALIFORNIA

8

9 MIKESHA MARTINEZ, et al.,

10

Plaintiffs,

11

v.

No. C 09-02306 CW
ORDER GRANTING PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION

12 ARNOLD SCHWARZENEGGER, et al.,

13

Defendants.

/

14

15

This case is about the implementation of cuts to the wages

16 paid to In-Home Support Services (IHSS) providers, who provide in-

17 home assistance to low-income elderly and disabled individuals

18 through California’s Medi-Cal program. The cuts are scheduled to

19 go into effect July 1, 2009. Plaintiffs are a proposed class of

20 individuals who currently receive assistance through IHSS and the

21 unions who represent IHSS providers. In this motion, Plaintiffs

22 seek to enjoin the implementation of the law that will result in

23 cuts to IHSS providers’ wages. Defendants Governor Arnold

24 Schwarzenegger, Director of the California Department of Social

25 Services John A. Wagner, Director of the California Department of

26 Health Care Services David Maxwell-Jolly, Fresno County and Fresno

27 County In-Home Supportive Services Public Authority oppose the

28

Case4:09-cv-02306-CW Document131 Filed06/26/09 Page2 of 12

United States District Court For the Northern District of California

1 motion.1 The matter was heard on June 25, 2009. Having considered

2 all of the parties’ papers and oral argument on the motion, the

3 Court concludes that Plaintiffs have established a strong

4 likelihood of success on their claim that the State Defendants have

5 violated the procedural requirements of the Medicaid Act. The

6 Court also concludes that Plaintiffs will suffer an irreparable

7 injury if the IHSS cuts are implemented and, furthermore, the cuts

8 are reasonably likely to cost the State more money in the long run

9 as individuals currently receiving in-home health services are

10 required to turn to institutionalized care due to the difficulty of

11 finding IHHS providers willing to work for the reduced wages.

12 Accordingly, the Court grants the preliminary injunction.

13

BACKGROUND2

14

In 1973, California established the IHSS program to provide

15 assistance with the tasks of daily living to low-income elderly and

16 disabled persons “who cannot safely remain in their homes or abodes

17 of their own choosing unless these services are provided.” Cal.

18 Welf. & Inst. Code § 12300(a). IHSS providers give services such

19 as assistance with bathing, dressing, cooking, feeding, bowel and

20 bladder care, self-administration of medication and cleaning. Id.

21 § 12300(b), (c). Over 360,000 IHSS providers serve over 440,000

22 individuals in California. Over sixty-two percent of IHSS

23

24

1Defendant State Controller takes no position in this matter.

25

2The Court takes judicial notice of Plaintiffs’ exhibits A

through X to their request and the State Defendants’ exhibits A and 26 B to their request. These documents consist of legislative history

and publications by federal, state, local officials and agencies 27 which contain facts that are not subject to reasonable dispute in

that they are capable of accurate and ready determination by resort 28 to sources whose accuracy cannot be reasonably questioned.

2

Case4:09-cv-02306-CW Document131 Filed06/26/09 Page3 of 12

United States District Court For the Northern District of California

1 recipients are served by a relative.

2

IHSS is administered by the State’s counties. Fifty-six of

3 California’s fifty-eight counties have established either a public

4 authority (PA) or a non-profit consortium (NPC) to provide the

5 delivery of IHSS services. Each of these fifty-six counties has

6 created and maintains a registry from which service providers can

7 be drawn. As of June 30, 2007, there were over 14,500 persons in

8 county registries.3 These PAs and NPCs are considered employers of

9 IHSS providers for some purposes, including collective bargaining

10 agreements pertaining to providers’ wages and benefits; however,

11 individual consumers hire, fire and supervise their own IHSS

12 providers. Id. § 12301.6(c)(1).

13

Each county establishes the providers’ wages and benefits.

14 Thus, the rates paid to IHSS providers vary by county. Because

15 most IHSS consumers participate in California’s Medicaid program,

16 the federal government pays for about fifty percent of the IHSS

17 program’s costs. See 42 U.S.C. § 1396d(b). The State pays sixty-

18 five percent and the county pays thirty-five percent of the

19 remaining half of the program’s costs. Cal. Welf. & Inst. Code

20 § 12306. The State’s contribution, however, is subject to a

21 statutory cap. Currently, the maximum State contribution is sixty-

22 five percent of the non-federal share of a wage and benefit package

23 of $12.10 per hour. Id. at 12306.1(c)-(d).

24

Wages and benefits are determined through the collective

25 bargaining process at the county level. Once these wages and

26 benefits are decided, they must be submitted to the California

27 3The parties did not provide a more recent estimate for the
28 number of IHSS providers in county registries.

3

Case4:09-cv-02306-CW Document131 Filed06/26/09 Page4 of 12

United States District Court For the Northern District of California

1 Department of Health Care Services to ensure that they comply with

2 all applicable state and federal laws. Id. § 12306.1(a)-(b).

3

In response to California’s unprecedented budget crisis, on

4 February 20, 2009, the Governor signed into law California Welfare

5 and Institutions Code § 12306.1(d)(6). If that law goes into

6 effect on July 1, 2009, the State’s maximum contribution in wages

7 and benefits will be reduced from sixty-five percent of the non-

8 federal share of an hourly rate of $12.10 to sixty-five percent of

9 the non-federal share of an hourly rate of $10.10. This rate

10 represents $9.50 for wages and $0.60 for benefits. Counties do not

11 have to reduce wages and benefits and are permitted to make up the

12 difference between the State’s current contribution and any

13 reduction that may result from the State’s new maximum

14 contribution.

15

Only counties that currently pay IHSS providers more than

16 $10.10 per hour in wages and benefits will see a reduction in the

17 State’s contribution to IHSS costs. Currently, thirty-four of the

18 fifty-six PAs and NPCs pay IHSS providers $10.10 per hour or less

19 in wages and benefits. Thus, there will be no reduction in the

20 State’s contribution to IHSS costs in a majority of the counties,

21 including Los Angeles, where forty-two percent of all IHSS services

22 are provided. Of the twenty-two counties that currently pay wages

23 and benefits of more than $10.10 per hour to IHSS providers, twelve

24 have notified the State of their intent to reduce IHSS wages in

25 proportion to the anticipated reduction in the State’s

26 contribution. Of those twelve counties, Fresno is the only one

27 named as a Defendant. The remaining ten counties have existing

28 labor contracts that will not expire until fall, 2009, and the

4

Case4:09-cv-02306-CW Document131 Filed06/26/09 Page5 of 12

United States District Court For the Northern District of California

1 State does not know what each county will do once those contracts

2 expire.

3

Fresno is the only county Plaintiffs have sued in this case.

4 On September 26, 2006, the Fresno County Board of Supervisors

5 approved a Memorandum of Understanding (MOU) between the Fresno

6 IHSS Public Authority and the Service Employees International

7 Union, California State Council (SEIU).

8

The MOU identifies specific contingencies which would permit

9 the County to reduce wages and benefits from their current levels:

10

If at any time, federal or state IHSS funding, including

monies received through the Realignment Act, are reduced

11

and/or suspended, the Public Authority’s participation in pay

and wages and/or benefits shall be reduced in direct

12

proportion. The PA shall notify the Union of the extent and

implementation date of the reduction.

13

With respect to state realignment and reimbursements,

14

fluctuations in arrears payments within the normal course of

the realignment system/process, as of the date of signing the

15

MOU, are not intended to trigger this section.

16

Fluctuation in total provider service hours do not reduce or

increase the per hour wage/benefit rate.

17

If the union disagrees with a wage or benefit reduction or with the

18

amount of the reduction, the MOU provides that “the parties agree

19

to submit the issue to a neutral third party fact finder for

20

determination of the necessity for and the amount of the

21

reduction.” After the bill enacting § 12306.1(d)(6) was signed

22

into law, the Fresno County Board of Supervisors invoked the

23

contingencies article of the MOU to notify the union that it would

24

be reducing the wage and benefits paid to IHSS providers from the

25

current combined hourly rate of $11.10 to a combined hourly rate of

26

$10.10, effective July 1, 2009. If the County continued to pay

27

IHSS providers wages and benefits of $11.10 per hour after the

28

5

Case4:09-cv-02306-CW Document131 Filed06/26/09 Page6 of 12

United States District Court For the Northern District of California

1 State’s maximum contribution is reduced to sixty-five percent of

2 the non-federal portion of a payment of $10.10 per hour, it would

3 incur an additional $6 million in costs annually. The County

4 claims to be in dire financial straits already, with a proposed

5 2009-2010 budget that anticipates a reduction of $41.44 million in

6 revenues. The County notes that, as of June 10, 1009, there are

7 450 pre-qualified IHSS providers on the county provider registry

8 actively seeking work as an IHSS provider.

9

In their complaint, Plaintiffs allege that the wage reduction

10 provided in § 12306.1(d)(6) will have a substantial financial

11 impact on tens of thousands of IHSS providers throughout the state.

12 Plaintiffs’ expert, Economics Professor Candace Howes, estimates

13 that approximately 4,000 providers will leave IHSS employment

14 because of the rate reduction and that 2,700 IHSS consumers will be

15 unable to find replacements. Howes estimates that over one-fifth

16 of these consumers will try to remain at home without assistance

17 from an IHSS provider, which could be dangerous for the consumer.

18 Roughly half of those unable to find replacement (approximately

19 1,400) may have to enter skilled-nursing-facilities or other

20 residential institutions.4 At the hearing on the present motion,

21

22

4Each side has challenged the admissibility of the evidence

submitted by the other side. However, on a motion for a

23 preliminary injunction, the Court may consider inadmissible

evidence, giving such evidence appropriate weight depending on the

24 competence, personal knowledge, and credibility of the declarants.

11A Charles A. Wright, Arthur K. Miller & Mary K. Kane, Federal

25 Practice and Procedure § 2949 at 216-217 (2d ed. 1995); see also

Flynt Distrib. Co. v. Harvey, 734 F.2d 1389, 1394 (9th Cir. 1984)

26 (“The urgency of obtaining a preliminary injunction necessitates a

prompt determination and makes it difficult to obtain affidavits

27 from persons who would be competent to testify at trial. The trial

court may give even inadmissible evidence some weight, when to do

28

(continued...)

6

Case4:09-cv-02306-CW Document131 Filed06/26/09 Page7 of 12

United States District Court For the Northern District of California

1 defense counsel acknowledged that it costs the State more money to

2 pay for individuals in residential institutions than to pay for

3 home health care services.

4

LEGAL STANDARD

5

“A plaintiff seeking a preliminary injunction must establish

6 that he is likely to succeed on the merits, that he is likely to

7 suffer irreparable harm in the absence of preliminary relief, that

8 the balance of equities tips in his favor, and that an injunction

9 is in the public interest.” Winter v. Natural Res. Def. Council,

10 Inc., ___ U.S. ___, 129 S. Ct. 365, 374 (2008). “[T]he required

11 showing of harm varies inversely with the required showing of

12 meritoriousness.” Indep. Living Ctr. of S. Cal., Inc. v. Shewry,

13 543 F.3d 1047, 1049 (9th Cir. 2008) (quoting Rodeo Collection, Ltd.

14 v. W. Seventh, 812 F.2d 1215, 1217 (9th Cir. 1987)). “When the

15 balance of harm ‘tips decidedly toward the plaintiff,’ injunctive

16 relief may be granted if the plaintiff raises questions ‘serious

17 enough to require litigation.’” Id. (quoting Benda v. Grand Lodge

18 of the Int’l Ass’n of Machinists & Aerospace Workers, 584 F.2d 308,

19 315 (9th Cir. 1978)).

20

DISCUSSION

21 I. Likelihood of Success on the Merits

22

To receive federal financial participation in payment for

23 services that states provide to low income persons who are aged,

24 blind, disabled or members of families with dependent children,

25 states must agree to comply with applicable federal Medicaid law.

26 4(...continued)
27 so serves the purpose of preventing irreparable harm.”) Therefore, the Court will exercise its discretion to consider the proffered
28 evidence as appropriate.

7

Case4:09-cv-02306-CW Document131 Filed06/26/09 Page8 of 12

United States District Court For the Northern District of California

1 Orthopaedic Hosp. v. Belshe, 103 F.3d 1491, 1493 (9th Cir. 1997).

2 The Medicaid Act requires a participating state to develop a state

3 plan which describes the policy and methods to be used to set

4 payment rates for each type of service included in the program. 42

5 C.F.R. § 447.201(b). A provision of the Medicaid Act, 42 U.S.C.

6 § 1396a(a)(30)(A) (hereinafter Section 30(A)), requires, in

7 relevant part, that a state’s Medicaid plan:

8

provide such methods and procedures relating to the

utilization of, and the payment for, care and services

9

available under the plan . . . as may be necessary . . . to

assure that payments are consistent with efficiency, economy,

10

and quality of care and are sufficient to enlist enough

providers so that care and services are available under the

11

plan at least to the extent that such care and services are

available to the general population in the geographic area.

12

Defendants urge that Section 30(A) does not compel the state to

13

conduct any studies or analyses regarding the impact of a rate cut.

14

Defendants rely largely on Sanchez v. Johnson, 416 F.3d 1051 (9th

15

Cir. 2005), which they contend limited the holding in Orthopaedic

16

Hospital to its facts.

17

In Orthopaedic Hospital, hospital providers sued the

18

California Department of Health Services, claiming that the

19

Director violated Section 30(A) by reducing reimbursement rates

20

without considering the effect of hospital costs on efficiency,

21

economy and quality of care. The Ninth Circuit held that Section

22

30(A) “provides that payments for services must be consistent with

23

efficiency, economy, and quality of care, and that those payments

24

must be sufficient to enlist enough providers to provide access to

25

Medicaid recipients.” Orthopaedic Hosp., 103 F.3d at 1496

26

(emphasis in original). The Ninth Circuit concluded that, under

27

Section 30(A),

28

8

Case4:09-cv-02306-CW Document131 Filed06/26/09 Page9 of 12

United States District Court For the Northern District of California

1

the Director must set hospital outpatient reimbursement rates

that bear a reasonable relationship to efficient and

2

economical hospitals’ costs of providing quality services,

unless the Department shows some justification for rates that

3

substantially deviate from such costs. To do this, the

Department must rely on responsible cost studies, its own or

4

others’, that provide reliable data as a basis for its rate

setting.

5

Id. The court also concluded, “It is not justifiable for the

6

Department to reimburse providers substantially less than their

7

costs for purely budgetary reasons.” Id. at 1499 n.3.

8

Subsequently, in Sanchez v. Johnson, 416 F.3d 1051, 1060 (9th

9

Cir. 2005), the Ninth Circuit held that Section 30(A) does not

10

confer individual rights that are enforceable under 42 U.S.C.

11

§ 1983.5 Sanchez left undisturbed the rule announced in

12

Orthopaedic Hospital that Section 30(A) “requires the state to

13

consider efficiency, economy, quality of care, and access before

14

setting Medi-Cal reimbursement rates.” California Pharmacists

15

Assoc. v. Maxwell-Jolly, 563 F.3d 847, 850 (9th Cir. 2009) (citing

16

Orthopaedic Hosp., 103 F.3d at 1496).

17

Here, the State Defendants concede that the California

18

legislature did not consider the Section 30(A) factors when it

19

adopted California Welfare and Institutions Code § 12301(d)(6).

20

The bill implementing § 12301(d)(6) states only that the new law

21

“addresses the fiscal emergency declared by the Governor by

22

proclamation on December 19, 2008.” No analysis in the legislative

23

history mentions the impact of the provision on access to care or

24

the quality of care.

25

26

5However, in Independent Living Center of Southern California,

Inc. v. Shewry, 543 F.3d 1050, 1058 (9th Cir. 2008), the Ninth 27 Circuit held that a plaintiff may sue for injunctive relief

directly under the Supremacy Clause. Here, Plaintiffs sue under 28 that clause.

9

Case4:09-cv-02306-CW Document131 Filed06/26/09 Page10 of 12

United States District Court For the Northern District of California

1

Defendants argue that they need not consider the Section 30(A)

2 factors because the wages and benefits paid to IHSS providers are

3 set by the counties’ PA or NPC, often after collective bargaining.

4 Defendants assert that the State has no influence in determining

5 what the wages will be in each county. However § 12306.1(d)(6) has

6 a direct influence on the wages for each county because it reduces

7 the maximum payment towards wages and benefits that the State will

8 contribute. Through § 12306.1(d)(6), the State directly informed

9 all counties that it would no longer be able to contribute more

10 than sixty-five percent of the non-federal portion of $10.10 per

11 hour in wages and benefits. Further, a county’s role in

12 determining IHHS wages and benefits does not preclude the State

13 from analyzing the impact of Section 12306.1(d)(6) on the Section

14 30(A) factors prior to enactment. Accordingly, the Court concludes

15 that Plaintiffs have made a strong showing of likelihood of success

16 on the merits that Defendants violated the procedural requirements

17 of Section 30(A).

18

Because the Court concludes that a preliminary injunction is

19 warranted based on Plaintiffs’ likelihood of success on their

20 procedural claim, the Court need not determine the likelihood of

21 Plaintiffs’ success on their claim that Defendants violated the

22 substantive requirements of Section 30(A) or their claim that

23 Defendants violated the Americans with Disabilities Act.

24 II. Irreparable Harm, Balance of Hardships and the Public Interest

25

IHSS consumers will suffer immediate and irreparable harm

26 unless the Court issues a preliminary injunction. The wage

27 reductions will cause many IHSS providers to leave employment,

28 which in turn will leave consumers without IHSS assistance. The

10

Case4:09-cv-02306-CW Document131 Filed06/26/09 Page11 of 12

United States District Court For the Northern District of California

1 consumers’ quality of life and health-care will be greatly

2 diminished, which will likely cause great harm to disabled

3 individuals. For instance, the declarations submitted by

4 Plaintiffs describe harms ranging from going hungry and

5 dehydration, to falls and burns, to an inability ever to leave the

6 home. Institutionalizing individuals that can comfortably survive

7 in their home with the help of IHSS providers will “cause

8 Plaintiffs to suffer injury to their mental and physical health,

9 including a shortened life, and even death for some Plaintiffs.”

10 Crabtree v. Goetz, 2008 WL 5330506, at *30 (M.D. Tenn.).

11

IHSS providers will also suffer immediate and irreparable

12 harm. Although financial injury is generally not adequate to

13 establish irreparable harm, L.A. Mem’l Coliseum Comm’n v. Nat’l

14 Football League, 643 F.2d 1197, 1202 (9th Cir. 1980), financial

15 harm to the IHSS providers is irreparable because retrospective

16 monetary damages are unavailable due to the State Defendants’

17 Eleventh Amendment immunity. California Pharmacists, 563 F.3d at

18 851-52 (“[B]ecause the Hospital Plaintiffs and their members will

19 be unable to recover damages against the Department even if they

20 are successful on the merits of their case, they will suffer

21 irreparable harm if the requested injunction is not granted.”)

22

The balance of hardships and the public interest also weigh in

23 Plaintiffs’ favor. If the preliminary injunction does not issue,

24 the State Defendants’ sole injury will be the financial costs

25 associated with continuing to participate under the current IHSS

26 provider wages. The Court notes that there is persuasive evidence

27 that the wage cuts will actually cost the State tens of millions of

28 additional dollars because in-home care is considerably less

11

Case4:09-cv-02306-CW Document131 Filed06/26/09 Page12 of 12

United States District Court For the Northern District of California

1 expensive than institutionalized care and IHHS providers reduce the

2 need for expensive emergency room visits. Accordingly, the

3 financial loss the State will suffer if Section 12306.1(d)(6) is

4 not implemented does not outweigh the hardship Plaintiffs would

5 suffer absent an injunction. Lastly, the public interest weighs

6 heavily in favor of granting relief. “It would be tragic, not only

7 from the standpoint of the individuals involved but also from the

8 standpoint of society, were poor, elderly, disabled people to be

9 wrongfully deprived of essential benefits for any period of time.”

10 Lopez v. Heckler, 713 F.2d 1432, 1437 (9th Cir. 1983).

11

CONCLUSION

12

For the foregoing reasons, the Court grants Plaintiffs’ motion

13 for a preliminary injunction. As set forth in the separately filed

14 preliminary injunction, Defendants are enjoined and restrained from

15 implementing California Welfare and Institutions Code

16 § 12306.1(d)(6) without first conducting the analysis required by

17 Section 30(A), as described in Orthopaedic Hospital.

18

IT IS SO ORDERED.

19 Dated: 6/26/09
20
21

CLAUDIA WILKEN United States District Judge

22

23

24

25

26

27

28

12

 
 Case4:09-cv-02306-CW Document133 Filed06/29/09 Page1 of 9

1 STEPHEN P. BERZON (SBN 46540) SCOTT A. KRONLAND (SBN 171693)
2 STACEY M. LEYTON (SBN 203827) PEDER J. THOREEN (SBN 217081)
3 ANNE N. ARKUSH (SBN 254985) Altshuler Berzon LLP
4 177 Post Street, Suite 300 San Francisco, California 94108
5 Telephone: (415) 421-7151 Facsimile: (415) 362-8064
6 sberzon@altshulerberzon.com skronland@altshulerberzon.com
7 sleyton@altshulerberzon.com pthoreen@altshulerberzon.com
8 aarkush@altshulerberzon.com

9 Attorneys for Plaintiffs

10

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

11

SAN FRANCISCO/OAKLAND DIVISION

12 MIKESHA MARTINEZ, by and through her

) Case No. C 09-02306 CW

husband and next friend Carlos Martinez, LYDIA )

13 DOMINGUEZ, ALEX BROWN, by and through )

his mother and next friend Lisa Brown, DONNA )

14 BROWN, CHLOE LIPTON, by and through her ) PLAINTIFFS’ EMERGENCY EX PARTE

conservator and next friend Julie Weissman-

) MOTION FOR ENFORCEMENT OF

15 Steinbaugh, HERBERT M. MEYER, LESLIE ) PRELIMINARY INJUNCTION

GORDON, CHARLENE AYERS, WILLIE

)

16 BEATRICE SHEPPARD, and ANDY

) IMMEDIATE RULING REQUESTED

MARTINEZ, on behalf of themselves and a class ) PRIOR TO JULY 1, 2009

17 of those similarly situated; SERVICE

)

EMPLOYEES INTERNATIONAL UNION

)

18 UNITED HEALTHCARE WORKERS WEST; )

SERVICE EMPLOYEES INTERNATIONAL )

19 UNION UNITED LONG-TERM CARE

)

WORKERS; SERVICE EMPLOYEES

)

20 INTERNATIONAL UNION LOCAL 521; and )

SERVICE EMPLOYEES INTERNATIONAL )

21 UNION CALIFORNIA STATE COUNCIL,

)

)

22

Plaintiffs,

)

)

23

v.

)

)

24 ARNOLD SCHWARZENEGGER, Governor of )

the State of California; JOHN A. WAGNER, )

25 Director of the California Department of Social )

Services; DAVID MAXWELL-JOLLY, Director )

26 of the California Department of Health Care

)

Services; JOHN CHIANG, California State

)

27 Controller; FRESNO COUNTY; and FRESNO )

COUNTY IN-HOME SUPPORTIVE SERVICES )

28 PUBLIC AUTHORITY,

)

)

Defendants.

)

)

Case4:09-cv-02306-CW Document133 Filed06/29/09 Page2 of 9

1

Plaintiffs hereby move this Court for an emergency ex parte order for enforcement of its

2 previously issued preliminary injunction, to ensure State Defendants’ immediate compliance and to

3 preserve the currently effective status quo rates after July 1, 2009. Plaintiffs request an immediate ruling

4 in order to ensure implementation of that injunction, and to avoid the irreparable harm that will

5 otherwise result.

6

State Defendants have represented to Plaintiffs that they do not interpret this Court’s injunction,

7 which prohibits the implementation of California Welfare and Institutions Code § 12306.1(d)(6), to

8 invalidate the State’s approval of rate decreases submitted by counties pursuant to the State’s

9 instructions as to how counties should implement § 12306.1(d)(6). State Defendants therefore

10 apparently intend to permit those rate reductions to go into effect on July 1. That interpretation would

11 flout both the terms and the purposes of this Court’s injunction. Indeed, it would allow the precise

12 illegal conduct that the injunction was intended to prohibit: the reduction of Medicaid payment rates

13 based on the enactment of § 12306.1(d)(6) without any consideration of the factors set forth in 42 U.S.C.

14 § 1396a(a)(30)(A) (“Section 30(A)”). In order to prevent this circumvention, Plaintiffs ask this Court

15 immediately to enjoin State Defendants from giving effect to rate decreases submitted and approved in

16 implementation of § 12306.1(d)(6), and to communicate to counties that rates in effect prior to such

17 submissions (that is, rates currently in effect) will be reinstated unless and until a new rate change

18 request is filed and approved. This order is necessary in order to preserve the status quo.

19

Through two official communications in April and May of this year, the State instructed counties

20 that § 12306.1(d)(6) had rescinded approvals of all rates above $10.10 ($9.50 in wages and $0.60 in

21 benefits) and required submission of rate change requests. In accord with this instruction, and based on

22 the enactment of § 12306.1(d)(6), some counties submitted requests that reduced IHSS provider wages

23 and benefits, and the State (apparently) approved those rate decreases.1 Now, rather than communicate

24 to the affected counties that its prior instructions were invalid because the statute was unlawful, and that

25 the approvals of the requests submitted in implementation of § 12306.1(d)(6) are no longer effective,

26

27

1 As set forth in the Declaration of Debra Roth submitted contemporaneously with Plaintiffs’

Motion for a Preliminary Injunction, Plaintiffs’ request for information regarding the State’s receipt and

28 approval of rate change requests was denied. Roth Decl. ¶2.

1

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Case4:09-cv-02306-CW Document133 Filed06/29/09 Page3 of 9

1 State Defendants apparently take the position that these approvals will remain in effect, permitting the

2 scheduled wage decreases to take place on July 1, 2009, in contravention of this Court’s order to the

3 contrary.

4

To be clear: this is not the same issue as the question, discussed at the June 25 hearing, whether

5 Fresno County may proceed with a separate and independent rate change request based on its purported

6 realignment funds shortfall. This Court declined to address that question, on the ground that the issue

7 was not before it. State Defendants have misinterpreted this Court’s decision as leaving undecided the

8 question whether rate change requests submitted as part of the implementation of § 12306.1(d)(6) and

9 approved by the State as part of that implementation remain in effect despite the Court’s injunction.

10

BACKGROUND

11 1. Implementation of § 12306.1(d)(6)

12

On April 2, 2009, the California Department of Social Services (“CDSS”), which administers the

13 IHSS program, issued All-County Letter 09-19 with the stated purpose of informing counties about the

14 enactment of Welfare and Institutions Code § 12306.1(d)(6). Leyton Supp. Decl., Ex. A at 1.2 The first

15 paragraph of that All-County Letter stated: “This letter will inform counties how this change will be

16 implemented.” Id. (emphasis added). It stated that no rate changes would take effect without approval

17 of CDSS and the California Department of Health Services (“CDHS”), and instructed counties to

18 “submit a PA Rate Request to reduce the wages and health benefits to the $10.10 level” by May 1, 2009

19 in order for the new rate to take effect on July 1, 2009. Id., Ex. A at 2.

20

Following the issuance of All-County Letter 09-19, in communications with the federal

21 Department of Health and Human Services over whether the State was in compliance with the federal

22 American Recovery and Reinvestment Act of 2009, the State took the position that, based on the

23 enactment of § 12306.1(d)(6), “the State’s conditional approvals of the PA rates are no longer effective

24 and each of the counties in question will need to request the State’s approval of another PA rate.”

25 Leyton Supp. Decl., Ex. C at 4. The State explained:

26

27

2 This All-County Letter was previously submitted to this Court as Exhibit N to Plaintiffs’

Request for Judicial Notice in Support of Preliminary Injunction. This Court granted Plaintiffs’ request

28 for judicial notice. Order Granting Plaintiffs’ Motion for a Preliminary Injunction at 2 n. 2.

2

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Case4:09-cv-02306-CW Document133 Filed06/29/09 Page4 of 9

1

(2) SEIU has not refuted the State’s assertion that its conditional approval of the counties’

wages and benefits has been abrogated by the impending July 1 reduction. 2

SEIU claims that an All County Letter issued by the State to the counties on April 2, 2009 (No.

3

09-19) does not reflect that the approval for their rate packages has been abrogated. While we

disagree with SEIU’s spin on the All County Letter, the State is currently working on amending

4

that All County Information Notice to more clearly inform the counties of the effect of the

impending July 1 reduced appropriation.

5

Regarding SEIU’s question about the effect of the lack of approval of the counties’ rate

6

packages, as the State has already noted, since state funding to support the wage amounts in the

counties’ labor agreements is not available as of July 1, 2009, the PA rates, which are based

7

upon the amount of state funding appropriated, are not approved as of July 1, 2009, and the

counties will need to submit new rate packages for approval. 8

Leyton Supp. Decl., Ex. D at 2 (emphasis added).

9

Subsequently, on May 1, 2009, CDSS issued All-County Information Notice I-34-09. Leyton

10 Supp. Decl., Ex. B.3 The first paragraph of that Information Notice recited the following:

11

The purpose of this All-County Information Notice (ACIN) is to provide counties with

12

updated information regarding the processing of Public Authority (PA) Rate Change

Request to reflect the reduction in the statutory maximum amount in which the state will

13

participate from $12.10 to $10.10, effective July 1,2009.

14 Id. at 1 (emphasis added). The Information Notice further instructed that “Counties currently providing

15 wages and individual health benefits above $10.10 must submit a PA Rate Change Request to reflect the

16 change in the maximum amount in which the state will participate.” Id. It also postponed the applicable

17 submission deadline to June 1, 2009. Id.

18

In reliance upon these communications, twelve counties have submitted rate change requests to

19 reflect or respond to § 12306.1(d)(6)’s decrease in state participation. Order Granting Plaintiffs’ Motion

20 for a Preliminary Injunction at 4:22-26.

21 2. This Court’s Injunction

22

Following briefing and a hearing, this Court issued a written Order Granting Plaintiffs’ Motion

23 for a Preliminary Injunction on June 26, 2009. In issuing this injunction, this Court found that Plaintiffs

24 had demonstrated a likelihood of success, based on State Defendants’ failure to consider the impact of

25 rates reduced pursuant to § 12306.1(d)(6) on the factors set forth in Section 30(A). The Court further

26

27

3 This All-County Information Notice was previously submitted as Exhibit O to Plaintiffs’

28 Request for Judicial Notice, which this Court granted. See note 2 supra.

3

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Case4:09-cv-02306-CW Document133 Filed06/29/09 Page5 of 9

1 found that “immediate and irreparable harm” would result without an injunction. Order Granting

2 Plaintiffs’ Motion for a Preliminary Injunction at 10:25.

3

In finding irreparable harm, this Court reasoned that the wage reductions that would result from

4 the implementation of § 12306.1(d)(6) would leave many IHSS consumers without IHSS assistance,

5 causing harm that would include unnecessary institutionalization. Id. at 10:25-11:10. This Court further

6 found that irreparable harm would befall IHSS providers in the absence of the requested injunction.

7 Id. at 11:11-21.

8

This Court concluded: “As set forth in the separately filed preliminary injunction, Defendants are

9 enjoined and restrained from implementing California Welfare and Institutions Code § 12306.1(d)(6)

10 without first conducting the analysis required by Section 30(A), as described in Orthopaedic Hospital.”

11 Id. at 12:13-17 (emphasis added); see also Preliminary Injunction 1:24-28.

12 3. Communications Regarding Implementation of Injunction

13

After issuance of the Preliminary Injunction, Plaintiffs’ counsel wrote to counsel for State

14 Defendants asking for the issuance of an all-county communication stating that All-County Letter 09-19

15 and All-County Information Notice I-34-09 were rescinded; that the rate reductions submitted and

16 approved pursuant to § 12306.1(d)(6) were disapproved and could not be implemented; and that rates

17 previously in effect remained in effect for those counties. Leyton Supp. Decl., Ex. E.

18

Later the same day, counsel for State Defendants responded that they would issue an All-County

19 Information Notice stating that this Court had enjoined the implementation of § 12306.1(d)(6).

20 However, State Defendants would not agree to rescind the prior all-county communications or to inform

21 counties that rate decreases submitted and approved as part of that implementation were

22 “‘disapproved.’” Leyton Supp. Decl., Ex. F. State Defendants explained:

23
24
25
26 Id.
27

Plaintiffs did not seek an injunction that would require CDSS to disapprove these Requests submitted by counties, and during oral argument, the court specifically declined to issue such an injunction on the ground that it was not before it. Therefore, there is no basis for your request now. Finally, CDSS does not have the authority to tell counties what level of wages and benefits they should pay to IHSS providers; that is determined through collective bargaining between the union and the county.

28
4

Pls. Ex Parte Mot. for Enforcement of Preliminary Injunction Case No. C 09-02306 CW

Case4:09-cv-02306-CW Document133 Filed06/29/09 Page6 of 9

1

ARGUMENT

2

There is no dispute that the rate change requests at issue were prompted by the enactment of

3 § 12306.1(d)(6), and were submitted to and approved by the State pursuant to the process the State

4 established for implementation of § 12306.1(d)(6). The State instructed counties that § 12306.1(d)(6)

5 had rescinded approval of rates above $10.10 and required submission of new rates, and that counties

6 that did not reduce their rate to below $10.10 before June 1, 2009 would be responsible for paying what

7 had been the State’s share beginning July 1, 2009. Counties submitted rate change requests, including

8 proposed rate decreases, in compliance with those instructions.

9

Yet rather than acknowledging that the process it established and the approvals it issued pursuant

10 to that process were invalid because they were based on an unlawful enactment, State Defendants

11 apparently take the position that rate decreases submitted and approved in implementation of

12 § 12306.1(d)(6) remain in effect and unaffected by this Court’s injunction.

13

Under State Defendants’ construction of this Court’s order, all counties that have submitted rate

14 decrease requests in implementation of § 12306.1(d)(6) would need to affirmatively ask the State to

15 rescind approval of their previously submitted rate changes.4 In counties that fail to do so, State

16 Defendants would apparently pay the reduced wages to IHSS providers. At best, State Defendants’

17 interpretation of the injunction threatens to cause confusion and chaos regarding which rate is effective

18 in counties that submitted rate change requests based on § 12306.1(d)(6). At worst, State Defendants’

19 construction threatens to leave in place the exact irreparable injury that the preliminary injunction seeks

20 to prevent.

21

The Court’s injunction was premised on clear Ninth Circuit authority prohibiting reductions in

22 Medicaid payment rates without consideration of the impact of those reduced rates on the Section 30(A)

23 factors. See California Pharmacists Ass’n v. Maxwell-Jolly, 563 F.3d 847, 850 (9th Cir. 2009);

24

25

4 This may require a vote of the Boards of Supervisors in some affected counties, presumably at

26

their next regular meeting. Then, State Defendants would need to review and approve the rate change request and alter the payroll system, a process that, in conjunction with the attempted implementation of

27 § 12306.1(d)(6), took approximately 30 days. Therefore, it is quite likely that even if counties immediately begin the process of rescinding their rate reductions, it could take a month or two before

28 wage levels would be restored to the pre-July 1 status quo.

5

Pls. Ex Parte Mot. for Enforcement of Preliminary Injunction Case No. C 09-02306 CW

Case4:09-cv-02306-CW Document133 Filed06/29/09 Page7 of 9

1 Orthopaedic Hosp. v. Belshe, 103 F.3d 1491, 1496 (9th Cir. 1997). Allowing the rate reductions at issue

2 to take effect – despite State Defendants’ admitted failure to conduct the required analysis under Section

3 30(A) prior to the enactment of § 12306.1(d)(6) – would thus completely thwart the purpose of the

4 injunction. State Defendants’ current position is simply a continuation of their misguided belief that

5 they have no responsibility for ensuring compliance with Section 30(A).

6

As Plaintiffs have previously explained, State Defendants cannot abdicate this responsibility.

7 The Medicaid Act requires that a single state agency (DHCS) be responsible for the administration of the

8 State’s Medicaid program, precisely to avoid questions as to which entity is responsible. See 42 C.F.R. §

9 431.10.5 And as State Defendants admitted in their opposition to Plaintiffs’ request for a preliminary

10 injunction, CDSS and DHCS approve IHSS rates before they become effective.6 It is thus clear that the

11 State Defendants can and must ensure compliance with the Medicaid Act in these circumstances, and it

12 is equally clear that the Court’s injunction was intended to require that they do just that. See Schering

13 Corp. v. Illinois Antibiotics Co., 62 F.3d 903, 906-07 (7th Cir. 1995) (“narrow literalism” may not be

14 used by defendant to evade obligations under injunction).

15

Moreover, the purpose of a preliminary injunction is to maintain the status quo pending a hearing

16 on the merits. See Transwestern Pipeline Co. v. 17.19 Acres of Property Located in Maricopa County,

17 550 F.3d 770, 776 (9th Cir. 2008). Here, the status quo that the injunction was intended to preserve is

18 the rates in effect before July 1, not the lower wage rates that would become effective on July 1 in some

19 counties because of § 12306.1(d)(6) – a provision the Court has found will likely be held invalid. In

20 other words, the injunction was intended to preserve the situation that would have existed as if

21 § 12306.1(d)(6) had never been enacted.

22

23

24

5 See also id. § 431.10(e) (“The agency must not delegate, to other than its own officials,

25

authority to . . . [e]xercise administrative discretion in the administration or supervision of the plan . . . . If other State or local agencies or offices perform services for the Medicaid agency, they must not have

26

the authority to change or disapprove any administrative decision of that agency, or otherwise substitute their judgment for that of the Medicaid agency with respect to the application of policies, rules, and

27 regulations issued by the Medicaid agency”).

28

6 Further, Defendant State Controller actually issues the paychecks to the IHSS providers.

6

Pls. Ex Parte Mot. for Enforcement of Preliminary Injunction Case No. C 09-02306 CW

Case4:09-cv-02306-CW Document133 Filed06/29/09 Page8 of 9

1

When an injunction is issued, the enjoined party has the responsibility to comply with that

2 injunction including by rescinding any unlawful instructions it has previously given. See Armstrong v.

3 Schwarzenegger, 2007 WL 2694243, at *6 (N.D. Cal. Sept. 11, 2007) (Wilken, J.) (defendants violated

4 injunction where, among other things, they failed to inform staff about resources available as result of

5 injunction); Landmark Legal Found v. EPA, 272 F.Supp.2d 70, 78-79 (D.D.C. 2003) (EPA did not

6 substantially comply in good faith with injunction where officials did not adequately advise relevant

7 employees of their responsibilities under the order). For example, if a State statute authorized the

8 demolition of a building, and pursuant to this statute officials had instructed a wrecking company that it

9 could demolish a particular building, but that demolition was subsequently enjoined, the State would be

10 obligated to contact the wrecking company and cancel the demolition. See Fortyune v. American Mult-

11 Cinema, Inc., 364 F.3d 1075, 1087 (9th Cir. 2004) (injunction need not detail precisely how to comply).

12 Under State Defendants’ reasoning, however, they could permit the demolition to go forward because

13 they would lack the authority or reason to tell the wrecking company that the demolition could no longer

14 take place. State Defendants’ interpretation of the injunction threatens to leave in place the entirety of

15 the harm that this Court’s preliminary injunction seeks to prevent.

16

Despite State Defendants’ misunderstanding, this is not the same issue that this Court declined to

17 decide after discussion at its June 25 hearing: whether the State may approve a rate change request

18 submitted by a county based on a justification that is separate from and independent of § 12306.1(d)(6)

19 without conducting a Section 30(A) analysis. Rather, Plaintiffs seek an order that simply makes clear

20 that rate change requests submitted and approved in implementation of § 12306.1(d)(6) no longer have 21 force and effect.7

22

23

7 Because this Court has preliminarily enjoined § 12306.1(d)(6), invalidation of rate requests 24 submitted in implementation of § 12306.1(d)(6) may not cost the counties any additional funds (or, if

25

there is any increase, it is likely to be very modest). That is because those counties that had submitted rate change requests but were still planning to pay above $10.10 in wages and benefits would have had

26

to cover the entire non-federal share above $10.10; instead, they will now receive funds to cover the State’s share of the amount above $10.10. In addition, the enhanced federal Medicaid match will mean

27

that counties pay in total just 12-13% of IHSS provider wages, Jimenez Supp. Decl. ¶4, so even those counties that had planned to reduce their rates to $10.10 will pay only a modest share of the rate above

28 that amount.

7

Pls. Ex Parte Mot. for Enforcement of Preliminary Injunction Case No. C 09-02306 CW

Case4:09-cv-02306-CW Document133 Filed06/29/09 Page9 of 9

1

CONCLUSION

2

For these reasons, Plaintiffs respectfully request that the Court declare that all PA Rate Change

3 Requests submitted pursuant to the process established by the implementation of Welfare and

4 Institutions Code § 12306.1(d)(6) are invalid, and enjoin the State Defendants from giving effect to

5 approvals all such PA Rate Change Requests. Plaintiffs further respectfully request that the Court order

6 the State Defendants to immediately inform counties that submitted PA Rate Change Requests pursuant

7 to the State Defendants’ directives regarding § 12306.1(d)(6) that (1) § 12306.1(d)(6) has been enjoined,

8 and (2) that existing rates will remain effective unless and until new PA Rate Change Requests are

9 submitted and approved.

10

11 Dated: June 29, 2009 12 13 14

STEPHEN P. BERZON (SBN 46540) SCOTT KRONLAND (SBN 171693) STACEY M. LEYTON (SBN 203827) PEDER J. THOREEN (SBN 217081) ANNE N. ARKUSH (SBN 254985) Altshuler Berzon LLP

15

By: _/s/ Stacey M. Leyton___________

Stacey M. Leyton

16

Attorneys for Plaintiffs

17

18

19

20

21

22

23

24

25

26

27

28
8

Pls. Ex Parte Mot. for Enforcement of Preliminary Injunction Case No. C 09-02306 CW

 
 Case4:09-cv-02306-CW Document136 Filed06/29/09 Page1 of 2

United States District Court For the Northern District of California

1

2

3

4

5

6

7

8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE NORTHERN DISTRICT OF CALIFORNIA

10

11 MIKESHA MARTINEZ, et al.,

12

Plaintiffs,

13

v.

14 ARNOLD SCHWARZENEGGER, et al.,

15

Defendants.

16

No. C 09-02306 CW
ORDER DENYING PLAINTIFFS’ EX PARTE MOTION FOR ENFORCEMENT OF PRELIMINARY INJUNCTION
/

17

Plaintiffs have filed an ex parte motion for enforcement of

18 the Court’s preliminary injunction issued June 26, 2009. In that

19 injunction, the Court enjoined and restrained Defendants from

20 implementing California Welfare and Institutions Code

21 § 12306.1(d)(6) without first conducting the analysis required by

22 42 U.S.C. § 1396a(a)(30)(A), as described in Orthopaedic Hospital

23 v. Belshe, 103 F.3d 1941, 1943 (9th Cir. 1997). Defendants must

24 comply with this injunction; however, at this juncture, the Court

25 will not specifically direct Defendants as to how they should

26 implement the injunction. If Plaintiffs are dissatisfied with the

27 manner in which Defendants are implementing the injunction, they

28

Case4:09-cv-02306-CW Document136 Filed06/29/09 Page2 of 2

United States District Court For the Northern District of California

1 may file a regularly noticed motion seeking relief. See N.D. Cal.

2 Civ. R. 7-2. Accordingly, Plaintiffs’ motion is denied.

3

IT IS SO ORDERED.

4 Dated: 6/29/09
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CLAUDIA WILKEN United States District Judge

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 Case4:09-cv-02306-CW Document137 Filed06/29/09 Page1 of 2

United States District Court For the Northern District of California

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

10

11 MIKESHA MARTINEZ, et al.,

12

Plaintiffs,

13

v.

14 ARNOLD SCHWARZENEGGER, et al.,

15

Defendants.

16

No. C 09-02306 CW ORDER DENYING DEFENDANTS’ MOTION FOR A STAY
/

17

Defendants move for a stay of the proceedings pending appeal.

18 The Court does not need further briefing on this issue because the

19 question of whether to stay the proceedings is intimately related

20 to the question of whether to issue the preliminary injunction in

21 the first place, and the legal standard for both is the same. The

22 Court has already carefully considered and determined that

23 Plaintiffs are likely to succeed on the merits of their underlying

24 claim, that they are likely to suffer irreparable harm in the

25 absence of preliminary relief, that the balance of equities tips in

26 their favor, and that an injunction is in the public interest. The

27 Court would not have issued a preliminary injunction if it was not

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Case4:09-cv-02306-CW Document137 Filed06/29/09 Page2 of 2

United States District Court For the Northern District of California

1 of the opinion that California Welfare and Institutions Code

2 § 12306.1(d)(6) should be enjoined before its scheduled effective

3 date of July 1, 2009. Accordingly, the Court denies Defendants’

4 motion.

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IT IS SO ORDERED.

6 Dated: 6/29/09
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CLAUDIA WILKEN United States District Judge

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 Case4:09-cv-02306-CW Document143 Filed07/02/09 Page1 of 45

PAGES 1 - 45

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

BEFORE THE HONORABLE CLAUDIA WILKEN, JUDGE

MIKESHA MARTINEZ, ET AL., )

)

)

PLAINTIFFS,

)

)

VS.

)

)

ARNOLD SCHWARZENEGGER,

)

ET AL.,

)

)

DEFENDANTS.

)

____________________________)

NO. C-09-2306 CW THURSDAY, JUNE 25, 2009 OAKLAND, CALIFORNIA

REPORTER'S TRANSCRIPT OF PROCEEDINGS

APPEARANCES:

FOR PLAINTIFFS:

ALTWSHULER BERZON LLP 177 POST STREET, SUITE 300 SAN FRANCISCO, CALIFORNIA 94108 BY: STACEY M. LEYTON, ESQUIRE PEDER J. THOREEN, ESQUIRE ANNE N. ARKUSH, ESQUIRE SCOTT A. KRONLAND, ESQUIRE STEPHEN P. BERZON, ESQUIRE

FOR DEFENDANT STATE OF CALIFORNIA:
BY:

STATE OF CALIFORNIA DEPARTMENT OF JUSTICE OFFICE OF THE ATTORNEY GENERAL 455 GOLDEN GATE AVENUE, STE. 11000 SAN FRANCISCO, CALIFORNIA 94102 SUSAN M. CARSON, DEPUTY ATTORNEY GENERAL

(APPEARANCES CONTINUED)

REPORTED BY:

DIANE E. SKILLMAN, CSR 4909, RPR, FCRR OFFICIAL COURT REPORTER

DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC (510) 451-2930

Case4:09-cv-02306-CW Document143 Filed07/02/09 Page2 of 45

2

1 FOR DEFENDANT FRESNO COUNTY:
2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

MCCORMICK BARSTOW LLP 5 RIVER PARK PLACE EAST FRESNO, CALIFORNIA 93720 BY: MICHAEL G. WOODS, ESQUIRE

DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC (510) 451-2930

Case4:09-cv-02306-CW Document143 Filed07/02/09 Page3 of 45

3

1 THURSDAY, JUNE 25, 2009

3:00 P.M.

2

3

THE CLERK: CALLING THE MATTER OF MARTINEZ VERSUS

4 SCHWARZENEGGER. CIVIL ACTION NUMBER C-09-2306.

5

COUNSEL, PLEASE STEP FORWARD AND STATE YOUR

6 APPEARANCES FOR THE RECORD.

7

MS. LEYTON: YOUR HONOR, STACEY LEYTON FROM

8 ALTSHULER BERZON LLP ON BEHALF OF THE PLAINTIFFS.

9

I AM HERE WITH STEPHEN BERZON, SCOTT KRONLAND, PEDER

10 THOREEN AND ANNE ARKUSH.

11

MS. CARSON: GOOD AFTERNOON, YOUR HONOR, SUSAN

12 CARSON FROM THE ATTORNEY GENERAL'S OFFICE ON BEHALF OF

13 SCHWARZENEGGER.

14

MR. WOODS: GOOD AFTERNOON, YOUR HONOR, MICHAEL G.

15 WOODS FROM MCCORMICK BARSTOW ON BEHALF OF DEFENDANT COUNTY OF

16 FRESNO AND FRESNO IN-HOME SUPPORTIVE SERVICES PROVIDER PUBLIC

17 AUTHORITY.

18

THE COURT: JUST OUT OF CURIOSITY, DID YOU HAVE THE

19 JUNE 4TH HEARING?

20

MR. WOODS: YES.

21

THE COURT: WHAT HAPPENED?

22

MR. WOODS: ARE YOU --

23

THE COURT: JUNE 4TH FACT FINDING HEARING PURSUANT

24 TO THE FRESNO --

25

MR. WOODS: YES, WE DID.

DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC (510) 451-2930

Case4:09-cv-02306-CW Document143 Filed07/02/09 Page4 of 45

4

1

THE COURT: -- CBA?

2

MR. WOODS: THAT HEARING WAS LIMITED TO THE

3 REDUCTION BASED ON THE STATE'S REDUCTIONS OF THE REIMBURSEMENT

4 RATE TO THE COUNTY. AND THAT HAS BEEN SUBMITTED TO THE COURT

5 BY THE STATE. THAT ADVISORY OPINION WAS BY MR. TAMOUSH WHO

6 FOUND THAT BASED ON THE FEDERAL FUND REIMBURSEMENT RATE, IN

7 LOOKING ONLY AT THE REDUCTION BASED ON THE STATE LOWERING THE

8 REIMBURSEMENT RATE, HE DIDN'T FEEL THERE WAS A REASON FOR THE

9 COUNTY TO LOWER THE RATE BASED ON THE STATE'S LOWERING OF THE

10 REIMBURSEMENT RATE.

11

THE COURT: SO WHAT EFFECT DOES THAT HAVE?

12

MR. WOODS: IT HAS NO EFFECT.

13

THE COURT: OH.

14

MR. WOODS: WELL, IT HAS NO EFFECT IN THIS CASE FOR

15 THE COUNTY OF FRESNO BECAUSE THE COUNTY OF FRESNO -- THE

16 PURPOSE OF THE INJUNCTION AS SET FORTH BY THE PLAINTIFFS --

17

THE COURT: I JUST MEANT WHAT EFFECT DOES IT HAVE IN

18 THE REAL WORLD.

19

MR. WOODS: IN THE REAL WORLD, AGAIN, IT IS

20 SOMETHING THAT THE BOARD OF SUPERVISORS CAN CONSIDER, IT'S NOT

21 BOUND BY, IT IS AN ADVISORY OPINION, AND THE BOARD OF

22 SUPERVISORS HASN'T YET CONSIDERED IT.

23

THE COURT: OKAY.

24

I WOULD LIKE TO START WITH THE STATE TO GO AHEAD AND

25 GIVE THE ARGUMENT AGAINST THE PRELIMINARY INJUNCTION.

DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC (510) 451-2930

Case4:09-cv-02306-CW Document143 Filed07/02/09 Page5 of 45

5

1

MS. CARSON: SURE, YOUR HONOR.

2

WE ARE HERE TODAY BECAUSE PLAINTIFFS, UNIONS, A FEW

3 PROVIDERS AND BENEFICIARIES ARE SEEKING TO ENJOIN THE STATE'S

4 REDUCTION OF ITS CONTRIBUTION TO IN-HOME SUPPORTED SERVICES,

5 WORKERS' WAGES AND BENEFITS TO A LEVEL THAT IS STILL HIGHER

6 THAN A MAJORITY OF COUNTIES PAY, 36, INCLUDING LOS ANGELES

7 COUNTY WHICH ACCOUNTS FOR 42 PERCENT OF THE CASELOAD.

8

THE PLAINTIFFS BASE THEIR CHALLENGE ON ALLEGED

9 VIOLATIONS OF SECTION 1396(A)(30)(A) OF THE MEDICAID ACT AND

10 THE INTEGRATION REGULATIONS FOR THE AMERICANS WITH DISABILITIES

11 ACT AND THE REHABILITATION ACT.

12

THE COURT: LET'S START WITH --

13

MS. CARSON: NO REASONABLE -- I'M SORRY?

14

THE COURT: LET'S START WITH 30(A).

15

MS. CARSON: SURE.

16

PLAINTIFFS' CLAIM ESSENTIALLY THAT -- IT'S TWO PART,

17 ACTUALLY, AND I THINK WE CAN DISPENSE WITH WHAT THEY CALL THE

18 SUBSTANTIVE GUARANTEES RATHER QUICKLY.

19

THEY CLAIM THAT THEY HAVE --

20

THE COURT: START WITH THE OTHER ONE. THAT IS THE

21 ONE THAT INTERESTS ME --

22

MS. CARSON: OKAY.

23

THE COURT: -- THE MOST.

24

MS. CARSON: THAT'S FINE. YOU ALREADY KNOW ABOUT

25 THE OTHER ONE ANYWAY.

DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC (510) 451-2930

Case4:09-cv-02306-CW Document143 Filed07/02/09 Page6 of 45

6

1

THE COURT: THE PROCEDURAL ONE.

2

MS. CARSON: SURE.

3

THE LEGISLATURE DID -- THE PLAINTIFFS CLAIM THAT THE

4 LEGISLATURE DID NOT DO AN ANALYSIS OF EFFICIENCY ECONOMY

5 QUALITY OF CARE AND ACCESS PRIOR TO REDUCING THE STATE'S

6 CONTRIBUTION TO WAGES AND BENEFITS AND -- TO THE STATE'S WAGES

7 AND BENEFITS. LEGISLATURE WAS NOT REQUIRED TO CONDUCT ANALYSIS

8 IN THIS PARTICULAR CASE.

9

THE COURT: YOU CONCEDE THAT THEY DID NOT.

10

MS. CARSON: YES, I DO.

11

THE COURT: OKAY.

12

MS. CARSON: NOTHING IN THE STATUTE ITSELF REQUIRES

13 THAT SUCH AN ANALYSIS TAKE PLACE. THERE IS NOTHING IN THE

14 STATUTE WHICH IS A STATE PLAN PROVISION THAT SAYS THAT EVERY

15 STATE PLAN MUST PROVIDE FOR METHODS AND PROCEDURES RELATING TO

16 PAYMENTS FOR CARE AND SERVICES WHICH ARE TO ASSURE THAT

17 PAYMENTS ARE CONSISTENT WITH THE EFFICIENCY, ECONOMY, AND

18 QUALITY OF CARE, AND SHOULD PROVIDE SUFFICIENT ACCESS.

19

THE COURT: THAT'S WHAT THE REGULATION SAYS. YOU

20 ARE SAYING IT DOESN'T SAY THAT?

21

MS. CARSON: NO, THAT'S WHAT THE STATUTE SAYS.

22 THERE'S NOTHING ON THE FACE OF IT THAT SAYS THAT THE

23 LEGISLATURE MUST CONDUCT AN ANALYSIS PRIOR TO DOING ANYTHING

24 WITH REGARD TO THE SITUATION WE HAVE HERE, WHICH IS THE STATE

25 STATUTE THAT PROVIDES FOR A CONTRIBUTION TO WAGES AND BENEFITS.

DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC (510) 451-2930

Case4:09-cv-02306-CW Document143 Filed07/02/09 Page7 of 45

7

1

THE COURT: SOMEONE HAS TO DO SOMETHING BEFORE SUCH

2 AN ACTION IS TAKEN --

3

MS. CARSON: NO, THEY DO NOT.

4

THE COURT: -- BASED ON THE STATUTE.

5

MS. CARSON: I AM SORRY, YOUR HONOR, I DON'T READ

6 THE STATUTE THAT WAY. SO IT SAYS THEY HAVE TO PUT FORTH IN

7 THEIR STATE PLAN METHODS AND PROCEDURES AS TO HOW THEY WILL

8 DETERMINE WHAT THE PAYMENTS WILL BE.

9

IN FACT, THE STATE DID DO THAT AND STATE -- IN A

10 STATE PLAN FOR PERSONAL CARE SERVICES, AND THEY ARE ALSO

11 SUBSEQUENTLY -- THAT WAS IN 1994 -- SUBSEQUENTLY WE ALSO HAVE

12 AN IHSS PLUS WAIVER WHICH WAS APPROVED BY THE FEDERAL

13 GOVERNMENT IN 2004.

14

THE PLAINTIFFS HERE PRINCIPALLY RELY ON A RECENT

15 NINTH CIRCUIT DECISION IN CAL PHARMACISTS WHICH HELD THAT

16 HOSPITAL PLAINTIFFS IN THAT CASE WERE LIKELY TO PREVAIL ON

17 THEIR (SMALL A)30(A) CLAIM BECAUSE THE LEGISLATURE HAD FAILED

18 TO CONDUCT AN ANALYSIS POTENTIAL EFFECT OF AN ACROSS-THE-BOARD

19 REIMBURSEMENT RATE REDUCTION FOR HOSPITALS.

20

THE COURT: I WOULD GO BACK FURTHER TO ORTHOPAEDIC

21 V. BELSHE.

22

MS. CARSON: WE CAN GO THERE.

23

IN ORTHOPAEDIC, YOU HAD A SITUATION IN WHICH THE

24 PLAINTIFFS CHALLENGED REIMBURSEMENT RATES TO HOSPITALS IN A

25 SITUATION IN WHICH THE STATE, DEPARTMENT OF HEALTH SERVICES AT

DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC (510) 451-2930

Case4:09-cv-02306-CW Document143 Filed07/02/09 Page8 of 45

8

1 THE TIME, DID NOT CONSIDER THE HOSPITAL'S COSTS. THE NINTH

2 CIRCUIT IN THAT CASE, THE ONLY COURT IN THE ENTIRE COUNTRY TO

3 EVER SO HOLD SAID THAT --

4

THE COURT: YET THE ONE THAT I MUST FOLLOW.

5

MS. CARSON: SURE.

6

-- THE STATE MUST CONSIDER COSTS, AND IT REMANDED

7 BACK TO THE DISTRICT COURT AND SAID THAT THERE MUST BE -- THAT

8 THE COURT HAD NOT -- EXCUSE ME, I AM SORRY.

9

THE DEPARTMENT HAD NOT ADEQUATELY CONSIDERED THE

10 HOSPITAL COSTS WHEN RE-ADOPTING ITS RATES, AND THAT THAT ACTION

11 WAS ARBITRARY AND CAPRICIOUS.

12

IT REMANDED BACK TO THE DISTRICT COURT TO ORDER THE

13 DEPARTMENT TO UNDERTAKE RESPONSIBLE COST STUDIES THAT WOULD

14 PROVIDE RELIABLE DATA AS TO THE HOSPITAL'S COSTS AND PROVIDING

15 OUT-PATIENT SERVICES, WHICH WAS AT ISSUE IN THAT CASE, TO THE

16 END TO DETERMINE THE COST TO AN EFFICIENT HOSPITAL ECONOMICALLY

17 PROVIDING QUALITY CARE.

18

THE STATE MUST THEN SET THE RATES THAT HAVE SOME

19 REASONABLE RELATIONSHIP TO SUCH COST, THE STATE BEARING THE

20 BURDEN OF JUSTIFYING ANY RATE WILL SUBSTANTIALLY DEVIATE FROM

21 SUCH DETERMINED COSTS.

22

SO HERE WE HAVE A SITUATION IN WHICH THE STATE DOES

23 NOT DETERMINE THE RATE. THE STATE DETERMINES EVERY YEAR, UNDER

24 AN ANALYSIS -- EXCUSE ME, UNDER A REIMBURSEMENT SCHEME THAT HAS

25 BEEN APPROVED BY CMS, FEDERAL AGENCY, IN WHICH IT SETS A

DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC (510) 451-2930

Case4:09-cv-02306-CW Document143 Filed07/02/09 Page9 of 45

9

1 CONTRIBUTION LEVEL.

2

SO WE ARE NOT TALKING ABOUT REIMBURSEMENT RATES

3 DIRECTLY TO THE PROVIDERS HERE.

4

THE COURT: TRUE --

5

MS. CARSON: OKAY.

6

THE COURT: -- BUT THEY ARE CERTAINLY QUITE

7 INFLUENTIAL AND --

8

MS. CARSON: WELL, I WOULD TAKE ISSUE WITH THAT,

9 TOO, BUT I'LL GET THERE.

10

THE COURT: ARGUE IT BOTH WAYS BECAUSE IT MAY BE

11 THAT IT IS INFLUENTIAL IF NOT DETERMINATIVE --

12

MS. CARSON: OKAY.

13

THE COURT: -- SO I WOULD LIKE TO HEAR YOUR

14 POSITION.

15

MS. CARSON: SURE.

16

THERE HAS BEEN NO CHANGE IN THE METHODOLOGY HERE.

17 THERE HAS BEEN ABSOLUTELY NO CHANGE TO THE METHOD AND

18 PROCEDURES, AND THAT IS CONFIRMED, ACTUALLY, BY THE LETTER FROM

19 CMS DATED MAY 20TH. THE METHODOLOGY HAS BEEN IN PLACE SINCE

20 1994.

21

THE COURT: I'M SORRY, THE METHODOLOGY FOR WHAT?

22

MS. CARSON: FOR THE -- TO DETERMINE THE RATE, WHICH

23 INCLUDES WAGES AND BENEFITS, BUT ALSO INCLUDES ADMINISTRATIVE

24 COSTS AND ALL OF THAT FOR THIS PARTICULAR SERVICE.

25

SO, IN OTHER WORDS, WAGES AND BENEFITS ARE A

DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC (510) 451-2930

Case4:09-cv-02306-CW Document143 Filed07/02/09 Page10 of 45

10

1 COMPONENT OF THE RATE THAT IS PAID TO THE -- THAT IS PAID FOR

2 THIS PARTICULAR SERVICE, INCLUDING EMPLOYMENT TAXES AS WELL.

3

SECTION 12301.6 CLEARLY CONTEMPLATES CHANGES IN THE

4 LEVEL OF FUNDING FOR THE STATE'S SHARE; INDEED, IT HAS

5 INCREASED STEADILY OVER THE PAST EIGHT YEARS. THE REDUCTION,

6 AS A RESULT OF SUBSECTION (SMALL D)(6) REDUCES THAT

7 CONTRIBUTION BACK TO THE LEVEL IT WAS JUST TWO YEARS AGO. AND,

8 AGAIN, I WILL POINT OUT TO YOUR HONOR THAT IT IS STILL HIGHER

9 THAN IS PAID IN 36 COUNTIES THROUGHOUT THE STATE.

10

UNLIKE THE REIMBURSEMENT RATES SET BY THE STATE FOR

11 HOSPITALS, THERE IS NO WAY TO KNOW -- EXCUSE ME.

12

UNLIKE WITH REIMBURSEMENT RATES FOR HOSPITALS, THE

13 STATE DOES NOT SET THE RATES. IN FACT, UNIONS HAVE MORE SAY

14 HERE IN THE LEVEL OF WAGES AND BENEFITS PAID THAN THE STATE

15 DOES BECAUSE WAGES AND BENEFITS ARE DETERMINED THROUGH THE

16 COLLECTIVE BARGAINING PROCESS BETWEEN THE COUNTY PUBLIC

17 AUTHORITY AND THE UNION.

18

UNLIKE REIMBURSEMENT RATES SET BY THE STATE FOR

19 HOSPITALS, THERE IS NO WAY TO KNOW IN ADVANCE WHAT THE COUNTIES

20 WILL DO AND THE EVIDENCE NOW SHOWS THAT THAT IS IN FACT TRUE.

21

OUT OF THE 22 COUNTIES, WE ARE ONLY TALKING ABOUT 22

22 COUNTIES HERE, TWO -- EXCUSE ME, SIX COUNTIES HAVE INDICATED

23 THEY WILL REDUCE TO THE LEVEL THE STATE SET. SIX COUNTIES HAVE

24 INDICATED THEY WILL REDUCE SOME AMOUNT, AS LITTLE AS 25 CENTS

25 AN HOUR. TWO HAVE SAID THEY WILL INCREASE THEIR RATES. AND

DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC (510) 451-2930

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11

1 SIX HAVE TAKEN NO POSITION WHATSOEVER. THEY HAVE MOU'S OR

2 COLLECTIVE BARGAINING AGREEMENTS THAT ARE STILL IN FORCE AND

3 EFFECT AND THEY HAVE NOT DONE ANYTHING -- THE COUNTY HAS NOT

4 DONE ANYTHING TO CHANGE THAT.

5

MY UNDERSTANDING IS THAT THEY ARE COMING DUE

6 PROBABLY THIS FALL, BUT WE HAVE NO INDICATION WHAT THEY WILL

7 DO.

8

SO THE NINTH CIRCUIT FINDING, WHETHER YOU LOOK TO

9 ORTHOPAEDIC OR CAL PHARMACISTS, 30(A) CAN BE VIOLATED BY

10 FAILURE OF THE LEGISLATURE TO CONDUCT AN ANALYSIS IN THESE

11 CIRCUMSTANCES BEFORE ENACTING A CHANGE IN THE STATE'S SHARE

12 JUST DOESN'T FIT. THESE ARE NOT REIMBURSEMENT RATES. THERE'S

13 BEEN NO CHANGE IN THE METHODOLOGY. WE DO NOT HAVE -- THERE'S

14 NO STATE CONTROL OVER THE RATE, AND THE RATES VARY COUNTY BY

15 COUNTY.

16

NOW, AS TO SUBSTANTIVE GUARANTEES --

17

THE COURT: WHAT IF THERE WAS STATE CONTROL OVER THE

18 RATE? WHAT IF THE STATE CHANGE HYPOTHETICALLY DETERMINED THE

19 RATE?

20

MS. CARSON: WELL, YOUR HONOR, QUITE FRANKLY, I'M

21 REALLY STRUGGLING WITH THE REASONING OF CAL PHARMACIST. I

22 DON'T THINK THERE'S ANYTHING IN THE STATUTE, AND THERE'S

23 CERTAINLY NOTHING IN ORTHOPAEDIC THAT SUPPORTS THE NOTION THAT

24 THE LEGISLATURE HAS TO CONDUCT AN ANALYSIS BEFORE IT DOES

25 ANYTHING TO REIMBURSEMENT RATES.

DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC (510) 451-2930

Case4:09-cv-02306-CW Document143 Filed07/02/09 Page12 of 45

12

1

THE COURT: AGAIN, IF IT'S THE NINTH CIRCUIT --

2

MS. CARSON: RIGHT --

3

THE COURT: -- I MUST FOLLOW IT.

4

MS. CARSON: I UNDERSTAND THAT.

5

BUT I'M JUST SAYING I, MYSELF, AM STRUGGLING WITH

6 THAT BECAUSE WHERE YOU GET THAT FROM ORTHOPAEDIC OR THE

7 LANGUAGE OF THE STATUTE, I DON'T SEE IT. I HAVE NO IDEA.

8

SO, IN TERMS OF THE CLAIM BY PLAINTIFFS THAT THEY

9 HAVE -- THERE ARE SUBSTANTIVE GUARANTEES TO QUALITY AND ACCESS,

10 THIS IS NOT -- THIS ACTION IS NOT BROUGHT UNDER 1983. AS YOUR

11 HONOR WELL KNOWS, SANCHEZ DECIDED, THE NINTH CIRCUIT, YOU,

12 YOURSELF, AND THE NINTH CIRCUIT SAID THERE'S NO PRIVATE RIGHT

13 OF ACTION. CONGRESS DID NOT INTEND FOR BENEFICIARIES OR

14 PROVIDERS TO HAVE ANY RIGHT TO ENFORCE THIS PROVISION, WE ARE

15 SIMPLY UNDER THE SUPREMACY CLAUSE.

16

THE COURT: THE COURT SAID IT COULD BE PURSUED UNDER

17 THE SUPREMACY CLAUSE, WHICH IS HOW THESE PLAINTIFFS ARE DOING

18 IT.

19

MS. CARSON: RIGHT. AND CAL PHARMACISTS -- EXCUSE

20 ME, INDEPENDENT LIVING IS MERELY JURISDICTIONAL, THEY HAVE

21 STANDING TO BRING THE ACTION. THERE'S NO DISCUSSION ABOUT

22 WHETHER THEY HAVE A RIGHT TO QUALITY AND ACCESS.

23

IN OTHER WORDS, IT EVEN GOES BEYOND WHAT THE COURT

24 CONSIDERED IN CAL PHARMACISTS. THE PLAINTIFFS HERE ARE SAYING

25 WE HAVE A RIGHT TO QUALITY AND ACCESS. CAL PHARMACISTS DOESN'T

DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC (510) 451-2930

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13

1 ADDRESS THAT. ORTHOPAEDIC DOESN'T ADDRESS IT, AND INDEPENDENT

2 LIVING DOES NOT ADDRESS THAT ISSUE.

3

IN ADDITION, THERE IS, IN FACT, NO PROBLEM WITH

4 QUALITY AND ACCESS HERE.

5

THE COURT: YOU ARE SAYING THEY DON'T HAVE A RIGHT

6 TO IT?

7

MS. CARSON: THAT'S EXACTLY RIGHT.

8

THERE HAVE BEEN NO -- THERE'S NO COMPLAINT, NO

9 ALLEGATION THE ACTUAL QUALITY OF THE SERVICE IS DEFICIENT. THE

10 PROVIDER -- THE EVIDENCE WE PUT BEFORE THE COURT INDICATES THAT

11 THE BENEFICIARIES HAVE THE POWER TO HIRE, FIRE, AND DIRECT THE

12 SERVICES THAT ARE PROVIDED TO THEM.

13

THE COURT: THIS IS A FALLBACK. EVEN IF THEY DO

14 HAVE A RIGHT TO QUALITY AND ACCESS, THEY HAVE QUALITY AND

15 ACCESS.

16

MS. CARSON: EXACTLY.

17

I AM JUST TRYING TO COVER ALL MY BASES.

18

THE COURT: I JUST WANTED TO MAKE SURE I WAS

19 FOLLOWING YOU.

20

MS. CARSON: SURE.

21

AND ALSO, AS IS SET FORTH ESPECIALLY IN THE IHSS

22 PLUS WAIVER, WHICH I BELIEVE IS AN EXHIBIT TO TOBY DOUGLAS'

23 DECLARATION, THE QUALITY THAT'S DELIVERED IS MONITORED BY THE

24 COUNTIES, BY THE DEPARTMENT OF SOCIAL SERVICES, BY THE

25 DEPARTMENT OF HEALTH CARE SERVICES, AND ALSO BY THE FEDERAL

DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC (510) 451-2930

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14

1 GOVERNMENT.

2

SO, THE ONLY ARGUMENT WE ARE LEFT WITH HERE IS THAT

3 BENEFICIARIES OR RECIPIENTS WILL GET INFERIOR CARE IN SNIPS,

4 AND I QUESTION THAT. THERE IS NO EVIDENCE OF THAT, ACTUALLY.

5 IT IS JUST HEARSAY OPINION.

6

THERE'S ALSO NO EVIDENCE THAT THERE IS A LACK OF

7 ACCESS. THERE IS NO EVIDENCE BEFORE THIS COURT THAT THERE IS A

8 SINGLE BENEFICIARY WHO HAS GONE WITHOUT CARE OR WHO WILL GO

9 WITHOUT CARE COME JULY 1ST; THAT EVERY COUNTY MAINTAINS A

10 REGISTRY, HAS AN EMERGENCY BACKUP SYSTEM, AND, IN FACT,

11 62 PERCENT OF PROVIDERS ARE RELATED TO THE BENEFICIARIES THEY

12 SERVE AND 50 PERCENT LIVE WITH THE BENEFICIARY WITH WHOM THEY

13 SERVE. SO HIGHLY SUSPECT.

14

I DID ALSO WANT TO JUST ADDRESS THE ADA AND THE

15 REHAB CLAIMS. PLAINTIFFS' ARGUMENT ESSENTIALLY IS THAT AS A

16 RESULT OF THE STATE'S -- THE REDUCTION OF THE STATE'S

17 CONTRIBUTION, RECIPIENTS WILL GO WITHOUT SERVICES AND SOME WILL

18 GO INTO SKILLED NURSING FACILITIES.

19

THERE ARE SERIOUS PROBLEMS WITH CAUSATION HERE ALL

20 BASED ON ASSUMPTION UPON ASSUMPTION. IN ORDER TO GET FROM THE

21 REDUCTION OF THE STATE'S SHARE TO THE WAGES AND BENEFITS TO

22 THOUSANDS OF PEOPLE WHO WILL BE ADMITTED TO SNF'S, YOU HAVE TO

23 MAKE THE FOLLOWING ASSUMPTIONS. FIRST, THAT COUNTIES WILL

24 REDUCE WAGES AND BENEFITS IN RESPONSE TO THE REDUCTION IN THE

25 STATE'S SHARE.

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15

1

THE COURT: SOME AT LEAST HAVE.

2

MS. CARSON: SOME HAVE INDICATED THAT THEY WILL,

3 YES.

4

THEN THAT ASSUMES THAT THE CURRENT PROVIDER WILL

5 LEAVE BECAUSE OF A DECREASE. SO A DECREASE AS LITTLE AS 25

6 CENTS AN HOUR IN THIS ECONOMY, GIVEN HIGH UNEMPLOYMENT

7 ESPECIALLY FOR WAGE LOW WORKERS, THAT ASSUMES THEN THAT THAT

8 CURRENT PROVIDER CANNOT BE REPLACED.

9

AND THEN YOU HAVE TO ASSUME THAT IF THE CURRENT

10 PROVIDER IS NOT REPLACED, THAT ONLY, THE ONLY OPTION IS A

11 SKILLED NURSING FACILITY. SO, THIS IS JUST ENTIRELY TOO

12 SPECULATIVE.

13

THE COURT: WELL, ONE NECESSARILY CAN'T PRESENT

14 EVIDENCE OF SOMETHING THAT WILL HAPPEN IN THE FUTURE THAT

15 HASN'T HAPPENED YET, SO THE PLAINTIFFS HAVE SUBMITTED

16 DECLARATIONS OF PEOPLE WHO NEED CARE, PEOPLE WHO GIVE CARE, OF

17 AN EXPERT WHO SAY THAT THESE THINGS ARE VERY LIKELY TO HAPPEN.

18

WHAT IS YOUR FACTUAL COUNTERPOINT TO THAT?

19

MS. CARSON: MY FACTUAL COUNTERPOINT IS THAT WE PUT

20 IN EVIDENCE, I BELIEVE IT'S ATTACHED TO EILEEN CARROLL'S

21 DECLARATION THAT THERE ARE REGISTRIES THAT ALL TOLLED, PROBABLY

22 OVER 14,000 PEOPLE ARE ON, LISTED ON REGISTRIES.

23

THERE'S ALSO EVIDENCE IN THE RECORD THAT THERE ARE

24 REGISTRIES THAT -- SOME COUNTIES HAVE CLOSED THEIR REGISTRIES

25 AND WILL NOT ENROLL FURTHER. THEY FEEL THEY HAVE ENOUGH PEOPLE

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1 ON THE REGISTRIES; THAT THE COUNTIES ARE REQUIRED TO REPORT TO

2 THE DEPARTMENT OF SOCIAL SERVICES WHICH THEN REPORTS TO THE

3 LEGISLATURE, AND LOOKS AT ALL OF THESE ISSUES. THERE IS NOT

4 ONE HINT THERE WILL BE A PROBLEM.

5

AGAIN, WE ARE GOING BACK TO THE STATE'S CONTRIBUTION

6 THAT WAS PAID TWO YEARS AGO, AND WE HAVE IN THE RECORD AT LEAST

7 42 PERCENT OF THE CASELOAD IS IN L.A. AND THEY DON'T EVEN PAY

8 WHAT THE STATE PAYS RIGHT NOW. SO, ON TOP OF THAT, I DON'T

9 KNOW WHAT THE ACTUAL PERCENTAGE IS, BUT IT'S STILL MORE THAN

10 50 PERCENT, PROBABLY CLOSER TO 60 OR 70 PERCENT OF PEOPLE ARE

11 MAKING LESS THAN WHAT THE RATE THAT THE STATE HAS SET, AND WE

12 DON'T HAVE AN ACCESS PROBLEM HERE.

13

SO, A FEW PROVIDERS SAYING IF I MAKE LESS MONEY, IT

14 WILL BE TOUGHER TO MEET EXPENSES, WELL, YES, THAT'S PROBABLY

15 RIGHT, BUT I DON'T KNOW WHAT THAT MEANS. IT'S JUST SAYING IT'S

16 GOING TO BE HARDER. AND I BELIEVE DR. BROWN REVEALED THAT

17 DR. HOWES' EXPERT TESTIMONY, VERY FLAWED.

18

THE COURT: DO YOU AGREE THAT IT IS LESS EXPENSIVE

19 FOR THE STATE TO HAVE AN IN-HOME PROVIDER THAN TO HAVE SOMEONE

20 IN A STATE-FINANCED SKILLED NURSING FACILITY?

21

MS. CARSON: PROBABLY, BASED ON MY KNOWLEDGE ABOUT

22 THIS, PROBABLY, YES, THAT'S PROBABLY TRUE. BUT, AGAIN, AS

23 DR. BROWN SAID, DR. HOWES DID NOT BACK OUT THAT COST, SO I

24 DON'T KNOW FOR SURE, BUT PROBABLY.

25

THE COURT: DID YOU WANT TO RESPOND?

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1

MS. LEYTON: YES, YOUR HONOR. I HAVE A FEW

2 RESPONSES.

3

THE STATE HAS TAKEN THE POSITION THAT IT DOES NOT

4 READ THE STATUTE, DOES NOT READ SECTION 30(A) TO REQUIRE THE

5 LEGISLATURE TO HAVE CONSIDERED ACCESS AND QUALITY BEFORE

6 IMPLEMENTING THE REDUCTION IN RATES. BUT SINCE 1997, IT HAS

7 BEEN CLEAR THAT IN THE NINTH CIRCUIT, SECTION 30(A) DOES IMPOSE

8 THE REQUIREMENT THAT BEFORE PAYMENTS CAN BE MODIFIED, THE STATE

9 MUST CONSIDER THE IMPACT THAT THE CHANGE WILL HAVE ON ACCESS

10 AND QUALITY.

11

THE STATE OF CALIFORNIA HAS CHOSEN TO REPEATEDLY

12 DISREGARD THAT --

13

THE COURT: YOU ARE REFERRING TO ORTHOPAEDIC

14 HOSPITAL?

15

MS. LEYTON: YES, ORTHOPAEDIC HOSPITAL. THE STATE

16 HAS CHOSEN TO REPEATEDLY DISREGARD THE MANDATE OF ORTHOPAEDIC

17 HOSPITAL. TIME AND TIME AGAIN THE STATE HAS BEEN ENJOINED WHEN

18 IT HAS DISREGARDED THAT MANDATE AND CLAIMED THAT THE BUDGET

19 PROVIDES AN EXCUSE FOR THAT DISREGARD.

20

THE COURT: BY "THE STATE", YOU MEAN THE

21 LEGISLATURE?

22

MS. LEYTON: THE NINTH CIRCUIT --

23

THE COURT: OR SOME STATE AGENCY THAT WOULD REPORT

24 TO THE LEGISLATURE, OR WHAT?

25

MS. LEYTON: WELL, THE NINTH CIRCUIT HAS MADE CLEAR

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1 THAT IT DOES NOT MATTER WHETHER IT IS THE STATE AGENCY THAT IS

2 MAKING THE DECISION TO CHANGE THE RATE; THAT EVEN WHEN THE

3 STATE AGENCY HAS DELEGATED THAT AUTHORITY TO SOME OTHER ENTITY,

4 OR EVEN WHEN IT IS THE LEGISLATURE IMPOSING THAT DECISION UPON

5 THE STATE AGENCY THAT THE MANDATES OF SECTION 30(A) APPLY.

6

THE COURT: SOMEBODY HAS TO DO IT.

7

MS. LEYTON: THAT'S RIGHT. AND IT HAS TO BE THE

8 DECISION-MAKER THAT DOES IT. SINCE IT IS THE LEGISLATURE THAT

9 PASSED SB6, IT MUST BE THE LEGISLATURE THAT CONSIDERED THE

10 IMPACT THAT THIS WOULD HAVE ON ACCESS AND QUALITY.

11

THE STATE SPENDS A LOT OF TIME RE-ARGUING THIS NINTH

12 CIRCUIT PRECEDENT, BUT THERE'S CLEARLY NO BASIS TO DISREGARD IT

13 IN THIS CASE. THE STATE ARGUES THAT IT SHOULD BE DISREGARDED

14 BECAUSE IT DELEGATED PART OF ITS RATE SETTING AUTHORITY TO

15 COUNTIES, AND SO SOMEHOW THAT EXEMPTS IT FROM SECTION 30(A).

16

THE STATE IS BOUND BY SECTION 30(A) AND BOUND BY THE

17 REQUIREMENTS OF THE MEDICAID STATUTE AS A CONDITION OF

18 PARTICIPATION IN THE MEDICAID PROGRAM. THE STATE DOES NOT

19 POINT TO ANY PROVISION OF FEDERAL LAW THAT PROVIDES AN

20 EXEMPTION TO SECTION 30(A) WHEN THE STATE HAS DELEGATED PART OF

21 ITS RATE-SETTING AUTHORITY.

22

MOREOVER, THE STATE ENACTMENT SB6 OR 12306.1(D)6,

23 RESCINDED THE APPROVAL OF ALL EXISTING COUNTY RATES THAT WERE

24 ABOVE 9.50 PER HOUR, AND THE STATE THEN SUBSEQUENTLY TOLD

25 COUNTIES THAT IF THEY HAD RATES THAT WERE ABOVE 9.50 PER HOUR,

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1 THEY NEEDED TO SUBMIT RATE CHANGE REQUESTS.

2

WE PUT IN THAT EVIDENCE AS EXHIBITS TO THE CAROL

3 GOLUBOCK DECLARATION --

4

THE COURT: THE COUNTIES CAN INCREASE IT IF THEY

5 WANT TO PAY THE DIFFERENCE THEMSELVES, AS I UNDERSTAND IT.

6

MS. LEYTON: YES. THE COUNTIES COULD DECIDE THAT

7 THEY WANT TO KICK IN ADDITIONAL MONEY IN ORDER TO KEEP THE RATE

8 AT CURRENT LEVELS.

9

THE COURT: THE STATE DOESN'T FORCE THEM TO LOWER

10 THE RATES, THEY JUST SAY WE ARE ONLY GOING TO CONTRIBUTE SO

11 MUCH AND IF YOU WANT TO PAY MORE, YOU HAVE TO PAY IT YOURSELF.

12 ISN'T --

13

MS. LEYTON: WELL, THE STATE DID CHANGE THE RATES.

14 THE STATE HAS -- IF YOU LOOK AT THE EXHIBITS TO THE

15 DECLARATIONS THAT WE HAVE SUBMITTED, AND WE SUBMITTED AS PART

16 OF OUR REQUEST FOR JUDICIAL NOTICE, WE SUBMITTED THE ALL COUNTY

17 LETTERS THAT THE STATE SENT OUT. THOSE LETTERS TOLD ALL

18 COUNTIES, NOT JUST THOSE THAT WANTED TO REDUCE, THAT THEY HAD

19 TO RE-SUBMIT ANY RATES ABOVE 9.50 PER HOUR BECAUSE THE STATE

20 CONSIDERED THAT A RATE CHANGE.

21

AND THE REASON FOR THAT IS THAT THE STATE HAS

22 INTERPRETED THAT -- THE STATE PROCESS SETS UP THAT THE AMOUNT

23 THAT THE STATE WILL CONTRIBUTE TOWARDS THE RATE IS A PART OF

24 RATE SETTING; THAT THE STATE'S APPROVAL OF ALL RATES IS

25 CONDITIONAL UPON THERE BEING ENOUGH MONEY IN THE BUDGET TO FUND

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1 THOSE RATES. SO THE STATE CONSTRUED 12301.6(D)6 TO RESCIND THE

2 STATE'S APPROVAL OF ALL RATES THAT WERE ABOVE 9.50.

3

NOW, YOU ARE RIGHT, YOUR HONOR, THAT THE COUNTIES

4 COULD KICK IN ADDITIONAL MONEY IF THEY WANTED TO IN ORDER TO

5 KEEP THE RATES HIGHER AND IF THEY HAD THE RESOURCES TO DO SO.

6 HOWEVER, THE ORTHOPAEDIC HOSPITAL CASE MAKES CLEAR THAT JUST

7 BECAUSE THERE WILL BE DE FACTO ACCESS, JUST BECAUSE SOME OTHER

8 LAW WILL REQUIRE THE PROVISION OF ACCESS, THAT DOESN'T MEAN

9 THAT THE STATE CAN REDUCE ITS PAYMENTS TO AMOUNTS THAT DO NOT

10 GUARANTEE ACCESS AND QUALITY.

11

IN ORTHOPAEDIC HOSPITAL, THERE WAS DE FACTO ACCESS

12 BECAUSE HOSPITALS WERE REQUIRED BY OTHER PROVISIONS OF FEDERAL

13 LAW TO PROVIDE EMERGENCY CARE, BUT THE NINTH CIRCUIT REJECTED

14 THAT DEFENSE AND HELD THAT THE STATE STILL HAD TO SET ITS

15 PAYMENTS AT A LEVEL THAT GUARANTEED ACCESS AND QUALITY, AND

16 STILL HAD TO CONSIDER ACCESS AND QUALITY WHEN IT WAS REDUCING

17 THOSE PAYMENTS.

18

IN ADDITION, THE STATE ACKNOWLEDGES THAT IT REVIEWS

19 AND APPROVES ALL RATE CHANGES. SO ANY RATE CHANGE THAT A

20 COUNTY SUBMITS WILL BE REVIEWED BY THE STATE, AND THE STATE

21 SAYS THAT IT REVIEWS THOSE REQUESTS FOR COMPLIANCE WITH STATE

22 AND FEDERAL LAW. BUT THEN THE STATE ACKNOWLEDGES THAT IT DOES

23 NOT CONSIDER SECTION 30(A) OF THE MEDICAID STATUTE TO BE PART

24 OF WHAT IT REVIEWS THOSE RATES FOR. INSTEAD, IT WILL APPROVE

25 ALL RATES AS LONG AS THEY PAY ABOVE THE MINIMUM WAGE.

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1

THE NINTH CIRCUIT LAW MAKES CLEAR THAT THE FACT THAT

2 SOMEONE OTHER THAN THE SINGLE STATE AGENCY MADE THE DECISION TO

3 REDUCE RATES DOES NOT INSULATE THAT DECISION FROM COMPLIANCE

4 WITH THE REQUIREMENTS OF SECTION 30(A).

5

IN ADDITION, THE STATE SEEMS TO BE MAKING THE

6 ARGUMENT HERE THAT THE WAGES AND BENEFITS THAT ARE PAID TO

7 PROVIDERS DO NOT COUNT AS REIMBURSEMENT RATES. THE SECTION

8 30(A) SPEAKS OF PAYMENTS TO PROVIDERS. THERE IS NO QUESTION

9 THAT THESE ARE PAYMENTS TO PROVIDERS AND THAT IF THEY -- AND

10 THAT THESE PAYMENTS EFFECT THE ACCESS TO CARE AND QUALITY OF

11 CARE OF IHSS RECIPIENTS.

12

WE WOULD SUBMIT THAT WE HAVE ALSO DEMONSTRATED

13 IRREPARABLE HARM, THAT UNDER THE CALIFORNIA PHARMACISTS CASE,

14 IT IS CLEAR THAT THE LOSS OF INCOME TO MEDICAID PROVIDERS

15 COUNTS AS IRREPARABLE HARM FOR PURPOSES OF OBTAINING AN

16 INJUNCTION UNDER THE MEDICAID STATUTE.

17

BUT HERE WE ARE NOT DEALING WITH PHARMACIES, WE ARE

18 DEALING WITH LOW-WAGE WORKERS WHERE 25 CENTS AN HOUR, A DOLLAR

19 PER HOUR CAN MAKE THE DIFFERENCE FROM BEING ABLE TO PAY FOR

20 MEDICATION OR NOT PAY FOR MEDICATION, PAY FOR BASIC LIFE

21 NECESSITIES, AND WE HAVE SUBMITTED SUBSTANTIAL EVIDENCE OF THE

22 HARM THAT PROVIDERS WILL SUFFER IF THIS RATE CHANGE GOES INTO

23 EFFECT.

24

WE HAVE ALSO SUBMITTED SUBSTANTIAL EVIDENCE FROM

25 CONSUMERS, AND THOSE ARE NOT, AS YOUR HONOR ACKNOWLEDGED, IT IS

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22

1 NECESSARILY PREDICT UPON, THESE CHANGES HAVE NOT YET GONE INTO

2 EFFECT. SO PROVIDERS AND CONSUMERS ARE PREDICTING WHAT WILL

3 HAPPEN IF THESE RATE CHANGES TAKE EFFECT.

4

WE HAVE SUBMITTED SUBSTANTIAL EVIDENCE AND

5 EXPLANATION OF WHY CONSUMERS BELIEVE THEY WILL LOSE THEIR

6 PROVIDERS, WHY PROVIDERS WILL BE FORCED TO TAKE OTHER JOBS AND

7 WHY THEY HAVE JOBS THAT ARE AVAILABLE TO THEM EVEN IN THIS

8 ECONOMY, AND WE HAVE SUBMITTED SUBSTANTIAL EVIDENCE THAT THIS

9 TURNOVER WILL RESULT IN VACANCIES AND WHAT THIS WILL MEAN FOR

10 IHSS CONSUMERS.

11

THE STATE HAS SUBMITTED EVIDENCE THAT THERE ARE

12 PEOPLE ON REGISTRIES, BUT THE STATE'S OWN EVIDENCE ACKNOWLEDGES

13 THAT THERE ARE ALREADY IHSS CONSUMERS HAVING TREMENDOUS

14 DIFFICULTY FINDING PROVIDERS TO PENCIL FILL THOSE NEEDS. THOSE

15 TEND TO BE PEOPLE WHO REQUIRE OVERNIGHT CARE, PEOPLE WHO HAVE

16 MENTAL HEALTH ISSUES, PEOPLE WHO NEED TO BE LIFTED BY THEIR

17 PROVIDERS; THAT THOSE INDIVIDUALS ARE ALREADY FACING ACCESS

18 DIFFICULTIES. AND THIS COURT CAN CONSIDER THAT AS PART OF

19 DETERMINING THE LIKELIHOOD THAT CONSUMERS WILL SUFFER IF THIS

20 RATE CHANGE GOES INTO EFFECT.

21

WE'VE ALSO EXPLAINED THAT THE NUMBER OF PEOPLE ON

22 THOSE REGISTRIES ARE THE NUMBER OF PEOPLE WHO ARE ON THE

23 REGISTRIES AT THE CURRENT WAGE RATE. AND WE'VE SUBMITTED

24 DECLARATIONS FROM IHSS CONSUMERS WHO HAVE EXPLAINED THAT WHEN

25 THEY HAVE TRIED TO OBTAIN HELP THROUGH THE PROVIDER REGISTRIES,

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1 IT HAS NOT WORKED FOR THEM.

2

THE COURT: THESE ARGUMENTS ALSO GO TO YOUR

3 SUBSTANTIVE 30(A) CLAIM AND YOUR ADA INTEGRATION CLAIM --

4

MS. LEYTON: YES.

5

THE COURT: -- YOUR IRREPARABLE HARM CLAIM IS

6 BASICALLY THE SAME ARGUMENT, I TAKE IT?

7

MS. LEYTON: YES, YOUR HONOR. AS FAR AS THE

8 CONSUMERS, IT IS BASICALLY THE SAME ARGUMENT.

9

WE WOULD SUBMIT THAT THE HARM TO THE PROVIDERS ALONE

10 WOULD ESTABLISH IRREPARABLE HARM SUFFICIENT TO JUSTIFY

11 PRELIMINARY INJUNCTION ON THE PROCEDURAL MEDICAID CLAIM. BUT

12 THE HARM TO CONSUMERS IS RELEVANT TO BOTH THE IRREPARABLE HARM

13 INQUIRY AS WELL AS THE SUBSTANTIVE MEDICAID AND SUBSTANTIVE ADA

14 CLAIMS.

15

WE ARE ALSO ASKING YOU --

16

THE COURT: THE PROCEDURAL ISSUE WOULD BE SUFFICIENT

17 TO ENJOIN THE REDUCTION, I TAKE IT?

18

MS. LEYTON: THAT IS CORRECT. WE ACKNOWLEDGE THAT

19 YOU DO NOT NEED TO REACH THE SUBSTANTIVE MEDICAID CLAIM AND THE

20 ADA CLAIM IF YOU RULE IN OUR FAVOR ON THE PROCEDURAL MEDICAID

21 CLAIM, ALTHOUGH WE WOULD ASK THAT YOU REACH THOSE ISSUES, AND

22 WE BELIEVE THAT WE HAVE DEMONSTRATED, DESPITE BEING HAMPERED BY

23 THE STATE'S FAILURE TO ANALYZE THE EFFECT OF THESE CUTS ON

24 ACCESS AND QUALITY, WE BELIEVE THAT WE HAVE SUBMITTED ADEQUATE

25 EVIDENCE TO ESTABLISH A SUBSTANTIAL LIKELIHOOD OF SUCCESS ON

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1 THOSE CLAIMS AS WELL, AND TO OBTAIN A STATUS QUO INJUNCTION IN

2 RELATION TO THOSE CLAIMS.

3

THE COURT: IN THAT EVENT, THE STATE, I SUPPOSE, CAN

4 GO BACK AND DO THE ANALYSIS AND SEE WHAT IT FOUND.

5

MS. LEYTON: YES. IF THIS COURT ENJOINED THE CUTS

6 FOR THE PROCEDURAL VIOLATION ONLY, THEN THE STATE CAN GO BACK

7 AND DO AN ANALYSIS.

8

AND WE WOULD SUBMIT THAT IF THE STATE DOES THAT

9 ANALYSIS, IT WILL CONCLUDE THAT THERE WILL BE A NEGATIVE IMPACT

10 ON ACCESS AND QUALITY. AND WE WOULD HOPE THAT THE STATE WOULD

11 NOT BE BACK BEFORE YOU WITH A NEW PROVIDER PAYMENT CUT.

12

HOWEVER, IF THIS COURT WANTS TO ENSURE THAT THE

13 STATE DOES NOT GO THROUGH THAT EXERCISE BECAUSE THE COURT

14 BELIEVES THAT WE HAVE ALREADY SUBMITTED ADEQUATE EVIDENCE OF

15 IRREPARABLE -- OF HARM TO CONSUMERS BASED ON THE DEPRIVATION OF

16 ACCESS AND THE DECLINE IN QUALITY, THEN THIS COURT CAN REACH

17 THOSE.

18

I ALSO WOULD LIKE TO MAKE ONE POINT IN RELATION TO

19 THE QUALITY POINT. THE STATE POINTS OUT THAT IT DOES HAVE

20 MEASURES OF QUALITY AND OTHER WAYS OF ENSURING QUALITY IN THE

21 IHSS PROGRAM. THAT HAS BEEN TRUE IN OTHER NINTH CIRCUIT CASES

22 AS WELL, INCLUDING ORTHOPAEDIC HOSPITAL WHERE THE STATE MADE

23 THE ARGUMENT THAT IT HAD OTHER MEASURES TO ASSURE QUALITY IN

24 THE PROGRAM. BUT WHAT ORTHOPAEDIC HOSPITAL HELD IS THAT THE

25 STATE MUST SET PAYMENTS THAT ARE CONSISTENT WITH QUALITY.

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1

AND THE SPECIFIC QUALITY ISSUE THAT WE ARE TALKING

2 ABOUT IS THE QUALITY, THE DEPRIVATION OF QUALITY THAT WILL

3 RESULT IF PEOPLE LOSE THEIR PROVIDERS, IF THEY SUFFER PROVIDER

4 TURNOVER, GAPS IN SERVICE WHILE THEY ARE LOOKING FOR PROVIDERS,

5 IF THEY ARE FORCED TO HAVE FEWER IHSS HOURS THAN THEY ARE

6 AUTHORIZED FOR BECAUSE THEY CAN'T FIND ENOUGH PROVIDERS TO WORK

7 THOSE HOURS, AND FOR SOME PEOPLE IF THEY WILL BE DEPRIVED OF

8 IHSS SERVICES ALTOGETHER BECAUSE OF THE RATE CHANGE.

9

THE COURT: DO YOU HAVE ANY COMMENT ON COUNSEL'S

10 PROBLEM WITH CALIFORNIA PHARMACISTS?

11

MS. LEYTON: I WOULD POINT OUT THAT IT IS ACTUALLY

12 NOT ONLY THE NINTH CIRCUIT THAT HAS READ SECTION 30(A) IN THIS

13 MATTER. THE EIGHTH CIRCUIT HAS AND A NUMBER OF FEDERAL

14 DISTRICT COURTS HAVE AS WELL, BUT AS YOUR HONOR POINTED OUT,

15 THIS COURT IS BOUND BY CALIFORNIA PHARMACISTS.

16

I CERTAINLY DON'T THINK IT'S AN UNREASONABLE

17 READING. IF IT TURNS OUT THAT THE STATE HAS CHANGED RATES IN A

18 WAY -- THE STATE HAS CHANGED RATES WITHOUT CONSIDERING THE

19 EFFECT THAT THAT RATE CHANGE WILL HAVE ON ACCESS AND QUALITY, I

20 THINK THAT SHOWS THAT THE PROVISIONS IN THE STATE PLAN ARE NOT

21 ADEQUATE TO ENSURE ACCESS AND QUALITY AND TO ENSURE

22 CONSIDERATION OF THOSE FACTORS.

23

SO I CERTAINLY DO NOT THINK IT'S AN UNREASONABLE

24 READING OF SECTION 30(A), BUT THE MORE IMPORTANT POINT BEING

25 THAT THAT IS THE GOVERNING AUTHORITY IN THIS CIRCUIT.

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1

THE COURT: DID YOU WANT TO REPLY BRIEFLY?

2

MS. CARSON: WELL, I THINK I EXPLAINED THE

3 DIFFERENCES IN CAL PHARMACISTS. I THINK --

4

THE COURT: NO, I DIDN'T MEAN JUST TO THAT. SHE --

5

MS. CARSON: I THINK --

6

THE COURT: COUNSEL IS FINISHED WITH HER ARGUMENT,

7 ARE YOU NOT?

8

MS. LEYTON: YES, YOUR HONOR.

9

THE COURT: SO, TO ANYTHING, IF YOU WANTED TO REPLY

10 BRIEFLY TO ANYTHING THAT COUNSEL SAID, YOU MAY DO SO.

11

MS. CARSON: WELL, I THINK THAT WE WELL-ESTABLISHED

12 THAT THE EVIDENCE THAT THEY SUBMITTED FROM THEIR DR. HOWES AS

13 WELL AS FROM THE PROVIDERS AND BENEFICIARIES AND FROM OTHERS

14 WAS HIGHLY SPECULATIVE AND NOT AT ALL DETERMINATIVE, ESPECIALLY

15 THE EXPERT, DR. HOWES' DECLARATION, AND FOUND IT QUITE

16 INTERESTING THAT IN A REPLY OR SUPPLEMENTAL DECLARATION JUST

17 SAID, WELL, THIS IS THE BEST I CAN DO GIVEN THE SHORT TIME

18 FRAME.

19

WELL, I HAD TWO DAYS TO GET AN EXPERT, AND DR. BROWN

20 WAS ABLE TO LOOK AT HER ANALYSIS AND FOUND VERY SERIOUS FLAWS

21 IN THAT ANALYSIS. SO I DON'T BELIEVE THAT THAT IS ANY EVIDENCE

22 THAT YOU SHOULD GIVE ANY CREDENCE TO.

23

AS FAR AS PROVIDERS COMING FORWARD AND SAYING THEY

24 MAY HAVE DIFFICULTY PAYING THE RENT OR WHATEVER THAT IS, WHILE

25 I AM NOT UNSYMPATHETIC, THOSE ARE NOT THE KIND OF COSTS AT

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1 ISSUE IN ORTHOPAEDIC OR EVEN IN CAL PHARMACISTS. THOSE ARE

2 COSTS THAT ARE INCURRED IN PROVIDING THE CERTAIN SERVICE TO THE

3 BENEFICIARIES. THERE ARE NO COSTS ASSOCIATED HERE WITH

4 PROVIDING BENEFICIARIES WITH THE SERVICE. IT'S TRUE IT IS JUST

5 A WAGE, EMPLOYMENT WAGE AND BENEFIT.

6

AGAIN, I REMIND THE COURT THAT FOR 36 COUNTIES OUT

7 OF THE 58, THIS HAS ABSOLUTELY NO IMPACT; THAT THOSE COUNTIES

8 INCLUDING, LOS ANGELES, SAN DIEGO, AND SOME OTHER BIG COUNTIES

9 PAY LESS THAN WHAT THE STATE IS GOING TO CONTRIBUTE TO THOSE

10 WAGES.

11

AGAIN, TWO COUNTIES SOUGHT THAT TO INCREASE THEIR

12 WAGES GIVEN THE STATE SHARE REDUCTION; OTHERS HAVE INDICATED

13 THEY WILL REDUCE THEM MINIMALLY, AND ONLY SIX HAVE EVEN SAID

14 THEY WILL REDUCE THEM TO THE STATE LEVEL. SO THERE IS NO

15 EVIDENCE IN THE RECORD, ESPECIALLY GIVEN THE REPORTS THAT WE

16 HAVE SUBMITTED TO YOU, THAT GOES TO THE LEGISLATURE EVERY YEAR

17 THAT THERE WILL BE AN ACCESS PROBLEM.

18

THERE'S JUST -- COMPARED TO THE EVIDENCE OR THE

19 DECLARATIONS THAT THE PLAINTIFFS PUT IN, ANECDOTAL AT BEST,

20 FROM A VERY SELECT FEW COUNTIES, PRIMARILY FROM ALAMEDA COUNTY,

21 THAT THERE WILL BE A STATEWIDE PROBLEM WITH ACCESS.

22

AGAIN, I TAKE ISSUE WITH THE FACT WITH THE NOTION

23 THEY HAVE SUBSTANTIVE GUARANTEES OF ECONOMY -- EXCUSE ME, OF

24 QUALITY CARE AND ACCESS. THE STATUTE SAYS EFFICIENCY, ECONOMY

25 AND QUALITY OF CARE. ALL THOSE THINGS MUST BE BALANCED AS THE

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1 NINTH CIRCUIT FOUND IN SANCHEZ.

2

AND LET'S SEE WHAT ELSE. YOU ARE ABSOLUTELY CORRECT

3 WHEN YOU SAY THE STATE DOESN'T FORCE THE COUNTIES TO DETERMINE

4 WHAT WAGES AND BENEFITS THEY WILL PAY THESE WORKERS. IN FACT,

5 THAT IS THROUGH COLLECTIVE BARGAINING. IN EVERY COUNTY THERE

6 IS COLLECTIVE BARGAINING GOING ON BETWEEN THE UNIONS, SOME OF

7 THE PLAINTIFFS HERE, AND THE PUBLIC AUTHORITY IN THAT COUNTY.

8

SO THE STATE MAKES ITS CONTRIBUTION. THAT HAS BEEN

9 SANCTIONED, THAT METHODOLOGY HAS BEEN SANCTIONED BY THE FEDERAL

10 GOVERNMENT. IT HAS GONE UP VARIOUS YEARS. THIS YEAR, IN THESE

11 EXTREME BUDGETARY TIMES, THE STATE MADE A MODEST REDUCTION TO

12 ITS SHARE, AND IT'S NOT AS THOUGH THE LEGISLATURE DIDN'T HAVE

13 INFORMATION OF HOW THIS PROGRAM WORKS AND WHAT THE IMPACTS ARE

14 BY THE COUNTY IN FRONT OF IT.

15

THANK YOU, YOUR HONOR.

16

THE COURT: WITH RESPECT TO THE COUNTY, IF I WERE TO

17 ENJOIN THE STATE FROM REDUCING ITS CONTRIBUTION OR THE

18 PROCEDURAL, ALLEGED PROCEDURAL VIOLATIONS AS IS REQUESTED, THEN

19 THE COUNTY WOULD HAVE NO DOG IN THAT FIGHT, I TAKE IT?

20

MR. WOODS: I DON'T THINK THE COUNTY HAS A DOG IN

21 THIS FIGHT AS IT IS PROPOSED. AND I THINK THEY WERE IMPROPERLY

22 ADDED AS A PARTY FOR IMPROPER PURPOSES. WE ARE ONE OF 12

23 COUNTIES.

24

THE COURT: RIGHT. BUT SETTING THAT ASIDE IN TERMS

25 OF THE INJUNCTION, WHICH IS ALL THAT'S REALLY BEFORE ME TODAY.

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1

MR. WOODS: I AM NOT SURE HOW THE INJUNCTION READS.

2 THE REQUEST WAS TO ENJOIN --

3

THE COURT: THE STATE FROM REDUCING THE RATES.

4

MR. WOODS: BY APPROVING OR IMPLEMENTING ANY COUNTY

5 IN-HOME SUPPORTIVE SERVICES RATE DECREASES ADOPTED PURSUANT TO

6 SECTION 12306.1(D)6.

7

SO, IF THAT IS THE INJUNCTION THAT IS BEFORE THE

8 COURT, AND I BELIEVE THAT'S THE ONLY ONE THAT IS, AND YOU

9 ISSUED IT, THEN IT WOULD BE UP TO THE STATE TO TAKE STEPS. I

10 DON'T THINK THE STATE APPROVES RATE DECREASES.

11

IF YOU LOOK AT THE STATUTE, THE STATE ONLY -- IT

12 SPEAKS OF INCREASES. AND AS THE STATUS INDICATED IN THE PAPERS

13 IT SUBMITTED, IT REVIEWS THOSE INCREASES TO DETERMINE

14 PROCEDURAL REQUIREMENTS AND TO MAKE SURE THAT THE STATE IS

15 GOING TO SHARE IN IT IF IT COMPLIES WITH THE RULES.

16

BUT IF YOU LOOK AT WELFARE AND INSTITUTIONS CODE

17 SECTION 12306.1(A), THE PLAINTIFFS ARGUE --

18

THE COURT: I AM SORT OF LOSING YOU HERE. I WAS

19 LOOKING FOR SOMETHING SPECIFIC THAT THIS WOULD EFFECT FRESNO.

20

ARE YOU NOW JUST SUPPORTING THE STATE'S ARGUMENTS OR

21 ARE YOU TELLING ME SOMETHING SPECIFIC TO YOUR COUNTY'S ISSUES?

22

MR. WOODS: I THINK AN INJUNCTION AS TO THE STATE

23 DOESN'T DIRECTLY IMPACT FRESNO.

24

THE COURT: OKAY.

25

MS. CARSON: I DON'T THINK IT DIRECTLY IMPACTS ANY

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1 COUNTY BECAUSE, AGAIN, YOUR HONOR, THE WAGES AND BENEFITS ARE

2 SET THROUGH COLLECTIVE BARGAINING. SO IT COULD BE THAT A

3 STATE -- THAT A COUNTY WILL CHOOSE TO REDUCE ITS WAGES AND

4 BENEFITS --

5

THE COURT: NONE OF THIS IS WHAT I AM GETTING AT. I

6 JUST WANT TO MAKE SURE THAT FRESNO DOESN'T HAVE SOME PARTICULAR

7 OBJECTION TO THE INJUNCTION THAT'S REQUESTED THAT THE STATE

8 HASN'T ADDRESSED.

9

MR. WOODS: IF THE INJUNCTION IS LIMITED TO THE

10 DECREASES UNDER 12306.1(D)(6), IT DOES NOT.

11

THE COURT: OKAY.

12

NOW, HAVE YOU SUBMITTED A PROPOSED INJUNCTION?

13

MS. LEYTON: WE HAVE SUBMITTED A PROPOSED ORDER,

14 YOUR HONOR.

15

AND I WOULD MENTION ONE THING. THERE ARE TWO --

16

THE COURT: DID YOU E-FILE THAT OR E-MAIL IT, OR

17 BOTH?

18

MS. LEYTON: IT WAS E-FILED IN CONNECTION WITH OUR

19 ORIGINAL MOTION.

20

I WOULD POINT OUT ONE THING IN RESPECT TO THIS

21 DISCUSSION THAT WE ARE JUST HAVING NOW, YOUR HONOR, IS THAT

22 THERE ARE REALLY TWO RELEVANT ACTS BY THE STATE THAT ARE AT

23 ISSUE HERE. ONE IS THE ENACTMENT OF 12306.1(D)6 AND THE OTHER

24 IS THE STATE'S APPROVAL OF THE COUNTY RATE CHANGE REQUEST. AND

25 IT HAS BECOME CLEAR THROUGH THE STATE'S RESPONSE TO OUR MOTION

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1 THAT THE STATE HAS NO MECHANISM IN PLACE TO REVIEW ACCESS AND

2 QUALITY WHEN IT IS REVIEWING COUNTY RATE CHANGE REQUESTS.

3

AND SO WE BELIEVE THAT IF THIS COURT WERE TO ENJOIN

4 THE STATE'S IMPLEMENTATION OF 12306.1(D)6, THAT WILL INCLUDE

5 ENJOINING THE STATE FROM APPROVING ANY RATE CHANGE REQUESTS

6 THAT HAVE BEEN SUBMITTED TO BE IN EFFECT ON JULY 1ST. THAT

7 INCLUDES FRESNO COUNTY'S RATE CHANGE REQUEST. EVEN IF THERE IS

8 SOME SEPARATE JUSTIFICATION FOR THAT REQUEST THAT RELATES TO

9 THE COUNTY'S OWN SHORT-FALLING FUNDS RATHER THAN TO THE STATE'S

10 ENACTMENT --

11

THE COURT: EVEN IF IT IS NOT -- EVEN IF THE STATE'S

12 REDUCTION DOES NOT GO INTO EFFECT?

13

MS. LEYTON: YES, YOUR HONOR. EVEN IF THE STATE'S

14 REDUCTION DOES NOT GO INTO EFFECT, WE BELIEVE THAT THE --

15 BECAUSE IT HAS BEEN MADE CLEAR BY THE STATE IN THIS CASE THAT

16 THE STATE DOES NOT REVIEW RATE CHANGE REQUESTS FOR THE EFFECT

17 UPON ACCESS AND QUALITY, AND SO THE STATE CANNOT, IN COMPLIANCE

18 WITH THE MEDICAID STATUTE, APPROVE FRESNO'S RATE REDUCTION

19 WITHOUT CONDUCTING THAT ANALYSIS.

20

THE COURT: CAN'T WE JUST WAIT AND SEE WHAT HAPPENS?

21 I MEAN, IF WE WERE TO ENJOIN THE STATE FROM DOING ITS OWN

22 REDUCTION OF CONTRIBUTIONS, THEN WHO KNOWS WHAT THE COUNTIES

23 MIGHT DO AT THAT POINT.

24

MS. CARSON: THAT IS EXACTLY CORRECT, YOUR HONOR.

25

MS. LEYTON: WELL, YOUR HONOR, FRESNO COUNTY, AS FAR

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1 AS WE ARE AWARE IS THE ONLY COUNTY THAT CLAIMS THAT IT STILL

2 MAY BE ABLE TO IMPLEMENT A RATE REDUCTION AS OF JULY 1ST EVEN

3 IF THE STATE'S ENACTMENT IS ENJOINED.

4

THE COURT: BUT WE DON'T KNOW IF IT WILL PERSIST IN

5 TRYING TO DO SO IF THE STATE'S CONTRIBUTION IS NOT REDUCED.

6

MS. LEYTON: UNLESS COUNSEL CAN REPRESENT WHAT

7 FRESNO COUNTY WOULD DO, WE WOULD NOT KNOW FOR SURE. BUT FRESNO

8 COUNTY HAS ARGUED IN THIS CASE THAT EVEN IF THIS COURT ENJOINS

9 THE STATE ENACTMENT, IT CAN STILL IMPLEMENT ITS RATE CHANGE.

10

AND SO THE BEST WAY FOR THE COURT TO ENSURE THAT ITS

11 INJUNCTION WILL ENSURE COMPLIANCE WITH THE FEDERAL MEDICAID

12 STATUTE IS TO MAKE CLEAR THAT PART OF ENJOINING THE

13 IMPLEMENTATION OF THE STATE'S ENACTMENT IS ENJOINING THE STATE

14 FROM APPROVING THE RATE REQUESTS THAT HAVE BEEN SUBMITTED TO GO

15 INTO EFFECT ON JULY 1ST, AND THAT INCLUDES FRESNO COUNTY'S

16 RATE.

17

THE COURT: NUMBER ONE, WE DON'T KNOW IF FRESNO WILL

18 STILL TRY TO DO IT AND NUMBER TWO WE DON'T KNOW IF THE STATE

19 WILL APPROVE IT IF THE STATE IS UNABLE TO REDUCE ITS

20 CONTRIBUTION. THAT WOULD BE SORT OF TWO HYPOTHETICALS OR

21 ADVISORY --

22

MS. LEYTON: MY UNDERSTANDING, YOUR HONOR, IS THAT

23 FRESNO COUNTY HAS STATED THAT IT -- THAT ITS RATE REQUEST DOES

24 NOT DEPEND ON THE STATE'S REDUCTION IN FUNDS.

25

SO WHAT WE WOULD ASK IS THAT THIS COURT ISSUE AN

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1 INJUNCTION THAT PRESERVES THE STATUS QUO AT THIS TIME. AND THE

2 STATUS QUO IS THAT IN THE COUNTIES THAT ARE ABOVE -- THE STATUS

3 QUO IN THE COUNTIES THAT ARE ABOVE 9.50 PER HOUR DESPITE THE

4 SUBMISSION BY FRESNO COUNTY AND OTHER COUNTIES FOR RATE CHANGE

5 REQUESTS THAT WOULD OTHERWISE GO INTO EFFECT ON JULY 1ST.

6

THE COURT: LET ME ASK THE FRESNO COUNSEL IF YOU

7 WANT TO TAKE A POSITION AS TO WHETHER YOU WILL PERSIST IN YOUR

8 REQUEST FOR A RATE REDUCTION EVEN IF THE STATE IS NOT ALLOWED

9 TO REDUCE ITS CONTRIBUTION?

10

MR. WOODS: THE COUNTY'S POSITION, FIRST OF ALL, IS

11 THAT ISN'T BEFORE THE COURT IN THE PRELIMINARY INJUNCTION.

12

MS. CARSON: THAT'S RIGHT.

13

MR. WOODS: NOT AT ALL. NOT IN THE PAPERS. AS YOU

14 KNOW, WE GOT A VERY ABBREVIATED PERIOD OF TIME TO RESPOND.

15 THAT'S NOT BEFORE THE PAPERS.

16

THE COURT: THAT'S BECAUSE I THOUGHT THE EXTENSION

17 THAT WAS REQUESTED BY THE STATE COVERED ALL OF THE DEFENDANTS.

18 AND ONLY WHEN I GOT YOURS DID I REALIZE IT DIDN'T, AND BY THAT

19 TIME YOU HAD ALREADY FILED IT, SO ALTHOUGH I GRANTED IT, IT WAS

20 TOO LATE, BUT THAT WAS UNINTENTIONAL.

21

MR. WOODS: THANK YOU. I APPRECIATE IT.

22

THE COURT: I WASN'T TRYING TO DISCRIMINATE AGAINST

23 YOU.

24

MR. WOODS: I FIGURED THAT'S WHAT HAPPENED.

25

THE COURT: GOOD.

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1

MR. WOODS: THE REASON I BROUGHT THE SECOND GROUNDS

2 OF THE COUNTY'S POSITION, THERE ARE A NUMBER OF COUNTIES THAT

3 IN THE MOU THEY NEGOTIATED SET FORTH VARIOUS CONTINGENCIES

4 WHICH ALLOW FOR REDUCTION OF WAGES. IN FACT, ONE OF THE

5 PLAINTIFFS IN THIS CASE IS THE PARTY TO THAT MOU.

6

THE SEIU NEGOTIATED WITH THE COUNTY OF FRESNO TO

7 AGREE THAT THE COUNTY COULD LOWER ITS RATES UNDER ONE OF TWO

8 CONTINGENCIES -- UNDER EITHER CONTINGENCIES. ONE, IS IF THE

9 STATE LOWERED ITS REIMBURSEMENT AND, TWO, IF THERE WAS A LOSS

10 OF REALIGNMENT FUNDING.

11

AND FRESNO HAS EXPERIENCED A LOSS OF REALIGNMENT

12 FUNDING IN EXCESS OF 6.43 -- 6 MILLION -- 6.435 MILLION. IT

13 WENT THROUGH THE MEET AND CONFER PROCESS. THE FACT FINDER IN

14 THAT CASE, AGAIN, ADVISORY OPINION FOUND THAT THERE HAD BEEN A

15 LOSS OF REALIGNMENT FUNDING JUSTIFYING A RATE REDUCTION.

16

THE COUNTY'S POSITION IS THAT'S NOT BEFORE THIS

17 COURT. I BROUGHT IT TO THE ATTENTION OF THE COURT BECAUSE IF

18 YOU FOUND OUT LATER THAT THE COUNTY WAS CONTEMPLATING THIS, I

19 THOUGHT THE COURT SHOULD HAVE THAT INFORMATION NOW RATHER THAN

20 LATER.

21

AND, YES, THE COUNTY OF FRESNO FEELS THAT IT CAN

22 ACCORDING TO THE TERMS OF THE CONTRACT. AND FOR THE COURT TO

23 INTERJECT ITSELF THERE, UNDER THE GUISE OF A 30(A) ANALYSIS,

24 THAT DOESN'T APPLY TO A RATE REDUCTION DUE TO THE LOSS OF

25 REALIGNMENT FUNDS AT ALL. THAT DOESN'T -- IT'S NOT TIED TO

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1 MEDICAID FUNDING OR ANALYSIS. THAT'S A COMPLETELY SEPARATE

2 ANALYSIS.

3

SO, YES, THE COUNTY OF FRESNO, AND THERE ARE SEVERAL

4 COUNTIES INCIDENTALLY THAT HAVE SIMILAR CLAUSES IN THEIR MOU

5 WHICH ALLOW FOR REDUCTION OF RATES DEPENDING ON CERTAIN

6 CONTINGENCIES. FRESNO ISN'T THE ONLY ONE, BUT FRESNO DOES

7 INTEND, BECAUSE IT MUST FOR THE REASONS SET FORTH IN OUR

8 PAPERS, DUE TO THE CONDITIONS EXISTING THERE, INTEND TO GO

9 FORWARD WITH IT.

10

PLAINTIFFS' PRELIMINARY INJUNCTION INSOFAR AS FRESNO

11 IS CONCERNED, FRESNO, EVEN AFTER THIS REDUCTION, WILL PAY

12 MORE -- PROPOSED REDUCTION -- WILL PAY MORE THAN 32 COUNTIES.

13 EVEN AFTER THE PROPOSED REDUCTION, IT PAYS MORE THAN EVERY

14 SINGLE COUNTY IN THE CENTRAL VALLEY.

15

SO TO SUGGEST THAT THIS MODEST REDUCTION, WHICH IS

16 THE 35 CENTS LESS THAN WHAT THEY WERE MAKING IN SEPTEMBER OF

17 '08, IS DISINGENUOUS. THERE HAS BEEN NO FACTUAL SHOWING.

18 THERE HAS BEEN NO PROOF OF LIKELIHOOD OF SUCCESS INSOFAR AS

19 FRESNO IS CONCERNED.

20

THE SO-CALLED EXPERTS USED BY PLAINTIFFS PROVIDE

21 GENERAL SWEEPING STATEMENTS WITHOUT ANY PARTICULAR COMMENTS

22 RELEVANT TO FRESNO, WHICH HAS A 15 AND A HALF PERCENT

23 UNEMPLOYMENT RATE NOW. AND WHEN IT NEGOTIATED THIS CONTRACT

24 WHICH ALLOWS FOR A REDUCTION DUE TO LOSS TO REALIGNMENT FUNDS,

25 THERE WAS ONLY 8.2 PERCENT UNEMPLOYMENT. IT HAS 450

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1 PREQUALIFIED WORKERS FOR THE REGISTRY. SO WE HAVE AN AMPLE

2 LABOR SUPPLY, A DESPERATE EMPLOYMENT SITUATION, PEOPLE DYING TO

3 FIND WORK, THERE SIMPLY IS NO ADMISSIBLE EVIDENCE TO

4 DEMONSTRATE THAT PLAINTIFFS COULD LIKELY SHOW THAT THERE WOULD

5 BE ANY DEPRIVATION OR DENIAL OF SERVICES.

6

THE COURT: WELL, I AM INCLINED TO ENJOIN THE STATE

7 FOR THE PROCEDURAL REASONS FROM REDUCING ITS CONTRIBUTION. I

8 AM NOT INCLINED TO GO ANY FURTHER THAN THAT AT THIS POINT, BOTH

9 BECAUSE I DON'T THINK FURTHER POINTS WERE ADEQUATELY BRIEFED

10 AND BECAUSE OTHER THINGS HAVE NOT YET COME TO PASS.

11

SO, UNLESS YOU HAVE SOMETHING YOU REALLY WOULD LIKE

12 TO SAY ABOUT THAT.

13

MS. LEYTON: I WOULD LIKE TO SPEAK TO JUST A COUPLE

14 OF POINTS, YOUR HONOR.

15

FIRST, I BELIEVE THAT PLAINTIFFS HAVE --

16

THE COURT: IF THE OTHER SIDE STILL HAS MORE TO SAY,

17 THEN LET'S HAVE IT ALL SO WE CAN BE FINISHED.

18

MS. CARSON: WELL, I THINK THE PLAINTIFFS -- I AGREE

19 WITH YOUR HONOR, THEY HAVE GONE TOO FAR HERE TO SAY THE STATE

20 SHOULD BE ENJOINED FROM ANY EVALUATION OR APPROVAL.

21

WE HAVE A STATE PLAN AMENDMENT THAT OUTLINES EXACTLY

22 WHAT CMS HAS APPROVED IN TERMS OF WHAT THE STATE IS SUPPOSED TO

23 LOOK AT IN THIS APPROVAL PROCESS. SO, TO THEN SUPERIMPOSE UPON

24 THAT THEIR INTERPRETATION OF 30(A) IS NOT PROPER, I DO NOT

25 BELIEVE.

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1

SECONDLY, AS MR. WOODS ELOQUENTLY STATED, THERE ARE

2 OTHER COUNTIES. THIS WAS NOT BRIEFED. SO TO SAY TO THE STATE

3 YOU CAN'T APPROVE A RATE REDUCTION AT ALL, I MEAN WE DON'T KNOW

4 WHAT ALL THE BASES ARE. THEY WERE TOLD THAT THEY WERE GOING TO

5 DO THIS. WE STILL HAVE SOME COUNTIES OUT THERE THAT HAVE TAKEN

6 NO POSITION IF THIS -- IF THIS RATE REDUCTION -- EXCUSE ME,

7 CONTRIBUTION WOULD BE REDUCED.

8

THE COURT: THE IDEA WOULD BE --

9

MS. CARSON: THEY HAVE TAKEN --

10

THE COURT: -- TO REDUCE IT WITHOUT UNDERTAKING THE

11 30(A) INQUIRY THAT'S REQUIRED BY THE NINTH CIRCUIT WOULDN'T BE

12 TO SAY YOU CAN'T REDUCE IT NO MATTER WHAT AS YOU POSIT.

13

MS. CARSON: I UNDERSTAND, BUT I AM SAYING THAT WE

14 DON'T KNOW WHAT THE COUNTIES WILL DO. SO TO SAY TO THE STATE

15 YOU CAN'T APPROVE A RATE REDUCTION SUBMITTED BY THE COUNTY, NOT

16 NECESSARILY KNOWING WHAT THE BASIS FOR THAT IS, OR IF THEY

17 THEMSELVES HAVE DONE THE ANALYSIS.

18

AGAIN, I DON'T KNOW HOW THE STATE IS GOING TO DO

19 THIS ANALYSIS GIVEN THAT THEY HAVEN'T EVEN -- ALL THE COUNTIES

20 HAVEN'T EVEN WEIGHED IN ON THIS YET. SO I WOULD JUST POINT

21 THAT OUT AGAIN TO THE COURT.

22

MR. WOODS: MAY I FINISH --

23

THE COURT: WE HAVE TO STOP AT SOME POINT.

24

MR. WOODS: I UNDERSTAND. BUT I HAVE NO OBJECTION

25 TO WHAT WAS REQUESTED IN THE INJUNCTION, BUT TO EXPAND THAT TO

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1 SAY THE STATE CAN'T APPROVE ANY RATE REDUCTION, TO BEGIN WITH

2 THE LAW DOESN'T --

3

THE COURT: AS I SAID, I WOULD NOT DO THAT.

4

MR. WOODS: I AM SORRY, I MISUNDERSTOOD THAT.

5

THE COURT: I WOULD SAY MAY NOT APPROVE A RATE

6 REDUCTION WITHOUT UNDERTAKING THE EFFICIENCY, ET CETERA,

7 ANALYSIS REQUIRED BY THE NINTH CIRCUIT. BUT MY INCLINATION IS

8 NOT TO DO THAT EITHER, AND I WAS JUST TRYING TO GET PLAINTIFFS'

9 COUNSEL'S FINAL WORD ON THAT POINT, BUT IF YOU FEEL YOU HAVE

10 SOMETHING ELSE YOU NEED TO SAY.

11

MR. WOODS: THE ONLY THING, IF IT WERE EVER TIED TO

12 THE 30(A) ANALYSIS, THAT WOULD PREVENT HOME RULE COUNTIES,

13 CHARTER COUNTIES FROM NEGOTIATING MOU'S WITH UNIONS, WHICH THE

14 LEGISLATURE --

15

THE COURT: NO, IT WOULDN'T. IT WOULD ENJOIN THE

16 STATE FROM NOT -- FROM APPROVING RATE REDUCTIONS WITHOUT

17 UNDERTAKING THE PROPER ANALYSIS.

18

MS. CARSON: SO, YOUR HONOR, LET ME JUST BE CLEAR

19 HERE. SO THEN FOR EVERY YEAR THAT THE STATE INCREASED ITS

20 SHARE, IT WAS REQUIRED TO DO SUCH AN ANALYSIS?

21

THE COURT: I DON'T KNOW.

22

MS. CARSON: YOU DON'T KNOW?

23

THE COURT: I DON'T KNOW. IS THAT BEFORE ME?

24

MS. CARSON: YOU'RE INTERPRETING CAL PHARMACIST AND

25 ORTHOPAEDIC TO SAY THAT BEFORE WE MAKE A CHANGE, WE HAVE TO DO

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1 AN ANALYSIS. SO I AM JUST TRYING TO GET CLARIFICATION FROM YOU

2 THAT EVERY YEAR THAT WE RAISED IT OVER THE LAST EIGHT YEARS,

3 WERE WE REQUIRED TO DO AN ANALYSIS BEFORE WE DID THAT?

4

THE COURT: I CAN'T ISSUE AN ADVISORY OPINION ON

5 SOMETHING THAT IS NOT --

6

MS. CARSON: OKAY. WELL, I AM TRYING TO UNDERSTAND.

7

THE COURT: IF YOU -- IF THERE WAS AN OBJECTION TO

8 IT, I SUPPOSE I WOULD HAVE TO LOOK AT THAT, BUT THAT ISN'T --

9

MS. CARSON: OH, SO IT DEPENDS ON WHETHER SOMEONE

10 OBJECTS.

11

THE COURT: THE CASES COME --

12

MS. CARSON: SOMEONE FILES A LAWSUIT.

13

THE COURT: -- BEFORE ME. UNLESS SOMEONE FILES A

14 LAWSUIT, I CAN'T REACH OUT AND --

15

MS. CARSON: I UNDERSTAND.

16

THE COURT: -- FIX THINGS THAT I DON'T THINK ARE

17 RIGHT.

18

MS. CARSON: I UNDERSTAND.

19

THE COURT: I CAN ONLY RESPOND TO LAWSUITS THAT ARE

20 BROUGHT BEFORE ME.

21

MS. CARSON: I UNDERSTAND.

22

MR. WOODS: ONE LAST CONCERN SO PLAINTIFFS CAN

23 ADDRESS ALL OF THEM. IF THE STATE HAS TO APPROVE A REDUCTION,

24 TO BEGIN WITH, THAT ISN'T PROVIDED FOR UNDER STATE LAW. THEY

25 HAVE TO APPROVE INCREASES IN RATES, NOT REDUCTIONS. SO THAT

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1 WOULD IMPOSE NEW LAW.

2

SECONDLY, IF THE COURT ISSUED A BROAD-SWEEPING

3 FINDING LIKE THAT, THAT WOULD EFFECTIVELY INTERFERE WITH ANY

4 LABOR NEGOTIATIONS BECAUSE NO MATTER WHAT THE COUNTY AND THE

5 UNION AGREED TO, IT WOULD NOT BE BINDING UNLESS THE STATE

6 LOOKED AT IT AND THEN DID SOME FURTHER ANALYSIS, AND THE STATE

7 WOULD THEN HAVE TO DO AN ANALYSIS FOR EVERY COUNTY BECAUSE THE

8 SITUATIONS IN EVERY COUNTY WILL BE DIFFERENT DEPENDING ON, YOU

9 KNOW, COST OF LIVING, UNEMPLOYMENT RATE, COST OF HEALTH CARE,

10 ET CETERA, ET CETERA.

11

SO, I REALLY RESPECTFULLY SUGGEST THAT ISN'T WHERE

12 THE COURT SHOULD BE HEADED BECAUSE IT WILL BE IMPOSSIBLE TO

13 APPLY IN A PRACTICAL SENSE.

14

MS. LEYTON: YOUR HONOR, WE DO NOT BELIEVE IT WOULD

15 BE ENTERING AN ADVISORY OPINION TO DECIDE THAT THE RATE CHANGES

16 CAN'T TAKE EFFECT WITHOUT A SECTION 30(A) ANALYSIS.

17

THE EVIDENCE IN THE RECORD SHOWS THAT FRESNO COUNTY

18 HAS SUBMITTED A RATE CHANGE REQUEST BASED ON THE STATE'S

19 REDUCTION IN FUNDING. FRESNO COUNTY THEN SUBMITTED EVIDENCE

20 THAT IT SUBMITTED A SEPARATE JUSTIFICATION FOR THAT RATE

21 CHANGE, WHICH IS THE SHORTFALL AND THE ALIGNMENT FUND.

22

AND I DON'T UNDERSTAND FRESNO'S COUNSEL TO BE

23 REPRESENTING THAT IT WILL WITHDRAW THAT PART OF THE RATE CHANGE

24 REQUEST OR THE STATE TO BE REPRESENTING THAT THE STATE WOULD

25 CONDUCT A SECTION 30(A) ANALYSIS BEFORE PERMITTING FRESNO'S

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1 RATE CHANGE TO GO INTO EFFECT.

2

IF FRESNO REDUCES RATES ON JULY 1ST, IT WOULD MEAN

3 THAT THE RATES ARE BEING DECREASED WITHOUT ANY SECTION 30(A)

4 ANALYSIS. SO REGARDLESS OF THE REASON FOR THE REDUCTION, AT

5 SOME POINT THAT ANALYSIS NEEDS TO TAKE PLACE AND THE STATE

6 CAN'T HAVE A SYSTEM THAT ABDICATES AUTHORITY.

7

IF YOUR HONOR IS NOT INCLINED TO RULE ON THIS ISSUE,

8 THEN I WOULD ASK THAT THERE BE SOME PROCEDURE BY WHICH IF

9 FRESNO DOES GO FORWARD WITH THE JULY 1ST RATE REDUCTION AND THE

10 STATE DOES NOT PREVENT IT FROM DOING SO, THAT WE WILL NEED SOME

11 KIND OF 24-HOUR BRIEFING SCHEDULE TO BE ABLE TO COME IN FOR A

12 TEMPORARY RESTRAINING ORDER UNLESS COUNSEL IS REPRESENTING THAT

13 THEY DO NOT INTEND TO MOVE FORWARD WITH THAT RATE CHANGE

14 REQUEST.

15

I WOULD ALSO MENTION THAT WE DO HAVE SEPARATE CLAIMS

16 AGAINST FRESNO COUNTY THAT ARE BASED ON THE AMERICANS WITH

17 DISABILITIES ACT. WE SUBMITTED NUMEROUS DECLARATIONS BY

18 CONSUMERS IN FRESNO, AND OUR EXPERT DECLARATION BY DR. HOWES

19 DOES ADDRESS THE NUMBERS SPECIFICALLY IN FRESNO COUNTY. BUT WE

20 DO NOT BELIEVE THAT THIS COURT WOULD HAVE TO REACH THAT ADA

21 CLAIM IF THIS COURT WERE TO RULE THAT THE RATE CHANGE REQUESTS

22 THAT HAVE ASKED FOR A RATE DECREASE TO GO INTO EFFECT ON

23 JULY 1ST CANNOT TAKE PLACE WITHOUT SOME KIND OF SECTION 30(A)

24 ANALYSIS.

25

THE COURT: ALL RIGHT. WELL, I AM GOING TO ENJOIN

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1 THE RATE REDUCTION TO THE 9.50 PLUS 60 CENTS THAT HAS BEEN

2 ALREADY APPROVED BY THE STATE WITHOUT THE 30(A) ANALYSIS, WHICH

3 I FIND IS REQUIRED AND NOT DONE. AND THAT'S THE ONLY THING I

4 AM GOING TO ENJOIN AT THIS POINT.

5

I WILL ISSUE A WRITTEN ORDER. IF SOMETHING ELSE

6 HAPPENS THAT NEEDS TO BE ENJOINED, THEN YOU CAN FILE ANOTHER

7 REQUEST FOR AN INJUNCTION AGAINST SOMETHING ELSE THAT HAPPENS.

8

AND I AM NOT INCLINED TO BASE THE INJUNCTION ON

9 ANYTHING OTHER THAN THE PROCEDURAL VIOLATION, BUT AT THE VERY

10 LEAST I WILL BE ENJOINING THAT OR AM ENJOINING THAT, AND I WILL

11 ISSUE AN ORDER.

12

MS. CARSON: THANK YOU, YOUR HONOR.

13

THE COURT: YOU ALSO HAVE A MOTION TO DISMISS THAT'S

14 SCHEDULED FOR AUGUST 6TH, WHICH WE WILL HEAR.

15

MR. WOODS: THAT IS MY MOTION, YOUR HONOR.

16

THE COURT: THAT'S ONLY YOURS?

17

MR. WOODS: MY MOTION AND ALSO THERE'S A MOTION TO

18 SEVER SCHEDULED FOR THE SAME DAY.

19

THE COURT: AND YOU HAVE A CMC ON SEPTEMBER 1ST?

20 WHAT ARE YOU -- ARE YOU GOING TO ANSWER OR FILE A MOTION TO

21 DISMISS?

22

MS. CARSON: I DON'T KNOW, YOUR HONOR.

23

THE COURT: WHEN IS IT DUE?

24

WHEN IS YOUR ANSWER OR MOTION DUE?

25

MS. CARSON: I BELIEVE IT'S PROBABLY DUE LIKE

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1 MOMENTARILY. I DON'T KNOW YET.

2

THE COURT: I ASK ONLY BECAUSE I WOULD LIKE TO HAVE

3 IT ON THE SAME DATE AND IT'S PROBABLY TOO LATE FOR YOU TO

4 NOTICE YOURS FOR AUGUST THE 6TH, SO I WOULD LIKE ALL OF YOU TO

5 CONSULT WITH EACH OTHER AND AGREE UPON A DATE ON WHICH I WOULD

6 HEAR ALL MOTIONS TO DISMISS, IF YOU ARE THINKING OF FILING ONE.

7

MS. CARSON: ACTUALLY, YOUR HONOR, I AM GOING TO

8 REQUEST A STAY OF THIS INJUNCTION. I NEED TIME, AND I MAY BE

9 GOING TO THE NINTH CIRCUIT, BUT --

10

THE COURT: YOU CAN DO THAT BUT WE WILL GO FORWARD

11 WITH THE CASE IN ANY EVENT. AN APPEAL OF THE INJUNCTION

12 DOESN'T STAY --

13

MS. CARSON: I UNDERSTAND --

14

THE COURT: -- THE WHOLE CASE.

15

(SIMULTANEOUS COLLOQUY.)

16

THE COURT: YOU NEED TO WAIT UNTIL I FINISH TALKING

17 BECAUSE IT'S HARD FOR THE REPORTER TO GET BOTH OF US AT ONCE.

18

MS. CARSON: SURE.

19

THE COURT: IRRESPECTIVE OF WHETHER YOU SEEK A STAY

20 OF THE INJUNCTION AND/OR GO TO THE NINTH CIRCUIT, WE WILL STILL

21 PROCEED WITH THE REMAINDER OF THE CASE AND YOU WILL STILL NEED

22 TO FILE EITHER AN ANSWER OR A MOTION TO DISMISS IN A TIMELY

23 FASHION. AND I WOULD LIKE TO COORDINATE ANY MOTION TO DISMISS

24 THAT YOU MIGHT FILE WITH THE MOTION TO DISMISS THAT'S ALREADY

25 BEEN FILED SO I CAN HEAR THEM BOTH ON THE SAME DATE.

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1

IF YOU CAN MAKE YOUR DECISION AS TO WHAT YOU ARE

2 GOING TO DO AND THEN CONSULT WITH YOUR CO-COUNSEL AS WELL AS

3 OPPOSING COUNSEL TO SEE IF YOU CAN'T AGREE UPON A THURSDAY AT

4 2:00 O'CLOCK THAT I AM AVAILABLE ON SO THAT I CAN HEAR ANY AND

5 ALL MOTIONS TO DISMISS ON THE SAME DAY.

6

AND IF YOU WANT TO CHANGE THE CMC DATE BY

7 STIPULATION, YOU CAN DO THAT AS WELL, BUT AT THE MOMENT IT

8 SEEMS TO BE ON FOR SEPTEMBER 1ST.

9

MS. CARSON: THANK YOU, YOUR HONOR.

10

MS. LEYTON: THANK YOU, YOUR HONOR.

11

THE COURT: THANK YOU.

12

(PROCEEDINGS CONCLUDED AT 4:00 P.M.)

13

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DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC (510) 451-2930

Case4:09-cv-02306-CW Document143 Filed07/02/09 Page45 of 45

45

CERTIFICATE OF REPORTER I, DIANE E. SKILLMAN, OFFICIAL REPORTER FOR THE UNITED STATES COURT, NORTHERN DISTRICT OF CALIFORNIA, HEREBY CERTIFY THAT THE FOREGOING PROCEEDINGS IN C-09-2306 CW, MARTINEZ, ET AL. V. SCHWARZENEGGER, PAGES NUMBERED 1 THROUGH 45, WERE REPORTED BY ME, A CERTIFIED SHORTHAND REPORTER, AND WERE THEREAFTER TRANSCRIBED UNDER MY DIRECTION INTO TYPEWRITING; THAT THE FOREGOING IS A FULL, COMPLETE AND TRUE RECORD OF SAID PROCEEDINGS AS BOUND BY ME AT THE TIME OF FILING.
THE INTEGRITY OF THE REPORTER'S CERTIFICATION OF SAID TRANSCRIPT MAY BE VOID UPON REMOVAL FROM THE COURT FILE.
_____/S/ DIANE E. SKILLMAN_________ DIANE E. SKILLMAN, CSR 4909, RPR, FCRR

DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC (510) 451-2930

 
 Case4:09-cv-02306-CW Document144 Filed07/07/09 Page1 of 21

1 STEPHEN P. BERZON (SBN 46540) SCOTT A. KRONLAND (SBN 171693)
2 STACEY M. LEYTON (SBN 203827) PEDER J. THOREEN (SBN 217081)
3 ANNE N. ARKUSH (SBN 254985) Altshuler Berzon LLP
4 177 Post Street, Suite 300 San Francisco, California 94108
5 Telephone: (415) 421-7151 Facsimile: (415) 362-8064
6 sberzon@altshulerberzon.com skronland@altshulerberzon.com
7 sleyton@altshulerberzon.com pthoreen@altshulerberzon.com
8 aarkush@altshulerberzon.com

9 Attorneys for Plaintiffs

10

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

11

SAN FRANCISCO/OAKLAND DIVISION

12 MIKESHA MARTINEZ, by and through her

) Case No. C 09-02306 CW

husband and next friend Carlos Martinez, LYDIA )

13 DOMINGUEZ, ALEX BROWN, by and through )

his mother and next friend Lisa Brown, DONNA ) CLASS ACTION

14 BROWN, CHLOE LIPTON, by and through her )

conservator and next friend Julie Weissman-

) PLAINTIFFS’ MOTION FOR CIVIL

15 Steinbaugh, HERBERT M. MEYER, LESLIE ) CONTEMPT SANCTIONS OR, IN THE

GORDON, CHARLENE AYERS, WILLIE

) ALTERNATIVE, FOR A MORE

16 BEATRICE SHEPPARD, and ANDY

) SPECIFIC PRELIMINARY

MARTINEZ, on behalf of themselves and a class ) INJUNCTION; MEMORANDUM OF

17 of those similarly situated; SERVICE

) POINTS AND AUTHORITIES IN

EMPLOYEES INTERNATIONAL UNION

) SUPPORT

18 UNITED HEALTHCARE WORKERS WEST; )

SERVICE EMPLOYEES INTERNATIONAL )

19 UNION UNITED LONG-TERM CARE

) Date: TBD

WORKERS; SERVICE EMPLOYEES

) Time: TBD

20 INTERNATIONAL UNION LOCAL 521; and ) Place: Courtroom 2, 4th floor,

SERVICE EMPLOYEES INTERNATIONAL )

Oakland Federal Courthouse

21 UNION CALIFORNIA STATE COUNCIL,

)

1301 Clay Street

)

Oakland, CA 94612

22

Plaintiffs,

)

)

23

v.

)

)

24 ARNOLD SCHWARZENEGGER, Governor of )

the State of California; JOHN A. WAGNER, )

25 Director of the California Department of Social )

Services; DAVID MAXWELL-JOLLY, Director )

26 of the California Department of Health Care

)

Services; JOHN CHIANG, California State

)

27 Controller; FRESNO COUNTY; and FRESNO )

COUNTY IN-HOME SUPPORTIVE SERVICES )

28 PUBLIC AUTHORITY,

)

)

Defendants.

)

)

Case4:09-cv-02306-CW Document144 Filed07/07/09 Page2 of 21

1

NOTICE OF MOTION AND MOTION FOR CIVIL CONTEMPT SANCTIONS OR,

IN THE ALTERNATIVE, A MORE SPECIFIC PRELIMINARY INJUNCTION

2

Please take notice that at a date and time to be set by the Court, in Courtroom 2, Oakland Federal

3 Courthouse, 1301 Clay Street, Oakland CA 94612, before the Honorable Claudia Wilken, Plaintiffs will

4 move the Court for civil contempt sanctions against Defendants Schwarzenegger, Wagner, and

5 Maxwell-Jolly (“State Defendants”) for presently violating this Court’s June 26, 2009 Preliminary

6 Injunction, or, in the alternative, for a more specific preliminary injunction. State Defendants are

7 refusing to permit counties that want to maintain their pre-July 1, 2009 wage rates to do so, and are

8 telling such counties that the lower wage rate, based on the implementation of the statute this Court

9 enjoined, will remain in effect for at least 60 days, over the counties’ objections. In doing so, State

10 Defendants are refusing to give force and effect to this Court’s Preliminary Injunction.

11

Almost every single county that submitted a rate decrease request based upon Section

12 12306.1(d)(6) wants to continue the pre-July 1 wage rate in effect after July 1, 2009. However, despite

13 the Preliminary Injunction, State Defendants are not permitting them to do so. Because paychecks for

14 IHSS providers for the July 1st through July 15th pay period will be issued shortly after July 15, 2009,

15 and because of the need to reprogram the database in order to ensure that the paychecks are issued for

16 the correct amounts owed, a motion to shorten the time in which to hear this motion is being filed under

17 separate cover. Plaintiffs ask that this Court rule promptly to ensure that IHSS providers are paid the

18 correct amount in that paycheck.

19

Plaintiffs’ motion for civil contempt sanctions is made pursuant to the inherent authority of the

20 Court on the ground that State Defendants are presently violating this Court’s June 26, 2009 preliminary

21 injunction. See Stone v. City and County of San Francisco, 968 F.2d 850, 856 & n.9 (9th Cir. 1992).

22

This motion is based on this Notice of Motion and Motion, the accompanying Memorandum of

23 Points and Authorities, the Declarations in connection with this Motion, the [Proposed] [Alternative]

24 Orders Granting Plaintiffs’ Motion, the complete files and records of this action, and such other and

25 further matters as the Court may properly consider.

26 //

27 //

28 //

Pls’ Mot. for Civil Contempt Sanctions or More Specific Prelim. Inj.; Memorandum in Support, Case No. C09-02306 CW
1

Case4:09-cv-02306-CW Document144 Filed07/07/09 Page3 of 21

1 Dated: July 7, 2009 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Respectfully submitted
STEPHEN P. BERZON SCOTT KRONLAND STACEY M. LEYTON PEDER J. THOREEN ANNE N. ARKUSH Altshuler Berzon LLP
By: __/s/ Stacey M. Leyton___________ Stacey M. Leyton Attorneys for Plaintiffs

Pls’ Mot. for Civil Contempt Sanctions or More Specific Prelim. Inj.; Memorandum in Support, Case No. C09-02306 CW
2

Case4:09-cv-02306-CW Document144 Filed07/07/09 Page4 of 21

1

TABLE OF CONTENTS

2 BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

3

A. Implementation Of Section 12306.1(d)(6) Prior To This Court’s Injunction . . . . . . . . . . 2

4

B. The June 26, 2009 Preliminary Injunction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

5

C. State Defendants’ Conduct After The Issuance Of The Injunction . . . . . . . . . . . . . . . . . . 4

6 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

7

A. State Defendants Are In Contempt Of This Court’s Preliminary Injunction . . . . . . . . . . . 9

8

1. Contempt standard . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

9

2. State Defendants are clearly violating this Court’s injunction . . . . . . . . . . . . . . . . 9

10

3. Remedy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

11

B. In The Alternative, This Court Should Issue A More Specific Preliminary Injunction . . 15

12 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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i

Case4:09-cv-02306-CW Document144 Filed07/07/09 Page5 of 21

1 TABLE OF AUTHORITIES
2 FEDERAL CASES
3

4

Gompers v. Bucks Stove & Range Co., 221 U.S. 418 (1911) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

5 In re Crystal Palace Gambling Hall, Inc.,

6

817 F.2d 1361 (9th Cir. 1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

7

In re Dual-Deck Video Cassette Recorder Antitrust Litigation, 10 F.3d 693 (9th Cir. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 12, 13

8 In re Dyer,

9

322 F.3d 1178 (9th Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

10

S.E.C. v. Elmas Trading Corp., 824 F.2d 732 (9th Cir. 1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

11 Stone v. City and County of San Francisco,

12

968 F.2d 850 (9th Cir. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

13

Transwestern Pipeline Co. v. 17.19 Acres of Property Located in Maricopa County, 550 F.3d 770 (9th Cir. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

14 United States v. Ayres,

15

166 F.3d 991 (9th Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

16

United States v. Young, 107 F.3d 903 (D.C. Cir. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

17 FEDERAL STATUTES

18 42 U.S.C. §1396a(a)(30)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 9, 14

19 STATE STATUTES

20 Section 12306.1(d)(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

21

22

23

24

25

26

27

28

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1

MEMORANDUM OF POINTS AND AUTHORITIES

2

Plaintiffs hereby move this Court for civil contempt sanctions against State Defendants for their

3 present violation of the Court’s June 26, 2009 Preliminary Injunction, or, in the alternative, for a more

4 specific preliminary injunction.

5

In blatant defiance of this Court’s outstanding Order, State Defendants are refusing to permit

6 counties to maintain their pre-July 1, 2009 wage rates – even though the rate decrease requests every

7 county had previously submitted were based solely on Section 12306.1(d)(6), the implementation of

8 which this Court preliminarily enjoined, and even though almost every single one of those counties

9 wants to maintain the pre-July 1st rates.1 Instead, State Defendants are requiring counties to both

10 formally submit new Rate Change Requests to the California Department of Social Services (“CDSS”)

11 and then to wait at least 60 days before returning the wage rate to the pre-July 1, 2009 level.

12

Unless this Court acts immediately, the status quo that this Court’s Preliminary Injunction sought

13 to maintain will not be reached for at least two months. In the meantime, consumers and low-wage

14 providers will suffer the irreparable injury that the Preliminary Injunction was designed to prevent, and

15 counties that determine they are obligated to pay the higher wage rate may lose hundreds of thousands of

16 dollars in state and federal matching funds. There is no justification for this 60-day delay, which the

17 State appears to be imposing based on its desire not to comply with the injunction while appealing it to

18 the Ninth Circuit.

19

State Defendants’ actions make clear that civil contempt sanctions are necessary to ensure

20 compliance with this Court’s order. Plaintiffs also seek attorney fees to compensate them for the cost of

21 bringing the instant motion.

22

23

24

1 Alameda, Contra Costa, Mendocino, Napa, Placer, San Mateo, Santa Barbara, and Yolo

25 Counties have all informed CDSS that they want to maintain the pre-July 1 rates. McDevitt Supp. Decl. ¶¶9-11; Roth Supp. Decl. ¶2; Nam Supp. Decl. ¶3; Mancini Decl. ¶6; Malberg Supp. Decl. ¶¶3-4. In

26 addition, Calaveras, San Benito, and Solano Counties have informed SEIU that they want to maintain the pre-July 1 rates. Malberg Supp. Decl. ¶5; McDevitt Supp. Decl. ¶¶8, 12. As of the date of this

27 filing, Plaintiffs have been unable to determine whether Riverside County intends to maintain the pre-

July 1 wage rate. Only Fresno County has definitively stated its intent to proceed with a rate cut despite

28 this Court’s Preliminary Injunction. Malberg Supp. Decl. ¶6.

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Case4:09-cv-02306-CW Document144 Filed07/07/09 Page7 of 21

1

The requirements imposed by the preliminary injunction are abundantly clear. But, if the Court

2 concludes otherwise, Plaintiffs seek in the alternative a more specific preliminary injunction that (1)

3 invalidates all rate reduction requests previously submitted and approved to be effective July 1, 2009, or

4 (2) at the very least, directs State Defendants immediately to reinstate the pre-July 1, 2009 wage rate for

5 any county that has informed or informs CDSS that it wishes to do so during the pendency of the

6 preliminary injunction.

7

BACKGROUND

8 A. Implementation Of Section 12306.1(d)(6) Prior To This Court’s Injunction

9

In April and May of 2009, CDSS, which administers the IHSS program, issued two notices to

10 counties regarding Section 12306.1(d)(6), which purported to “inform counties how this change will be

11 implemented.” Leyton Supp. Decl., Ex. A. The notices stated that “[c]ounties currently providing

12 wages and individual health benefits above $10.10 must submit a PA Rate Change Request to reflect the

13 change in the maximum amount in which the state will participate.” Id., Ex. B (emphasis added). They

14 originally instructed counties to submit rate change requests by May 1, 2009 in order for the new rate to

15 take effect on July 1, 2009, but later extended the deadline for rate change requests to June 1, 2009. Id.,

16 Exs. A-B.

17

CDSS required all counties above $10.10 to submit such requests because the State’s position,

18 set forth in communications with the federal Department of Health and Human Services, was that the

19 enactment of Section 12306.1(d)(6) rescinded CDSS’s approval of any wage rate over $10.10, effective

20 July 1, 2009. Id., Ex. C (stating that “the PA rates, which are based upon the amount of state funding

21 appropriated, are not approved as of July 1, 2009, and the counties will need to submit new rate

22 packages for approval”). In other words, State Defendants explicitly asserted and communicated to the

23 counties that the enactment of Section 12306.1(d)(6) rescinded, as of July 1, CDSS’s previous approval

24 of any rates higher than $10.10, and that affected counties were required to submit new Rate Change

25 Requests in time for CDSS to review and approve them.

26

27

28

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Case4:09-cv-02306-CW Document144 Filed07/07/09 Page8 of 21

1

Upon receipt of these notices from CDSS, at least thirteen counties submitted Rate Change

2 Requests seeking to reduce IHSS provider wages and benefits below the rate currently paid.2 There is no

3 question that these requests were submitted in direct response to Section 12306.1(d)(6) and to the State’s

4 instructions as to how Section 12306.1(d)(6) would be implemented. Indeed, at least some of those

5 requests explicitly so stated. For example, the cover letter submitted by Alameda County with its Rate

6 Change Request states: “Alameda County intends to request approval of a revised In-Home Supportive

7 Services (IHSS) Public Authority Rate due to the change in the State Participation Rate effective July 1,

8 2009.” McDevitt Supp. Decl., Ex. A (emphasis added). Fresno County’s Rate Change Request states,

9 on a portion of the form designated for “Comments”: “This change in the PA rate is solely due to the

10 State law change . . . .” Leyton Supp. Decl., Ex. E (emphasis added);3 see also id., Ex. F (letter from

11 Solano County to CDSS submitting rate reduction request information “as requested in [CDSS’s] letter”

12 notifying the counties of Section 12306.1(d)(6)). Notices issued by the counties to IHSS providers about

13 the impending wage rate reduction also attributed the change solely to the State’s decreased participation

14 pursuant to the implementation of Section 12306.1(d)(6). McDevitt Supp. Decl., ¶4 & Ex. B.

15

State Defendants acted quickly to approve rate change requests submitted in implementation of

16 Section 12306.1(d)(6). Indeed, CDSS approved rate change requests in as little as one week. For

17 example, when Alameda County submitted a rate change on June 18, 2009 to be effective July 1, 2009,

18 CDSS officially approved the change on June 25. McDevitt Supp. Decl., ¶7 & Ex. E; see also id.

19 (CDSS informally approved the rate change the same day it was submitted). Similarly, Solano County

20 submitted its rate change packet on June 15, 2009 and was notified of its approval on June 23, 2009. Id.,

21 ¶6 & Ex. D.

22

23

2 When Plaintiffs filed their preliminary injunction motion, they were only aware of twelve counties that had submitted rate reduction requests pursuant to Section 12306.1(d)(6). Since that time,

24

Plaintiffs have learned that Santa Barbara also submitted such a request. Nam Supp. Decl. ¶2. In addition, Sonoma County submitted a request to reduce its rates because of Section 12306.1(d)(6)

25 effective August 1, 2009; Sonoma County has informed Plaintiffs that, since the issuance of this Court’s Preliminary Injunction, it no longer wants to reduce its rates effective August 1. Leyton Supp. Decl., Ex.

26 S.

27

3 Apparently, Fresno County subsequently submitted a second rate change request based on its

assertion of a realignment funds shortfall. There is no record of any other county that has asserted any

28 justification for a rate decrease other than the State’s enactment of Section 12306.1(d)(6).

Pls’ Mot. for Civil Contempt Sanctions or More Specific Prelim. Inj.; Memorandum in Support, Case No. C09-02306 CW
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Case4:09-cv-02306-CW Document144 Filed07/07/09 Page9 of 21

1 B. The June 26, 2009 Preliminary Injunction

2

After briefing and a hearing on June 25, 2009, this Court issued an oral Preliminary Injunction

3 followed by a written Preliminary Injunction and Order Granting Plaintiffs’ Motion for a Preliminary

4 Injunction on June 26, 2009. This Court found that Plaintiffs had demonstrated a strong likelihood of

5 success on their claim that State Defendants failed to consider the factors set forth in 42 U.S.C.

6 §1396a(a)(30)(A) (“Section 30(A)”) before enacting Section 12306.1(d)(6), in violation of the federal

7 Medicaid Act. Order Granting Prelim. Inj. 10:14-17. This Court further found that, absent injunctive

8 relief, both IHSS consumers and providers would suffer irreparable harm as a result of the wage

9 reductions caused by the implementation of Section 12306.1(d)(6). Id. 10:25-11:21.

10

Accordingly, the Court’s Preliminary Injunction enjoins and restrains State Defendants “from

11 implementing California Welfare and Institutions Code § 12306.1(d)(6) without first conducting the 12 analysis required by 42 U.S.C. § 1396a(a)(30)(A), as described in Orthopaedic Hospital v. Belshe, 103 13 F.3d 1941, 1493 (9th Cir. 1997).” Prelim. Inj. 1:24-28.

14 C. State Defendants’ Conduct After The Issuance Of The Injunction

15

State Defendants took no timely action to notify the counties of the Court’s injunction. Despite

16 representing to this Court in writing that they would issue an All-County Notice “immediately” after the

17 issuance of the injunction (Dkt. #132, at 2), State Defendants waited five days to do so, issuing a

18 deficient and bare-bones notice (as further explained below) on the afternoon of June 30, 2009. Leyton

19 Supp. Decl., Ex. G. Concerned about this lack of notice, on June 29, 2009 and June 30, 2009,

20 respectively, Plaintiffs’ counsel had sent a copy of this Court’s Preliminary Injunction and a cover letter

21 to counties that had submitted requests to reduce their rate based on Section 12306.1(d)(6), and to

22 counties that planned to maintain their pre-July 1st rate despite Section 12306.1(d)(6). Id. ¶9.

23

Moreover, on June 26, 2009, shortly after the issuance of the Preliminary Injunction, Plaintiffs’

24 counsel wrote to counsel for State Defendants asking that State Defendants notify the counties that,

25 under the Preliminary Injunction, any rate reductions submitted and approved pursuant to Section

26 12306.1(d)(6) were disapproved, and that rates previously in effect remained in effect for those counties.

27 Id., Ex. H. Later the same day, counsel for State Defendants responded that they would not rescind the

28 prior all-county communications or inform counties that rate decreases submitted and approved as part

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Case4:09-cv-02306-CW Document144 Filed07/07/09 Page10 of 21

1 of the implementation of Section 12306.1(d)(6) were “‘disapproved.’” Id., Ex. I. State Defendants

2 explained in part: “CDSS does not have the authority to tell counties what level of wages and benefits

3 they should pay to IHSS providers; that is determined through collective bargaining between the union

4 and the county.” Id.

5

On June 29, 2009, Plaintiffs filed an ex parte motion asking this Court to further provide that all

6 PA Rate Change Requests that had been submitted pursuant to Section 12306.1(d)(6) were invalid, and

7 to enjoin State Defendants from giving effect to approvals of such PA Rate Change Requests. Later the

8 same day, this Court denied Plaintiffs’ motion, but invited Plaintiffs to file a regularly noticed motion if

9 they “are dissatisfied with the manner in which Defendants are implementing the injunction.” Order

10 Denying Pls. Ex Parte Mot. 1:26-2:1.

11

On the afternoon of June 30, 2009, State Defendants finally notified counties of the preliminary

12 injunction. Leyton Supp. Decl., Ex. G. The All-County Notice stated only:

13

On June 26, 2009, the federal district court for the Northern District of California issued an injunction prohibiting the department and other state agency defendants from implementing the

14

above reduction in maximum state participation [Section 12306.1(d)(6)]. The maximum state participation in wages and benefits will remain at $12.10 per hour as long as the injunction

15

remains in effect.

16 Id. Notably, the Notice provided no information whatever to the counties regarding which wage and

17 benefit rate would apply on July 1, 2009, or how counties that had submitted rate change requests based

18 solely on Section 12306.1(d)(6) could ensure that the pre-July 1, 2009 wage rates would remain in effect

19 now that Section 12306.1(d)(6) had been enjoined.

20

State Defendants did not provide counties with any information about the implementation of the

21 injunction until July 3, when it issued an All-County Notice informing counties that:

22

The Rate Change Requests that were submitted by Public Authorities and approved by the California Department of Social Services (CDSS) and the Department of Health Care Services

23

(DHCS) remain in effect until counties submit new Rate Change Requests through the process outlined in Welfare and Institutions Code Section 12306.1 and CDSS and DHCS approve those

24

requests.

25 Id., Ex. T. The Notice still gave counties no information about how long this process would take.

26

Since learning of the Preliminary Injunction, almost every single county that requested a reduced

27 rate as a result of Section 12306.1(d)(6) wants to pay IHSS providers the pre-Section 12306.1(d)(6) rate.

28 McDevitt Supp. Decl. ¶¶8-12; Roth Supp. Decl. ¶2; Nam Supp. Decl. ¶5; Mancini Decl. ¶6; Malberg

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1 Supp. Decl. ¶¶3-5.4 Despite the fact that CDSS failed to notify counties of the existence of the

2 Preliminary Injunction until June 30, 2009, and despite the absence of instructions from CDSS until July

3 3 as to how to reinstate the pre-July 1, 2009 wage rates, most of these counties have already submitted

4 written rate change packets or otherwise communicated to CDSS their desire to maintain the pre-July 1,

5 pre-Section 12306.1(d)(6) wage and benefit rate. McDevitt Supp. Decl. ¶¶9-11 & Exs. G-I (Mendocino,

6 Alameda, Napa); Roth Supp. Decl. ¶2 (Placer); Nam Supp. Decl. ¶3 (Santa Barbara); Mancini Decl. ¶6

7 (San Mateo); Malberg Supp. Decl. ¶¶3-4 (Yolo, Contra Costa); see also McDevitt Supp. Decl. ¶12

8 (Solano County will submit request this week). Other counties have informed SEIU of their intent to

9 maintain the pre-July 1 rate. Malberg Supp. Decl. ¶5 (Calaveras); McDevitt Supp. Decl. ¶8 (San

10 Benito).

11

Despite receipt of these oral and written notifications, State Defendants have refused to maintain

12 the current rate. Instead, State Defendants informed counties that they must both formally submit new

13 Rate Change Requests and wait at least 60 days for CDSS to review and approve the “new” rate. For

14 example, when Lisa Mancini, the Director of Aging and Adult Services for San Mateo County, contacted

15 Eileen Carroll of CDSS requesting confirmation that San Mateo’s pre-July 1 wage rate would be

16 effective for the July 1 through July 15 pay period, Ms. Carroll “would not confirm that” and instead told

17 Ms. Mancini “that CDSS would process this rate change request pursuant to its ‘normal’ procedures and

18 that it would take 60 days for the rate change to be effective.” Mancini Decl. ¶8; see also McDevitt

19 Supp. Decl., Ex. I (Napa County received email from Rolonda Moen of CDSS stating that counties must

20 submit new wage packets, which will not be effective until September 1); Malberg Supp. Decl. ¶4

21 (CDSS advised Contra Costa that it will take 60 days to approve and implement rate change); Leyton

22 Supp. Decl., Ex. L (July 2 letter from CDSS to the California Association of Public Authorities stating

23 that “the Rate Change Requests that were submitted by PA’s and approved by [CDSS and DHCS]

24 remain in effect until counties submit new Rate Change Requests through the process outlines in

25

26

4 As noted above, Plaintiffs have been unable to determine whether Riverside County intends to

maintain the pre-July 1 wage rate. In addition, Plaintiffs have been unable to confirm whether San Luis

27 Obispo requested a rate reduction because of Section 12306.1(d)(6). Only Fresno County has

definitively stated its intent to proceed with a rate cut despite this Court’s Preliminary Injunction.

28 Malberg Supp. Decl. ¶6.

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1 Welfare and Institutions Code section 12306.1 and CDSS and DHCS approve those requests”); id., Ex.

2 T.

3

Indeed, State Defendants have explicitly taken this position in their motion asking the Ninth

4 Circuit to stay this Court’s preliminary injunction. There they submitted a declaration from a CDSS

5 official stating:

6

CDSS cannot change the amount that is paid directly to IHSS providers until such time as another PA Rate Change Request is submitted to the State to change the wages and benefits to be

7

paid. In order to change the current level of wages and benefits paid to IHSS providers for whatever reason, a county’s Public Authority must submit the new Rate Change Request to

8

CDSS. Both CDSS and the Department of Health Care Services (DHCS) review the PA rate for compliance with applicable state and federal law. The entire Rate Change Request process takes

9

approximately 60 days.

10 Leyton Supp. Decl., Ex. M ¶8 (emphasis added). State Defendants’ Stay Motion to the Ninth Circuit

11 further underscores their position, claiming that “[a] stay will not result in any irreparable injury to IHSS

12 providers or beneficiaries during the pendency of an expedited appeal; indeed, it would have no effect.”

13 Id., Ex. N at 8 (emphasis in original); see also id. at 26-27 (“IHSS providers and beneficiaries will not be

14 immediately impacted in any way by the injunction.”) (emphasis in original).

15

In other words, State Defendants are arguing in the Ninth Circuit that staying this Court’s

16 Preliminary Injunction will have no effect on providers and consumers because State Defendants do not

17 intend to comply with the injunction by permitting counties to retain the wage rates that would be in

18 effect but for Section 12306.1(d)(6).

19

On June 30, 2009, Plaintiffs’ counsel wrote to State Defendants’ counsel, informing them that

20 even if State Defendants disagreed with Plaintiffs’ position that the injunction automatically rescinds the

21 rate change requests submitted pursuant to Section 12306.1(d)(6), “there cannot be any question that the

22 Court order requires the State to continue to pay the pre-July 1 wage rate to IHSS providers in any

23 county that informs the State that its PA Rate Change Request lowering the rate was predicated on the

24 enactment of § 12306.1(d)(6) and that, now that the statute has been enjoined by Judge Wilken, wants

25 the pre-July 1 rate to remain in effect.” Leyton Supp. Decl., Ex. O at 1. Plaintiffs’ counsel requested

26 confirmation that “providers in counties that notify the State that during the pendency of the preliminary

27 injunction they want the pre-July 1 wage rate to remain in effect will continue to receive that wage in the

28 first July pay period and thereafter.” Id. at 2. Rather than provide such confirmation, State Defendants’

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1 counsel sent a non-responsive letter on July 1, 2009 which failed to address Plaintiffs’ question but

2 stated the following: “the only effect that Judge Wilken’s injunction has is on how much the state must

3 contribute toward the wages and benefits set forth in a county’s MOU,” and “the State does not have the

4 authority to dictate how much counties should pay their IHSS providers.” Leyton Supp. Decl., Ex. P.

5 On July 2, 2009, Plaintiffs’ counsel informed State Defendants’ counsel that Plaintiffs interpreted State

6 Defendants’ letter to confirm that State Defendants did not intend to permit counties that informed

7 CDSS that they wanted to retain their pre-July 1 wage rate to do so, and that Plaintiffs intended to pursue

8 all available remedies to enforce State Defendants’ compliance. Id., Ex. Q. State Defendants’ counsel

9 has not responded to this letter.

10

Among the counties affected by this Court’s injunction is San Mateo County, which had sent a

11 rate change request to CDSS on June 1, 2009 requesting that the rate be reduced from $11.50 to $10.50

12 solely because of Section 12306.1(d)(6). Mancini Decl. ¶¶2, 4 & Ex. A. On June 29, 2009, San Mateo

13 County officials sent a letter to CDSS stating that the $10.50 wage rate request had been “predicated on

14 the State’s announcement that it would decrease the amount of its participation in the Independent

15 Provider wage,” and requesting that effective July 1, 2009, San Mateo County’s rate be $11.50 so long 16 as the preliminary injunction remained in effect. Id., ¶6 & Ex. C.5 The County enclosed the CDSS rate

17 form and worksheets with this letter. Id. As set forth in the accompanying declaration of Lisa Mancini,

18 the Director of Aging and Adult Services for San Mateo County:

19

On June 30, 2009, I spoke with Eileen Carroll of CDSS and asked her to confirm that our June 29th $11.50 rate change would be in effect for the July 1-15 pay period. She would not confirm

20

that. Instead, she told me that CDSS would process this rate change request pursuant to its “normal” procedures and that it would take 60 days for the rate change to be effective.

21 Id. ¶8. When an attorney from San Mateo County Counsel’s office contacted CDSS Assistant Chief

22 Counsel Janine LaMar to ask why CDSS intended to require San Mateo County to wait 60 days before

23 the $11.50 rate would be effective, even though CDSS had processed the rate change requests in

24 implementation of Section 12306.1(d)(6) much more quickly, Ms. LaMar answered that CDSS had

25 committed all resources to processing the Section 12306.1(d)(6) rate changes, and now it was processing

26

27

5 San Mateo County sent this letter despite the fact that it had not received any information from

CDSS explaining how the injunction would be implemented “because we felt it was urgent to establish

28 the wages to be in effect on July 1, 2009.” Mancini Decl. ¶7.

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1 rate change requests according to “normal” procedures. Leyton Decl. ¶13. San Mateo County made a 2 preliminary estimate of the cost of a 60-day delay in State implementation of the $11.50 per hour wage. 3 If the County is required to pay providers $11.50 per hour but is unable to obtain state or federal 4 matching funds for 60 days because the rate is not approved, it will cost the County $830,466. Mancini 5 Decl. ¶11. On July 2, Ms. Mancini wrote a letter to CDSS informing it of this cost to the County and 6 requesting written confirmation that the $11.50 rate would be effective in time for the July 1-15 pay 7 period or, alternatively, asking when the rate would be effective and what the State’s plans were for 8 retroactively paying the State and federal match. Id. ¶12 & Ex. D. Ms. Mancini requested a response by 9 the close of business on July 6th. Id. As of the morning of July 7, she had received no response. Id.

10

ARGUMENT

11 A. State Defendants Are In Contempt Of This Court’s Preliminary Injunction

12

1. Contempt standard

13

A district court “has wide latitude in determining whether there has been a contemptuous

14 def[ianc]e of its order.” Stone v. City and County of San Francisco, 968 F.2d 850, 856 (9th Cir. 1992)

15 (internal quotation marks omitted). The moving party must demonstrate by clear and convincing

16 evidence that the alleged contemnor violated “a specific and definite order of the court.” Id. at 856 n.9.

17 The burden then shifts to the opposing party to demonstrate that “they took every reasonable step to

18 comply.” Id. The contempt “need not be willful, and there is no good faith exception to the requirement

19 of obedience to a court order.” In re Dual-Deck Video Cassette Recorder Antitrust Litig., 10 F.3d 693,

20 695 (9th Cir. 1993).

21

2. State Defendants are clearly violating this Court’s injunction

22

State Defendants’ admitted actions – a deliberate and blatant refusal to preserve the status quo as

23 it existed prior to Section 12306.1(d)(6) – violates the preliminary injunction’s direct order enjoining

24 them “from implementing California Welfare and Institutions Code § 12306.1(d)(6) without first

25 conducting the analysis required by 42 U.S.C. § 1396a(a)(30)(A) . . . .”

26

There is no question that the thirteen counties which submitted Rate Change Requests to CDSS

27 seeking to reduce the wages of IHSS providers after CDSS notified counties of Section 12306.1(d)(6)

28 and required a new rate submission for the period commencing July 1, 2009, did so as a direct result of

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1 Section 12306.1(d)(6). Indeed, some of the Rate Change Requests explicitly said so. See supra at 3.

2 That CDSS may have approved these requests before the issuance of this Court’s injunction is entirely

3 irrelevant. To give effect to those rate changes – which were submitted and approved only as a direct

4 result of Section 12306.1(d)(6) – is without question an “implement[ation]” of Section 12306.1(d)(6).

5

State Defendants’ reasoning for their action, set forth in their July 1, 2009 letter to Plaintiffs’

6 counsel, makes no sense. First, State Defendants protest that they do not control the rates set by

7 counties, which are established through collective bargaining. See Leyton Supp. Decl., Ex. P. But State

8 Defendants made this very argument to this Court, which soundly rejected it, finding that “§

9 12306.1(d)(6) has a direct influence on the wages for each county because it reduces the maximum

10 payment towards wages and benefits that the State will contribute.” Order Granting Prelim. Inj. 10:5-8

11 (emphasis added). State Defendants’ continued assertion that they have no impact on the IHSS provider

12 rates flies directly in the face of this Court’s contrary finding.

13

Moreover, State Defendants’ denial of their role contradicts State Defendants’ sweeping

14 invalidation of CDSS’s approval of any wage rate over $10.10, effective July 1, 2009, pursuant to

15 Section 12306.1(d)(6). Leyton Supp. Decl., Ex. C (DHCS analysis of Section 12306.1(d)(6), stating that

16 “the PA rates, which are based upon the amount of state funding appropriated, are not approved as of

17 July 1, 2009, and the counties will need to submit new rate packages for approval”). State Defendants

18 cannot both have the authority to invalidate those pre-July 1st rate approvals, yet lack authority to

19 invalidate the later approvals based solely on the implementation of now-enjoined Section

20 12306.1(d)(6).

21

In any event, State Defendants’ rebuttal of a strawman – that they cannot force counties to pay a

22 rate those counties do not want to pay – is contradicted in blatant terms by State Defendants’ current

23 efforts to do just that. Numerous counties have informed CDSS that, in light of this Court’s Preliminary

24 Injunction, they want to maintain the status quo, pre-Section 12306.1(d)(6) rate. Yet, State Defendants

25 are refusing to permit the counties to pay providers these rates for at least 60 days while State

26 Defendants review and process the “rate change” according to “normal” procedures and timelines (as

27 opposed to the expedited processing CDSS did in implementation of Section 12306.1(d)(6)). As State

28 Defendants indicated in their brief to the Ninth Circuit, this position effectively nullifies the Preliminary

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1 Injunction. Leyton Supp. Decl., Ex. N (State Defendants’ Ninth Circuit brief, asserting that “[a] stay

2 will not result in any irreparable injury to IHSS providers or beneficiaries during the pendency of an

3 expedited appeal; indeed, it would have no effect.”) (emphasis in original). Indeed, it makes a mockery

4 of this Court’s Order.

5

There is no defense to State Defendants’ denial of the pre-July 1st wage to providers. First, as

6 previously mentioned, State Defendants’ actions are inconsistent with their purported position that they

7 cannot force counties to pay a wage rate other than the rate set by the counties. See id., Ex. P. What

8 State Defendants are now doing is preventing counties from maintaining the pre-July 1 wage rates over

9 those counties’ objections.6

10

Second, counties are not seeking a rate change at all; they are simply trying to maintain the wage

11 rate that was in place through June 30, 2009, and that would have remained in place but for the

12 implementation of Section 12306.1(d)(6). The only reason the rate would decrease effective July 1,

13 2009 and then need to increase again after that date would be if State Defendants continue to violate this

14 Court’s Preliminary Injunction.

15

Third, even if it were true that State Defendants were required to process formal rate change

16 requests in order to maintain the status quo, pre-July 1 rate, there is no reason this would need to take

17 anywhere near 60 days. These rates were already approved by CDSS when they were implemented prior

18 to Section 12306.1(d)(6). And State Defendants have demonstrated that they are fully capable of

19 expediting the review process. Indeed, as set forth above (supra at 3), when processing Rate Change

20

6 State Defendants’ statement that they cannot approve rate changes that do not comport with 21 collective bargaining agreements between the counties and unions representing the IHSS providers has

nothing to do with the issues before the Court. See Leyton Supp. Decl., Ex. P. As State Defendants are 22 aware, most counties’ collective bargaining agreements require the counties to pay the pre-Section

23

12306.1(d)(6) rate now that the state cuts have been enjoined. See McDevitt Supp. Decl., Ex. A (letter from Alameda County to CDSS submitting its request to reduce the rate in light of Section

24

12306.1(d)(6) and explaining that the county’s collective bargaining agreement “states that if state (or federal) participation levels are reduced, wages will be reduced by the amount necessary to keep the cost

25

to the County the same as it was before the change”); see also Leyton Supp. Decl., Ex. R (letter from Yolo County stating that the injunction “eliminat[es] the contractual basis under the Public Authority’s

26 Memorandum of Understanding with its employees’ union for the Public Authority’s planned reduction in the wage rate paid to Yolo County IHSS workers”); Mancini Decl. Ex. D (San Mateo County’s

27 collective bargaining agreement provides that the county will pay $11.50 per hour as long as the state

participates in that rate; county submitted rate reduction request solely because of Section

28 12306.1(d)(6)).

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1 Requests submitted pursuant to Section 12306.1(d)(6), State Defendants reviewed and officially

2 approved rate changes in as little as one week. McDevitt Supp. Decl., ¶¶6-7 & Exs. D-E. Yet State

3 Defendants’ firm position now is that counties’ requests to maintain the pre-Section 12306.1(d)(6) rates

4 will not be approved in time to be effective before approximately September 1, 2009. See, e.g., id., ¶11

5 & Ex. I; Mancini Decl. ¶8 (CDSS official told San Mateo County that the State intends to process the

6 County’s June 29th Rate Change Request pursuant to its “normal” procedures which will delay the

7 effective date of the rate change request for 60 days); Leyton Supp. Decl., Ex. M, ¶8 (declaration from

8 CDSS official stating: “The entire Rate Change Request process takes approximately 60 days.”);

9 Mahlberg Decl., ¶4. When confronted with this discrepancy, State Defendants have informed counties

10 that they employed the necessary resources to expedite the Section 12306.1(d)(6) rate change approvals,

11 but are currently proceeding under “normal” procedures. Leyton Supp. Decl., ¶13.

12

To take at least 60 days to re-establish the pre-July 1st rate as opposed one week to eliminate that

13 rate under Section 12306.1(d)(6) is to flagrantly defy this Court’s Preliminary Injunction. State

14 Defendants’ contumacious conduct is ensuring that the reduced rates caused by Section 12306.1(d)(6)

15 will go into effect and remain in effect for at least two months. And in counties that are obligated by

16 collective bargaining agreements to pay providers the pre-July 1 rate now that Section 12306.1(d)(6) has

17 been enjoined, State Defendants’ conduct will cost those counties hundreds of thousands of dollars that

18 they are unlikely to be able to recoup. As Ms. Mancini, the Director of Aging and Adult Services for

19 San Mateo County, notes:

20

We are unaware of any way that the Public Authority can pay the providers $11.50 per hour if the State has not changed the rate, nor are we aware of how we could receive and/or process

21

payments from the State retroactive to July 1. We are also unaware of any way that we could draw down federal dollars for this time period retroactively.

22 Mancini Decl. ¶10; see also id. Ex. D (San Mateo County letter to CDSS).

23

Contempt need not be willful, In re Dual-Deck, 10 F.3d at 695, but here civil contempt sanctions

24 are certainly warranted as the violating party, by deliberately engaging in a protracted stall, “is simply

25 playing games with the court.” S.E.C. v. Elmas Trading Corp., 824 F.2d 732, 733 (9th Cir. 1987). State

26 Defendants have demonstrated that their noncompliance is conscious and willful by falsely telling this

27 Court on July 26, 2009 that they would issue an all-county information notice “immediately” but then

28

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1 waiting five days to do so; by failing to inform counties which rate would be in effect on July 1, 2009

2 and how counties could reinstate the pre-July 1 rates until July 3; and by making providers and

3 consumers wait 60 days to process a pro forma request by counties to maintain the pre-July 1st wage rate

4 now that Section 12306.1(d)(6) has been enjoined when rate change requests were previously processed

5 in as little as one week. See supra at 3.

6

Finally, State Defendants cannot claim that they are complying with any reasonable

7 understanding of this Court’s injunction. The injunction specifically orders State Defendants to refrain

8 from “implementing” Section 12306.1(d)(6). Yet State Defendants are proceeding to implement the

9 statute by imposing – over counties’ expressed desires – the reduced wage and benefit rates that were

10 submitted and approved solely because of the implementation of Section 12306.1(d)(6). As San Mateo

11 County, one of the many counties trying to maintain the pre-Section 12306.1(d)(6) rates, noted in a letter

12 to CDSS: “we do not see how the State can be in compliance with the Court’s injunction while

13 simultaneously failing to immediately implement the Public Authority’s June 29th Rate Change

14 Request.” Mancini Decl. Ex. D.

15

If there were any doubt that the plain language of the injunction precluded this – and Plaintiffs

16 maintain there is not – it is entirely removed by the written order which followed the preliminary

17 injunction. There, the Court plainly set forth the reasoning underlying the preliminary injunction. See In

18 re Dual-Deck Video Cassette Recorder Antitrust Litig., 10 F.3d 693, 695 (9th Cir. 1993) (looking to

19 “whereas” clauses to clarify meaning of order); United States v. Young, 107 F.3d 903, (D.C. Cir. 1997)

20 (looking to “the context in which [the order] is issued and the audience to which it is addressed” to

21 determine whether an order is sufficiently clear to justify a finding of contempt).

22

This Court’s issuance of a preliminary injunction was based on its finding that the wage rate

23 reductions caused by Section 12306.1(d)(6) “will cause many IHSS providers to leave employment,

24 which in turn will leave consumers without IHSS assistance. The consumers’ quality of life and health-

25 care will be greatly diminished, which will likely cause great harm to disabled individuals.” Order

26 Granting Prelim. Inj. 10:26-11:3. This Court also found that IHSS providers would suffer “immediate

27 and irreparable harm” from the reduced wages. Id. 11:11-12. State Defendants’ actions – implementing

28 wage reductions that were instituted solely because of Section 12306.1(d)(6) – will cause Medicaid

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1 payment rates to be reduced in implementation of Section 12306.1(d)(6) without consideration of the

2 impact of those reduced rates on the Section 30(A) factors and will cause irreparable harm to befall

3 IHSS consumers and providers. See Mancini Decl. ¶10 (statement by Director of Aging and Adult

4 Services for San Mateo County: “Any delay in implementing our $11.50 rate request will cause

5 immediate harm to the San Mateo County Public Authority and independent providers.”). The Court’s

6 reasoning in support of its issuance of a preliminary injunction makes clear that it intended to prevent

7 rate reductions pursuant to the implementation of Section 12306.1(d)(6) from going into effect, not

8 simply to require the State to maintain its non-federal share of the provider wage in counties that had

9 decided not to lower rates despite Section 12306.1(d)(6), because they intended to make up the

10 difference out of county funds.

11

Moreover, the purpose of a preliminary injunction is to maintain the status quo pending a hearing

12 on the merits. See Transwestern Pipeline Co. v. 17.19 Acres of Property Located in Maricopa County,

13 550 F.3d 770, 776 (9th Cir. 2008). Here, the status quo that the injunction was intended to preserve is

14 the rates in effect before July 1, not the lower wage rates that would become effective on July 1 in some

15 counties because of Section 12306.1(d)(6). In other words, the injunction was intended to preserve the

16 situation that would have existed as if Section 12306.1(d)(6) had never been enacted and implemented. 17 State Defendants’ actions will instead ensure that the status quo is changed. This constitutes a clear 18 violation of this Court’s preliminary injunction.

19

3. Remedy

20

State Defendants have made clear that they will maintain their defiance of this Court’s order for

21 as long as possible. This defiance harms not only counties, consumers, and providers, but also the very

22 authority of the federal courts. “If a party can make himself a judge of the validity of orders which have

23 been issued, and by his own act of disobedience set them aside, then the courts are impotent, and what

24 the Constitution now fittingly calls ‘the judicial power of the United States’ would be a mere mockery.”

25 Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 450 (1911).

26

To ensure that State Defendants immediately comply with this Court’s Preliminary Injunction,

27 Plaintiffs ask this Court to impose monetary sanctions in the form of a conditional fine of $500,000 per

28 day payable to the Court, starting on July 10 if State Defendants have not certified to the Court as of that

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1 date that they will pay IHSS providers at the pre-July 1 rates for the pay period commencing July 1, 2009

2 in all counties that inform or have informed CDSS that they wish to maintain that rate, and continuing

3 until State Defendants so certify. See United States v. Ayres, 166 F.3d 991, 995 (9th Cir. 1999) (“One of

4 the paradigmatic civil contempt sanctions is a per diem fine imposed for each day a contemnor fails to

5 comply with an affirmative court order.”). A prospective sanction of this magnitude is necessary to

6 ensure that State Defendants actually and immediately comply with the preliminary injunction, rather

7 than make an economic decision to continue their defiance of a federal court order.

8

Plaintiffs further seek attorneys’ fees to compensate them for the cost of bringing this motion.

9 See In re Crystal Palace Gambling Hall, Inc., 817 F.2d 1361, 1366-67 (9th Cir. 1987) (awarding

10 monetary contempt sanctions to “compensate the contemnor’s adversary for the injuries which result

11 from the noncompliance”); see also In re Dyer, 322 F.3d 1178, 1195 (9th Cir. 2003) (“attorneys’ fees are

12 an appropriate component of a civil contempt award”).

13 B. In The Alternative, This Court Should Issue A More Specific Preliminary Injunction

14

Although it is Plaintiffs’ position that the requirements imposed by the Preliminary Injunction are

15 abundantly clear, if the Court concludes otherwise, Plaintiffs seek in the alternative a more specific

16 Preliminary Injunction that invalidates all rate reduction requests submitted and approved to be effective

17 July 1, 2009. Alternatively, Plaintiffs seek, at the very least, a more specific preliminary injunction

18 directing State Defendants to reinstate the pre-July 1 wage rate immediately for any county that informs

19 or has informed CDSS that it wishes to retain that rate during the pendency of the preliminary injunction.

20

A more specific preliminary injunction that invalidated all rate reduction requests submitted and

21 approved to be effective July 1, 2009 would ensure that the pre-July 1, 2009 status quo remains in effect 22 for the duration of the preliminary injunction.7

23

Alternatively, a more specific preliminary injunction that, at the very least, directs State

24 Defendants to reinstate immediately, starting with the post-July 1, 2009 pay period, the pre-July 1st wage

25 rate for any county that informs or has informed CDSS that it wants the pre-July 1st rate to be paid

26 7 Such an injunction would not prohibit Fresno County from submitting a new Rate Change
27 Request for reasons independent of Section 12306.1(d)(6). Plaintiffs reserve all challenges to such a request, but simply note that the more specific injunction requested here would not bar Fresno from
28 submitting it.

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1 during the pendency of the preliminary injunction, would circumvent State Defendants’ deliberate foot2 dragging response to such counties’ requests.

3

CONCLUSION

4

For the foregoing reasons, Plaintiffs’ motion for civil contempt sanctions or, in the alternative,

5 for a more specific preliminary injunction should be granted.

6 7 Dated: July 7, 2009 8 9 10 11 12 13

STEPHEN P. BERZON (SBN 46540) SCOTT KRONLAND (SBN 171693) STACEY M. LEYTON (SBN 203827) PEDER J. THOREEN (SBN 217081) ANNE N. ARKUSH (SBN 254985) Altshuler Berzon LLP
By: __/s/ Stacey M. Leyton_________ Stacey M. Leyton
Attorneys for Plaintiffs

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 Case4:09-cv-02306-CW Document158 Filed07/07/09 Page1 of 2

1 STEPHEN P. BERZON (SBN 46540) SCOTT A. KRONLAND (SBN 171693)
2 STACEY M. LEYTON (SBN 203827) PEDER J. THOREEN (SBN 217081)
3 ANNE N. ARKUSH (SBN 254985) Altshuler Berzon LLP
4 177 Post Street, Suite 300 San Francisco, California 94108
5 Telephone: (415) 421-7151 Facsimile: (415) 362-8064
6 sberzon@altshulerberzon.com skronland@altshulerberzon.com
7 sleyton@altshulerberzon.com pthoreen@altshulerberzon.com
8 aarkush@altshulerberzon.com

9 Attorneys for Plaintiffs

10

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

11

SAN FRANCISCO/OAKLAND DIVISION

12 MIKESHA MARTINEZ, by and through her ) Case No. C 09-02306 CW

husband and next friend Carlos Martinez, LYDIA )

13 DOMINGUEZ, ALEX BROWN, by and through )

his mother and next friend Lisa Brown, DONNA ) CLASS ACTION

14 BROWN, CHLOE LIPTON, by and through her )

conservator and next friend Julie Weissman-

) ORDER GRANTING PLAINTIFFS’ EX

15 Steinbaugh, HERBERT M. MEYER, LESLIE ) PARTE MOTION TO SHORTEN TIME

GORDON, CHARLENE AYERS, WILLIE

) FOR PLAINTIFFS’ MOTION FOR CIVIL

16 BEATRICE SHEPPARD, and ANDY

) CONTEMPT SANCTIONS OR, IN THE

MARTINEZ, on behalf of themselves and a class ) ALTERNATIVE, FOR A MORE

17 of those similarly situated; SERVICE

) SPECIFIC PRELIMINARY INJUNCTION

EMPLOYEES INTERNATIONAL UNION

) SO THAT RELIEF CAN BE GRANTED

18 UNITED HEALTHCARE WORKERS WEST; ) BY JULY 9, 2009 OR AS SOON

SERVICE EMPLOYEES INTERNATIONAL ) THEREAFTER AS POSSIBLE

19 UNION UNITED LONG-TERM CARE

)

WORKERS; SERVICE EMPLOYEES

)

20 INTERNATIONAL UNION LOCAL 521; and )

SERVICE EMPLOYEES INTERNATIONAL )

21 UNION CALIFORNIA STATE COUNCIL,

)

)

22

Plaintiffs,

)

)

23

v.

)

)

24 ARNOLD SCHWARZENEGGER, Governor of )

the State of California; JOHN A. WAGNER, )

25 Director of the California Department of Social )

Services; DAVID MAXWELL-JOLLY, Director )

26 of the California Department of Health Care

)

Services; JOHN CHIANG, California State

)

27 Controller; FRESNO COUNTY; and FRESNO )

COUNTY IN-HOME SUPPORTIVE SERVICES )

28 PUBLIC AUTHORITY,

)

)

Defendants.

)

)

Case4:09-cv-02306-CW Document158 Filed07/07/09 Page2 of 2

1

Good Cause Shown, Plaintiffs’ Motion To Shorten Time for their Motion for Civil Contempt

2 Sanctions or, in the Alternative, for a More Specific Preliminary Injunction, is hereby GRANTED. The

3 schedule for Plaintiffs’ Motion shall be as follows:

4

Defendants shall file and serve their opposition papers by no later than July 9, 2009, at 5:00 p.m.

5 Plaintiffs shall file and serve their reply papers by no later than July 10, 2009, at 5:00 p.m. The matter

6 will be taken under submission on the papers.

7

IT IS SO ORDERED.

8

9 Dated: July 7, 2009 10

_____________________________ United States District Judge

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26 27 28
1

[Proposed] Order Granting Pls. Mot. To Shorten Time; Case No. C 09-02306 CW

 
 Case4:09-cv-02306-CW Document172 Filed07/13/09 Page1 of 6

United States District Court For the Northern District of California

1

2

3

4

5 IN THE UNITED STATES DISTRICT COURT
6

7

FOR THE NORTHERN DISTRICT OF CALIFORNIA

8

9 MIKESHA MARTINEZ, et al.,

10

Plaintiffs,

11

v.

12 ARNOLD SCHWARZENEGGER, et al.,

No. C 09-02306 CW
ORDER CLARIFYING INJUNCTION AND DENYING PLAINTIFFS’ MOTION FOR CIVIL CONTEMPT SANCTIONS

13

Defendants.

/

14

15

On June 26, 2009, the Court enjoined and restrained Defendants

16 from implementing California Welfare and Institutions Code

17 § 12306.1(d)(6) without first conducting the analysis required by

18 42 U.S.C. § 1396a(a)(30)(A), as described in Orthopaedic Hospital

19 v. Belshe, 103 F.3d 1941, 1943 (9th Cir. 1997). Plaintiffs have

20 now filed a motion for civil contempt sanctions, or in the

21 alternative, for a more specific injunction. In this motion,

22 Plaintiffs assert that State Defendants1 refuse to permit counties

23 that want to maintain their pre-§ 12306.1(d)(6) wage rates for In-

24 Home Support Services (IHSS) to do so. Defendants argue that the

25 injunction does not require the State immediately to reinstate the

26

27

1State Defendants include Governor Arnold Schwarzenegger, Director of the California Department of Social Services John A.

28

Wagner and Director of the California Department of Health Care Services David Maxwell-Jolly.

Case4:09-cv-02306-CW Document172 Filed07/13/09 Page2 of 6

United States District Court For the Northern District of California

1 pre-§ 12306.1(d)(6) wage rate. Defendants assert that any county

2 that wishes to set its rate to the pre-§ 12306.1(d)(6) level must

3 submit a Rate Change Request, which can take up to approximately

4 sixty days to implement. After having considered the papers filed

5 by the parties, the Court clarifies its injunction and denies

6 Plaintiffs’ motion for contempt sanctions.

7

BACKGROUND

8

On February 20, 2009, the Governor signed into law California

9 Welfare and Institutions Code § 12306.1(d)(6). Under this law, the

10 State’s maximum contribution to wages and benefits would have been

11 reduced from sixty-five percent of the non-federal share of an

12 hourly rate of $12.10 to sixty-five percent of the non-federal

13 share of an hourly rate of $10.10. The latter rate represents

14 $9.50 for wages and $0.60 for benefits.

15

On April 2 and May 1, 2009, the California Department of

16 Social Services (CDSS), the agency that administers the IHSS

17 program, issued notices to counties regarding § 12306.1(d)(6).

18 These notices “inform[ed] counties how this change will be

19 implemented.” Leyton Supp. Decl., Ex. A. The April notice stated,

20 “Counties must submit a PA Rate Change Request to reduce the wages

21 and health benefits to the $10.10 state participation level no

22 later than May 1, 2009 to be within the 60-day approval process

23 timeline.” Id. The May notice similarly stated, “Counties

24 currently providing wages and individual health benefits above

25 $10.10 must submit a PA Rate Change Request to reflect the change

26 in the maximum amount in which the state will participate.” Id.,

27 Ex. B. The May notice also extended the May 1, 2009 deadline to

28 June 1, 2009. Through these notices, State Defendants told

2

Case4:09-cv-02306-CW Document172 Filed07/13/09 Page3 of 6

United States District Court For the Northern District of California

1 counties that, as of July 1, § 12306.1(d)(6) required counties to

2 submit new Rate Change Requests because CDSS’s prior approvals of

3 rates above $10.10 would no longer be valid for reimbursement by

4 the State. If a county did not reduce wages and benefits to $10.10

5 or below, it would have to make up the difference between the

6 State’s current contribution and the county’s rate.

7

Upon receipt of these notices, at least thirteen counties

8 submitted Rate Change Requests seeking to reduce IHSS provider

9 wages. Although CDSS claims that the process to approve a Rate

10 Change Request could take up to sixty days, CDSS approved these

11 requests expeditiously. In at least two instances, CDSS approved

12 Rate Change Requests in one week.

13

The Court issued its injunction in this case on June 26. On

14 June 30, 2009, State Defendants sent an All-County Notice. The

15 notice stated,

16

This All County Information Notice notifies counties of the

recent court order in the case of Martinez v. Schwarzenegger.

17

On February 20, 2009, Senate Bill X3 6 (Chapter 13, Statutes

18

of 2009) was enacted, which amended Welfare and Institutions

Code section 123-6.1 to reduce the maximum state participation

19

in negotiated In-Home Supportive Services individual provider

wages and benefits from $12.10 per hour to $10.10 per hour.

20

This reduction was to take effect on July 1, 2009. On June

26, 2009, the federal district court for the Northern District

21

of California issued an injunction prohibiting the department

and other state agency defendants from implementing the above

22

reduction in maximum state participation. The maximum state

participation in wages and benefits will remain at $12.10 per

23

hour as long as the injunction remains in effect.

24 Leyton Supp. Decl., Ex. G. The notice provides no information

25 regarding how counties that had submitted rate change requests in

26 response to § 12306.1(d)(6) could ensure that the pre-July 1, 2009

27 rates would remain in effect in light of the Court’s injunction.

28

On July 3, 2009, CDSS issued an errata to all counties “to

3

Case4:09-cv-02306-CW Document172 Filed07/13/09 Page4 of 6

United States District Court For the Northern District of California

1 provide additional clarification regarding” the effect of the

2 Court’s injunction on the rate change process. The notice stated,

3

The Rate Change Requests that were submitted by Public

Authorities and approved by the California Department of

4

Social Services (CDSS) and the Department of Health Care

Services (DHCS) remain in effect until counties submit new

5

Rate Change Requests through the process outlined in Welfare

and Institutions Code Section 12306.1 and CDSS and DHCS

6

approve those requests.

7 Id., Ex. T.

8 Since the Court’s injunction, nine of the thirteen counties that

9 reduced their wages and benefits after § 12306.1(d)(6) was enacted

10 have submitted Rate Change Requests to return to the pre-

11 § 12306.1(d)(6) level.2

12

In response to the requests, State Defendants have informed

13 the counties that the requests can take up to sixty days to

14 process. Carrol Decl. at ¶ 7; see also, Mancini Decl. at ¶ 8;

15 McDevitt Supp. Decl., Ex. I; Malberg Supp. Decl. at ¶ 4; Leyton

16 Supp. Decl., Ex. L. In some communications, State Defendants have

17 asserted that they will work as “expeditiously” as possible on

18 processing the requests, Carrol Decl. At ¶ 7, and in other

19 communications they have stated that they will process them

20 according to “normal” procedures. Leyton Decl. ¶ 13. State

21 Defendants dispute Plaintiffs’ assertion that the injunction

22 requires them to ensure that the pre-§ 12306.1(d)(6) rates remain

23 in effect for the duration of the preliminary injunction.

24

DISCUSSION

25

The Court may issue a contempt order if Defendants “(1) []

26 violated the court order, (2) beyond substantial compliance,

27 2Those nine counties are Alameda, Contra Costa, Mendocino,
28 Napa, Placer, San Mateo, Santa Barbara, Solano and Yolo.

4

Case4:09-cv-02306-CW Document172 Filed07/13/09 Page5 of 6

United States District Court For the Northern District of California

1 (3) not based on a good faith and reasonable interpretation of the

2 order, and (4) by clear and convincing evidence.” In re Dual-Deck

3 Video Cassette Recorder Antitrust Litig., 10 F.3d 693, 695 (9th

4 Cir. 1993). The moving party must demonstrate by clear and

5 convincing evidence that the alleged “contemnors violated a

6 specific and definite order of the court.” Stone v. City and

7 County of San Francisco, 968 F.2d 850, 856 (9th Cir. 1992). The

8 contempt “need not be willful, and there is no good faith exception

9 to the requirement of obedience to a court order.” In re Dual

10 Deck, 10 F.3d at 695.

11

While the Court does not find State Defendants in contempt of

12 the Court’s preliminary injunction order, their manner of

13 compliance has not carried out the intent of the order.

14 Apparently, the Court’s order was not sufficiently specific. The

15 Court scheduled the hearing on the preliminary injunction for June

16 25 so that before July 1 all those concerned -- the State, the

17 counties, the providers and the elderly and disabled consumers --

18 would know what rate would be applied to hours worked on or after

19 July 1. At the hearing, the Court issued its order from the bench,

20 with a written order following on June 26, so that all those

21 concerned would know that, as of July 1, the rate could not be

22 reduced based on § 12306.1(d)(6). The Court declined to be more

23 specific in ordering the State exactly how to achieve this result,

24 not because the Court did not intend that the result obtain, but

25 only in deference to the State’s presumed ability to determine how

26 best to accomplish the result without unintended consequences. The

27 Court’s approach was apparently ineffective. Accordingly, the

28 Court now clarifies that the State Defendants shall, by the close

5

Case4:09-cv-02306-CW Document172 Filed07/13/09 Page6 of 6

United States District Court For the Northern District of California

1 of business on July 14, 2009,3 rescind the State’s approval of all

2 county rate reduction requests which were submitted after February

3 20, 2009, to be effective July 1, 2009, and reinstate the State’s

4 approval of the pre-July 1 rates. The State shall notify each

5 affected county of these action, using a method designed to ensure

6 that the notification is received on July 14. At the same time,

7 the State will notify these counties that it will pay sixty-five

8 percent of the non-federal share of the pre-July 1, 2009 rate up to

9 $12.10 for hours worked on July 1 and thereafter, until such time

10 as the Court's preliminary injunction is rescinded. The State

11 shall include a copy of the Court’s amended injunction in its

12 communication to the counties. The State may notify the counties

13 that they may submit new Rate Change Requests if they wish to

14 pursue a rate change for reasons other than the passage of

15 § 12306.1(d)(6).4

16

IT IS SO ORDERED.

17 Dated: 07/13/09
18
19

CLAUDIA WILKEN United States District Judge

20

21

22

23 3Immediate action is required because the pay period ends on
24 July 15.

25

4It is not clear from the papers submitted by the parties

whether Fresno County submitted one Rate Change Request with a 26 second reason for the request other than the passage of

§ 12306.1(d)(6) or if it submitted two requests. If it submitted 27 only one request, it must submit a separate request based on a

reason other than § 12306.1(d)(6) if it wishes to pursue a rate 28 reduction.

6

 
 Case4:09-cv-02306-CW Document176 Filed07/14/09 Page1 of 2

1 MICHAEL P. MURPHY, COUNTY COUNSEL (SBN 83887) PAUL A. OKADA, DEPUTY (SBN 197100)
2 DAVID A. SILBERMAN, DEPUTY (SBN 211708) Hall of Justice and Records
3 400 County Center, 6th Floor Redwood City, CA 94063
4 Telephone: (650) 363-4761 Facsimile: (650) 363-4034
5 E-mail: dsilberman@co.sanmateo.ca.us

6 Attorneys for Proposed Amicus Curiae SAN MATEO COUNTY IN-HOME SUPPORTIVE
7 SERVICES PUBLIC AUTHORITY

8

9

UNITED STATES DISTRICT COURT

10

NORTHERN DISTRICT OF CALIFORNIA

11

12 MIKESHA MARTINEZ, et al.,

Case No. CV C 09-02306 CW

13

Plaintiffs,

14

vs.

15 ARNOLD SCHWARZENEGGER, Governor of the State of California, et al.,
16 Defendants.
17

ORDER GRANTING THE COUNTY OF SAN MATEO’S MISCELLANEOUS ADMINISTRATIVE REQUEST TO BE GRANTED AMICUS CURIAE STATUS AND TO FILE AN AMICUS CURIAE BRIEF

18

19

20

21

22

23

24

25

26

27

28

Case No. CV C 09-02306 CW
ORDER GRANTING THE COUNTY OF SAN MATEO’S MISCELLANEOUS ADMINISTRATIVE REQUEST TO BE GRANTED AMICUS CURIAE STATUS AND TO FILE AN AMICUS CURIAE BRIEF

Case4:09-cv-02306-CW Document176 Filed07/14/09 Page2 of 2

1

Having reviewed the County of San Mateo’s miscellaneous administrative request to be granted

2 Amicus Curiae status and to file an Amicus Curiae brief and good cause appearing, the request is

3 GRANTED. An Amicus Curiae brief may be filed forthwith.

4 IT IS SO ORDERED.

5

7/14

6 Dated: _______________, 2009 7

________________________________________
CLAUDIA WILKEN, JUDGE UNITED STATES DISTRICT COURT

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Case No. CV C 09-02306 CW

2

ORDER GRANTING THE COUNTY OF SAN MATEO’S MISCELLANEOUS ADMINISTRATIVE REQUEST TO BE GRANTED AMICUS CURIAE STATUS AND TO FILE AN AMICUS CURIAE BRIEF

 
 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

FILED
JUL 14 2009
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

MIKESHA MARTINEZ, by and through her husband and next friend Carlos Martinez; et al.,
Plaintiffs - Appellees,
v.
ARNOLD SCHWARZENEGGER, Governor of the State of California; et al.,
Defendants - Appellants,
and
FRESNO COUNTY; et al.,
Defendants.

No. 09-16359 D.C. No. 4:09-cv-02306-CW Northern District of California, Oakland
ORDER

Before: CANBY and THOMAS, Circuit Judges. Appellants’ emergency motion for a stay of the district court’s June 26, 2009
preliminary injunction pending appeal is denied. The court takes judicial notice of the district court’s July 13, 2009 amended
preliminary injunction. If appellants wish to challenge the amended preliminary

MF/Pro Se

injunction, appellants must file a notice of appeal or an amended notice of appeal within the time prescribed by Federal Rule of Appellate Procedure 4(a).
Appellants’ motion to expedite this appeal is granted in part. The briefing schedule established on July 1, 2009 shall remain in effect. If appellants file the opening brief before July 27, 2009, the remainder of the briefing schedule will be reset according to Ninth Circuit Rule 3-3(b).
The Clerk shall calendar this case as soon as possible following the completion of briefing.

MF/Pro Se

2

09-16359

 
 Case4:09-cv-02306-CW Document179 Filed07/15/09 Page1 of 2

1 STEPHEN P. BERZON (SBN 46540) SCOTT A. KRONLAND (SBN 171693)
2 STACEY M. LEYTON (SBN 203827) PEDER J. THOREEN (SBN 217081)
3 ANNE N. ARKUSH (SBN 254985) Altshuler Berzon LLP
4 177 Post Street, Suite 300 San Francisco, California 94108
5 Telephone: (415) 421-7151 Facsimile: (415) 362-8064
6 sberzon@altshulerberzon.com skronland@altshulerberzon.com
7 sleyton@altshulerberzon.com pthoreen@altshulerberzon.com
8 aarkush@altshulerberzon.com

9 Attorneys for Plaintiffs

10

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

11

SAN FRANCISCO/OAKLAND DIVISION

12 MIKESHA MARTINEZ, by and through her ) Case No. C 09-02306 CW

husband and next friend Carlos Martinez, LYDIA )

13 DOMINGUEZ, ALEX BROWN, by and through )

his mother and next friend Lisa Brown, DONNA ) CLASS ACTION

14 BROWN, CHLOE LIPTON, by and through her )

conservator and next friend Julie Weissman-

) ORDER GRANTING PLAINTIFFS’ EX

15 Steinbaugh, HERBERT M. MEYER, LESLIE ) PARTE MOTION TO ENLARGE TIME

GORDON, CHARLENE AYERS, WILLIE

) FOR FRESNO DEFENDANTS’

16 BEATRICE SHEPPARD, and ANDY

) MOTIONS TO DISMISS AND TO SEVER

MARTINEZ, on behalf of themselves and a class ) CLAIMS

17 of those similarly situated; SERVICE

)

EMPLOYEES INTERNATIONAL UNION

)

18 UNITED HEALTHCARE WORKERS WEST; )

SERVICE EMPLOYEES INTERNATIONAL )

19 UNION UNITED LONG-TERM CARE

)

WORKERS; SERVICE EMPLOYEES

)

20 INTERNATIONAL UNION LOCAL 521; and )

SERVICE EMPLOYEES INTERNATIONAL )

21 UNION CALIFORNIA STATE COUNCIL,

)

)

22

Plaintiffs,

)

)

23

v.

)

)

24 ARNOLD SCHWARZENEGGER, Governor of )

the State of California; JOHN A. WAGNER, )

25 Director of the California Department of Social )

Services; DAVID MAXWELL-JOLLY, Director )

26 of the California Department of Health Care

)

Services; JOHN CHIANG, California State

)

27 Controller; FRESNO COUNTY; and FRESNO )

COUNTY IN-HOME SUPPORTIVE SERVICES )

28 PUBLIC AUTHORITY,

)

)

Defendants.

)

)

Case4:09-cv-02306-CW Document179 Filed07/15/09 Page2 of 2

1

Good Cause Shown, Plaintiffs’ Motion To Enlarge Time for Fresno Defendants’ Motions to

2 Dismiss and to Sever Claims is hereby GRANTED. On August 27, 2009, at 2:00 p.m., the Court shall

3 hold a hearing on Fresno Defendants’ Motions to Dismiss and to Sever Claims. The briefing schedule

4 shall comply with Local Rules 7-2 and 7-3.

5

IT IS SO ORDERED.

6

7 Dated: July 15, 2009 8

_____________________________ United States District Judge

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26 27 28
1

[Proposed] Order Granting Pls. Mot. To Enlarge Time, Case No. C 09-02306 CW

 
 Case4:09-cv-02306-CW Document195 Filed07/20/09 Page1 of 10

1 EDMUND G. BROWN JR. Attorney General of California
2 SUSAN M. CARSON Supervising Deputy Attorney General
3 State Bar No. 135875 MICHAEL ZWIBELMAN
4 Deputy Attorney General State Bar No. 224783
5 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102-7004
6 Telephone: (415) 703-5580 Fax: (415) 703-5480
7 E-mail: susan.carson@doj.ca.gov

8 Attorneys for State Defendants

9 IN THE UNITED STATES DISTRICT COURT
10 FOR THE NORTHERN DISTRICT OF CALIFORNIA
11

12

13

14 MIKESHA MARTINEZ, by and through CV 09-2306 CW

her husband and next friend Carlos

15 Martinez, et al.,

STATE DEFENDANTS’ OPPOSITION

TO PLAINTIFFS’ MOTION FOR CIVIL

16

Plaintiffs, CONTEMPT SANCTIONS AND A

FURTHER MORE SPECIFIC

17

v.

INJUNCTION

18

Date:

TBD

ARNOLD SCHWARZENEGGER,

Time:

TBD

19 Governor of the State of California, et al., Courtroom: 2

Judge

The Honorable Claudia Wilken

20

Defendants. Trial Date TBD

Action Filed: May 26, 2009

21

22

23

24

25

26

27

28

STATE DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MOTION FOR CIVIL CONTEMPT SANCTIONS AND A FURTHER MORE SPECIFIC INJUNCTION (CV 09-2306 CW)

Case4:09-cv-02306-CW Document195 Filed07/20/09 Page2 of 10

1

INTRODUCTION

2

Ignorant of how the entire process for payment to IHSS providers works, plaintiffs are here

3 again asking this court to micromanage the process. There is no need for the court to do so.

4 Since the issuance of the Amended Preliminary Injunction – in which the court ordered entirely

5 different relief from the original Preliminary Injunction over two weeks later—State defendants

6 have worked diligently to ensure that IHSS providers would be paid at the pre-July 1st level of

7 wages and benefits. Indeed, given that this court gave State defendants less than 24 hours to

8 accomplish all parts of the Amended Preliminary Injunction, State defendants did remarkably

9 well to comply with the order. However, now that plaintiffs realize what their delay in bringing 10 this lawsuit has wrought, they ask the court for a “further more specific injunction.” Had 11 plaintiffs filed this suit in April when they knew that section 12306.1(d)(6) would be 12 implemented,1 this court and State defendants would have had ample time to brief the issues and 13 to implement any preliminary injunction this court issued. Instead of acknowledging their delay,

14 plaintiffs continue to blame State defendants for their inability to accomplish what plaintiffs

15 intend to have happen—ignoring how the payment system works and the State’s role in that 16 process. State defendants are not in violation of the Amended Preliminary Injunction, and 17 therefore, once again plaintiffs’ motion for civil contempt sanctions should be denied. As for the 18 Motion for a Further More Specific Injunction that should be denied as well.

19

RELEVANT FACTS

20

This court issued its original Preliminary Injunction on late Friday afternoon, June 26, 2009.

21 On Tuesday, June 30th –the second business day thereafter – DSS issued an All-County

22 Information Notice (ACIN), notifying counties (the entities that not only negotiate with the union 23 the level of wages, but also administer the IHSS program) of the injunction. The original 24 injunction was clear: Section 12306.1(d)(6) was enjoined until State defendants did an analysis

25 1 On March 27, 2009, the State Treasurer confirmed that section 12306.1(d)(6) would be
26 implemented given the condition set in Government Code section 903030??? that if the State did not receive more than $10 billion in stimulus funds from the federal government, section
27 12306.1(d)(6), as well as other budget cuts, would go into effect. Nothing precluded plaintiffs from bringing suit immediately after that.
28 1
STATE DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MOTION FOR CIVIL CONTEMPT SANCTIONS AND A FURTHER MORE SPECIFIC INJUNCTION (CV 09-2306 CW)

Case4:09-cv-02306-CW Document195 Filed07/20/09 Page3 of 10

1 required under Orthopaedic Hosp. v. Beshe. Section 12306.1(d)(6) reduced the State’s

2 contribution to IHSS providers’ wages and benefits from $12.10 per hour to $10.10 per hour. It

3 does not dictate the level of providers’ wages and benefits at all. Plaintiffs recognizing this, filed

4 on Monday, June 29th (the next court day after the Preliminary Injunction was issued) an

5 Emergency Motion to Enforce the Preliminary Injunction which this court summarily denied.

6

The following week, plaintiffs filed a Motion to Civil Contempt Sanctions, or a More

7 Specific Injunction, this court issued an Amended Preliminary Injunction late Tuesday afternoon,

8 July 13th, and ordered State defendants to comply with its terms by 5:00 p.m. the next day, July

9 14th. In its Order Clarifying Injunction and Denying Plaintiffs’ Motion for Civil Contempt

10 Sanctions, this court stated: “Apparently, the Court’s order was not sufficiently specific.” Order

11 at 5. Accordingly, the court “clarified its order.

12

In its order, this court noted that only nine counties had sought to return to pre-July 1st

13 levels. Id. Four counties had not submitted Rate Change Requests after the original Preliminary

14 Injunction was issued and two had submitted Requests to pay a higher rate than pre-July 1st level.

15 In order to determine what these six counties wanted to do, DSS staff contacted them on July 14th.

16 Carroll Decl. ¶ . Three counties, agreed to return to pre-July 1st levels of wages and benefits.

17 Santa Barbara County did not, citing a separate and distinct basis for reducing its level of wages

18 and benefits, the loss of realiagnment funds. Fresno County had already submitted a second Rate

19 Change Request based on an alternative basis to the enactment of section 12306.1(d)(6) which 20 had been approved prior to July 1st. Carroll Decl. ¶ 5.2

21

Of the two that had submitted Requests to pay higher wages and benefits, Calaveras County

22 informed DSS that it would pay pre-July 1st rates, not the higher rate set forth in its latest Rate

23 Change Request. Contra Costa County informed DSS that it wanted to pay the level of wages

24

25

2 Plaintiffs’ counsel goes to extraordinary levels an attempt to prove that Fresno’s second

Rate Change Request was not valid. This is nothing more than form over substance. However,

26 on July 16th, SEIU sought and obtained a Temporary Restraining Order against Fresco County,

preventing the county from reducing its level of wages and benefits. Fresno has requested that

27 DSS make this change. Carroll Decl. ¶ . State defendants request that this court take judicial

notice of the Fresno County Superior Court order, attached hereto. Fed. R. Evid. 201(d).

28

2

STATE DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MOTION FOR CIVIL CONTEMPT SANCTIONS AND A FURTHER MORE SPECIFIC INJUNCTION (CV 09-2306 CW)

Case4:09-cv-02306-CW Document195 Filed07/20/09 Page4 of 10

1 and benefits set forth in its most recent Request. 3 Carroll Decl. ¶ 4.

2

Also, in response to the Amended Preliminary Injunction, DSS submitted a “work order” to

3 notify Electronic Data Systems (EDS) (which administers the Case Management, Information and

4 Payrolling System (CMIPS) program), requesting that it change the system to reflect the pre-July

5 1st wage levels for the 12 counties which rates would change. Carroll Decl. ¶ 6 . EDS informed 6 DSS that it would take until June23rd to process all the changes.4 Given Fresno County’s most

7 recent request, DSS has included that county in its work order to EDS and that rate change will be

8 effective July 23rd with the others. Santa Barbara County has notified DSS that it is not yet clear

9 whether it file a Rate Change Request based a loss of realignment funding. Carroll Decl. ¶ 10 .

10

Since the change to pre-July 1st wage levels could not take effect in CMIPS until June 23rd,

11 that left the issue of how to pay providers the pre-July 1st level of wages for the July 1-15 pay

12 period. Counties are responsible for making supplemental payments, DSS notified them in the

13 July 14th letter how to make these payments. Thereafter, on July 15 and 16, DSS heard from the

14 Senior Policy Analyst of the County Welfare Directors’ Association (CWDA) and individual

15 counties that counties were concerned about the additional workload associated with making

16 these retroactive payments and asking why the change could not be done automatically through

17 CMIPS. Carroll Decl. ¶ 8. In fact, a change of this magnitude has never been done by EDS and

18 there is no mechanism to effectuate a change to wage levels mid-month. Petty Decl. ¶ 7. In other

19 words, State defendants cannot automatically –plaintiffs seem to think—make this change

20 retroactively to July 1st. Indeed, section 12306.1(b) specifically provides that any change to

21 wages will take affect by the first of the following month precisely because of this limitation in

22 CMIPS. Thus, in order to pay providers pre-July 1st wages, counties must manually make the

23 change.

24

After hearing from CDWA and some counties, on July 16, DSS contacted EDS and

25 requested that counties have access to the wage change function in CMIPS so that counties could

26

3 Notably, plaintiffs do not complain that DSS acceded to Contra Costa’s request to pay

wages and benefits above the pre-July 1st levels. Apparently, it’s permissible for DSS to grant a 27 county’s request as long as it works in plaintiffs’ favor.
4 There are approximately 76,000 providers in these counties. 28

3

STATE DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MOTION FOR CIVIL CONTEMPT SANCTIONS AND A FURTHER MORE SPECIFIC INJUNCTION (CV 09-2306 CW)

Case4:09-cv-02306-CW Document195 Filed07/20/09 Page5 of 10

1 change the level of wages as they processed a provider’s timesheet for the July 1-15 pay period.

2 In other words, if counties make this change as they process this timesheet, the provider will

3 receive his/her pay warrant, reflecting pre-July 1st levels. If a county does not opt to change the

4 rate when it processes the timesheet, then it will require the county to process a supplemental

5 payment to make up the difference between the pre-July 1st rate and the rate set forth in its

6 approved Rate Change Request. Counties need only make the change to the wage change

7 function until July 23rd when CMIPS will reflect the pre-July 1st level of wages.

8

This is a complicated payments system which begins with providers submitting their

9 timesheets to counties and counties processing those timesheets. DSS’s role again is a limited

10 one—ensuring the counties have submitted valid and complete timesheets and then transferring

11 the information to EDS. Carroll Decl. ¶ 9 . Based on past experience, approximately 50% of

12 providers will submit their timesheets prior to July 23rd before the rate change is entered in

13 CMIPS and the pre-July 1st wage level will be automatically calculated. Carroll Decl. 9. Thus,

14 counties will not need to make this change manually for all providers. Indeed, approximately 25

15 percent of providers wait more than 60 days before submitting their timesheets. Id.

16

ARGUMENT

17

Plaintiffs once again have failed to meet their burden of establishing that State defendants

18 have “violated a specific and definite order” of this court by “clear and convincing evidence.” In

19 re Dual Deck Video Cassette Recorder Antitrust Litigation, 10 F.3d 693, 695 (9th Cir. 1993). In

20 fact, State defendants have complied with the Amended Preliminary Injunction. It is only

21 because the plaintiffs delayed for over two months in bringing this suit and do not understand

22 how the provider payment system works, that they are back before this court asking for a “further

23 more specific injunction.” At this point, plaintiffs are now asking this court to micromanage how

24 the counties implement and administer the payment systems. However, counties are not parties to

25 this action (with the lone exception of Fresno County) and there is no mechanism by which State

26 defendants can now take over the functions performed by counties. See MMP 30-769.252.

27

To the extent the plaintiffs still believe that the July paychecks issue should be resolved

28 more quickly in certain counties, they must join those counties as necessary parties. See Fed. R. 4
STATE DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MOTION FOR CIVIL CONTEMPT SANCTIONS AND A FURTHER MORE SPECIFIC INJUNCTION (CV 09-2306 CW)

Case4:09-cv-02306-CW Document195 Filed07/20/09 Page6 of 10

1 Civ. P. 19(a)(1)(A) (“[counties] must be joined as [parties] if in [the counties’] absence, the court

2 cannot accord complete relief among existing parties”). And if the plaintiffs refuse to join the

3 offending counties, the court must do so if it agrees those counties are necessary to accord

4 complete relief to the plaintiffs. See Fed. R. Civ. P. 19(a)(2) (“If [the counties have] not been

5 joined as required, the court must order that the [counties] be made [parties].”); see also Fed. R.

6 Civ. P. 21 (“On motion or on its own, the court may at any time, on just terms, add or drop a

7 party.”). The counties — not the State defendants — control when and how IHSS providers’ time

8 sheets are processed, and they decide when and how supplemental paychecks will be issued. If

9 the plaintiffs or this court believe these county-controlled functions should be executed in a more

10 efficient way, the offending counties must be joined to this lawsuit. See Fed. R. Civ. P.

11 19(a)(1)(A); 19(a)(2); 21.

12

The bottom line is this: State defendants have, and will continue, to comply with this

13 court’s orders. However, they simply must have the time to do it: Less than 24 hours was simply

14 not enough time to address all the issues raised by the Amended Preliminary Injunction. Indeed,

15 within 48 hours, State defendants had identified a method by which counties could immediately 16 implement the change to pre-July 1st wage levels and implemented it.5 In addition, under

17 California Labor Code section 204(a), providers are required to be paid within 10 days of

18 submitting their timesheets, and they will be. The only issue remaining is whether counties will

19 manually change the wage rate function in CMIPS before the changes are automated on July 23rd.

20 Again, this is entirely up to the counties.

21

Thus, Plaintiffs’ charge that State defendants are “exploit[ing] every possible loophole and

22 evad[ing] even clear mandates” is not only specious, it is inaccurate. Had plaintiffs and this court

23 provided State defendants with even one more day to implement the Amended Preliminary

24 Injunction, plaintiffs would not have had any basis whatsoever to ask this court for further more

25

5 Plaintiffs’ counsel refers to this process in her declaration which was presumably

prepared as DSS staff was notifying the counties that it had received permission for counties to

26 have access to the wage change function in CMIPS. (See Leyton Decl. ¶ 18.) Just because

plaintiffs’ counsel was unaware that DSS was continuing to try to resolve the issues raised by the

27 counties does not constitute evidence that State defendants are not complying with this court’s

Amended Preliminary Injunction.

28

5

STATE DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MOTION FOR CIVIL CONTEMPT SANCTIONS AND A FURTHER MORE SPECIFIC INJUNCTION (CV 09-2306 CW)

Case4:09-cv-02306-CW Document195 Filed07/20/09 Page7 of 10

1 specific relief or civil contempt sanctions. Indeed, they have no grounds now. This motion

2 should be denied in its entirety.

3 Dated: July 20, 2009 4 5 6 7 8
SF2009403964
9 40356518.doc 10

Respectfully Submitted,

EDMUND G. BROWN JR. Attorney General of California

/S/ SUSAN M. CARSON

.

SUSAN M. CARSON

Supervising Deputy Attorney General

Attorneys for State Defendants

11

12

13

14

15

16

17

18

19

20

21

22

23

24

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27

28 6
STATE DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MOTION FOR CIVIL CONTEMPT SANCTIONS AND A FURTHER MORE SPECIFIC INJUNCTION (CV 09-2306 CW)

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 Case4:09-cv-02306-CW Document203 Filed07/24/09 Page1 of 8

United States District Court For the Northern District of California

1

2

3

4

5 IN THE UNITED STATES DISTRICT COURT
6

7

FOR THE NORTHERN DISTRICT OF CALIFORNIA

8

9 MIKESHA MARTINEZ, et al.,

10

Plaintiffs,

11

v.

No. C 09-02306 CW
ORDER FURTHER CLARIFYING INJUNCTION

12 ARNOLD SCHWARZENEGGER, et al.,

13

Defendants.

/

14

15

On June 26, 2009, the Court enjoined and restrained Defendants

16 from implementing California Welfare and Institutions Code

17 § 12306.1(d)(6) without first conducting the analysis required by

18 42 U.S.C. § 1396a(a)(30)(A), as described in Orthopaedic Hospital

19 v. Belshe, 103 F.3d 1941, 1943 (9th Cir. 1997). In response to

20 Plaintiffs’ motion for civil contempt sanctions, or in the

21 alternative, for a more specific injunction, the Court issued an

22 order clarifying the injunction. The Court ordered that “State

23 Defendants shall, by the close of business on July 14, 2009,

24 rescind the State’s approval of all county rate reduction requests

25 which were submitted after February 20, 2009, to be effective July

26 1, 2009, and reinstate the State’s approval of the pre-July 1

27 rates.” Amd. Prelim. Inj. at 1. The Court also stated, “The State

28 may notify the counties that they may submit new Rate Change

Case4:09-cv-02306-CW Document203 Filed07/24/09 Page2 of 8

United States District Court For the Northern District of California

1 Requests if they wish to pursue a rate change for reasons other

2 than the passage of § 12306.1(d)(6).” Order Clarifying Inj. at 6.

3 With respect to Fresno County, the Court noted,

4

It is not clear from the papers submitted by the parties

whether Fresno County submitted one Rate Change Request with

5

a second reason for the request other than the passage of

§ 12306.1(d)(6) or if it submitted two requests. If it

6

submitted only one request, it must submit a separate

request based on a reason other than § 12306.1(d)(6) if it

7

wishes to pursue a rate reduction.

8 Id. at 6 n.4.

9

Although the order clarifying the injunction specifically

10 instructed State Defendants to “rescind the State’s approval of all

11 county rate reduction requests which were submitted after February

12 20, 2009,” (emphasis added) California Department of Social

13 Services (CDSS) official Eileen Carroll instead contacted several

14 counties to see if they wanted to revert to the pre-July 1, 2009

15 wage. Officials of Fresno County and Santa Barbara County

16 indicated that they did not want return to the pre-July 1 wage

17 because they claim a separate and independent reason for their rate

18 reduction. Fresno County officials assert that it had filed a

19 separate Rate Change Request on June 24, giving a separate and

20 independent ground for its rate reduction; and Santa Barbara County

21 officials subsequently submitted a similar Rate Change Request on

22 July 21.1 The State did not rescind its approval of Fresno

23 County’s and Santa Barbara County’s rate reduction request.

24

Carroll also told at least one In-Home Support Services (IHSS)

25

26

1The parties acknowledge that Contra Costa County has

indicated that, instead of reverting to the pre-July 1 wage rate, 27 it intends to implement its more recent rate request, which seeks

to implement wages above the pre-July 1 level. Plaintiffs do not 28 oppose this decision.

2

Case4:09-cv-02306-CW Document203 Filed07/24/09 Page3 of 8

United States District Court For the Northern District of California

1 Public Authority that if State Defendants prevailed in the instant

2 lawsuit and § 12301.6(d)(d) is eventually implemented, counties

3 would be responsible for the state contribution above $9.50

4 retroactive to July 1, 2009. Arkush Supp. Decl. ¶ 2. The Court

5 has made no such ruling.

6

On July 14, 2009, State Defendants issued a notice to all

7 counties informing them that the State would not begin paying the

8 pre-July 1 rates until July 23. State Defendants claim that the

9 Department of Social Services could not change the levels of wages

10 and benefits to be paid to IHSS providers in its Case Management,

11 Information and Payrolling System (CMIPS) until July 23. By that

12 date, the CMIPS system would be reprogrammed. Even after July 23,

13 State Defendants will not pay the pre-July 1 levels of wages and

14 benefits retroactively to July 1 until the counties submit a

15 supplemental pay warrant. State Defendants claim, “Under DSS

16 regulations counties are required to process all supplemental

17 payments.”2 Letter from State Defendants to Judge Wilken Re

18 Complying with Amended Preliminary Injunction. In order to submit

19 a supplemental pay warrant, according to State Defendants, counties

20 must “complete a ‘spec transaction’” that will take “take 20-25

21 minutes per case.”3 All-County Welfare Director’s Letter at 3.

22

23

2Although State Defendants do not cite any particular

regulations for this requirement, it appears that they are

24 referring to Social Services Standard 30-769.252, which provides,

“The county shall initiate emergency/supplemental checks” in

25 certain situations, including “[p]ayments for other unusual

situations not provided for by the regular payrolling process.”

26 Nothing in this standard prohibits the State from initiating a

supplemental payment on its own.

27

3According to the State, each county must manually calculate

28

(continued...)

3

Case4:09-cv-02306-CW Document203 Filed07/24/09 Page4 of 8

United States District Court For the Northern District of California

1

Plaintiffs have now filed another motion for civil contempt

2 sanctions and for a further, more specific preliminary injunction.

3 Defendants oppose the motion. Having considered the papers filed

4 by the parties, the Court further clarifies its injunction and

5 takes Plaintiffs’ motion for contempt sanctions under submission.

6

DISCUSSION

7

Under the plain terms of the Court’s amended preliminary

8 injunction, State Defendants were ordered to, “by close of business

9 on July 14, 2009, rescind the State’s approval of all county rate

10 reduction requests which were submitted after February 20, 2009, to

11 be effective July 1, 2009, and reinstate the State’s approval of

12 the pre-July 1 rates.” Amd. Prelim. Inj. at 2. The Court was

13 specific in its order because, up until that point, State

14 Defendants’ manner of compliance with the original preliminary

15 injunction did not carry out the intent of the order. Thus, when

16 State Defendants refused to rescind their approval of Santa

17 Barbara’s rate reduction request submitted during the specified

18 time period, they were in violation of the Court’s amended

19 injunction.

20

The facts related to Fresno County’s Rate Change Request are

21 more complicated. On April 30, 2009, Fresno County had submitted a

22 Rate Change Request packet to the CDSS. Included in the packet was

23 form SOC 449, entitled “In-Home Supportive Services Program Public

24

25

3(...continued)

the difference between the reduced wage and the reinstated wage, 26 multiply that figure by the number of hours worked at the reduced

wage, and enter that amount into the CMIPS. Plaintiffs estimate 27 that this process would take a small county such as San Benito,

which only has 420 IHSS consumers, up to ten working days to 28 complete.

4

Case4:09-cv-02306-CW Document203 Filed07/24/09 Page5 of 8

United States District Court For the Northern District of California

1 Authority/Non-Profit Consortium Rate.” Also in the packet, Fresno

2 County included the April 28, 2009 Board of Supervisors’ Agenda

3 Item, in which the Board stated, “Based on the State maximum

4 participation decrease in wages and benefits and the contingency

5 language in the Memorandum of Understanding, the rate packet will

6 insure that the provider wage decrease from $10.25 to $9.50 and

7 benefit decrease from $.85 to $.60 per hour becomes effective July

8 1, 2009.” The Memorandum of Understanding provides specific

9 contingencies which would permit Fresno to pay lower wages and

10 benefits to IHSS providers.

11

On June 16, 2009, the Board had approved an agenda item for a

12 $1.00 decrease in wages and benefits based on a purported budget

13 realignment shortfall. The agenda item stated that there would be

14 “no increase in net County cost associated with this action as the

15 recommendation mirrors the recommendation adopted by the Governing

16 Board on April 28, 2009.” Leyton Second Supp. Decl., Ex. C (June

17 16 Agenda Item at 1). The agenda item further stated,

18

The $1.00 recommended reduction before you today is specific

to the Realignment deficit, and it is recommended that the

19

reduction be divided between wages ($0.75) and benefits

($0.25) to be consistent with the State law change and the

20

Public Authority Rate packet approved by the Governing Board

on April 28, 2009. The approval of the recommended action

21

would add a secondary reason to the rate packet submitted to

the State, but is not an additional wage/benefits reduction.

22

Id. at 2.

23

On June 24, 2009, Fresno County submitted a letter to CDSS

24

stating,

25

Enclosed is the approved Board agenda item supporting the

26

Fresno County submission of State Form SOC 449 sent to you on

April 30, 2009. Please note that there are no changes that

27

will be made to the submitted SOC 449 form. Independent of

the State law changes, on June 16, 2009, the Fresno County

28

Board of Supervisors, sitting as the In-Home Supportive

5

Case4:09-cv-02306-CW Document203 Filed07/24/09 Page6 of 8

United States District Court For the Northern District of California

1

Services Public Authority Governing Board (Governing Board),

voted to decrease wages and benefits due to loss of

2

realignment funding.

3 Form SOC 449 is a budget narrative and does not include any

4 information regarding the reasons for seeking approval of a rate

5 change. Thus, a second reason for reducing wages did not affect

6 the budget narrative provided in SOC 449.

7

As noted above, the Court ordered State Defendants to notify

8 counties that they may submit new Rate Change Requests if they

9 wished to pursue a rate change for reasons other than the passage

10 of § 12306.1(d)(6). The Court noted that if Fresno County had

11 submitted only a single previous Rate Change Request, with a second

12 reason for the request other than the passage of § 12306.1(d)(6),

13 and it wished to pursue a rate reduction, it would have to submit a

14 separate request based on a reason other than § 12306.1(d)(6). The

15 Court concludes that the June 24, 2009 letter merely expresses a

16 second reason for its initial rate change request submitted on

17 April 30, 2009. The letter does not constitute a second rate

18 change request.

19

Moreover, at the time the Fresno County Board of Supervisors

20 voted to submit the realignment shortfall as a separate reason for

21 the April 30, 2009 Rate Change Request, § 12306.1(d)(6) was good

22 law and scheduled to go into effect on July 1, 2009. Thus, Fresno

23 County either had to reduce its rate or make up the shortfall that

24 the cut in the State’s contribution would have created. Many

25 presentations were made to the Board about the fiscal impact of the

26 proposed rate cut, and these presentations presumed that

27 § 12306.1(d)(6) would be implemented on July 1, 2009. The

28 possibility that § 12306.1(d)(6) could be enjoined was not

6

Case4:09-cv-02306-CW Document203 Filed07/24/09 Page7 of 8

United States District Court For the Northern District of California

1 discussed at the Board meeting. Therefore, unless Fresno County

2 submits a new Rate Change Request solely based on a reason other

3 than the passage of § 12306.1(d)(6), it will not be clear whether

4 the Fresno County Board of Supervisors would vote to seek a rate

5 reduction knowing that § 12306.1(d)(6) has been preliminarily

6 enjoined.

7

Thus, to comply with the plain language of the Court’s order

8 clarifying the injunction, the State must rescind its prior

9 approval of Santa Barbara and Fresno County’s Rate Change Requests.

10 To avoid misunderstandings, these rescissions must be in writing

11 and be sent by overnight delivery within one business day from the

12 date of this order. At the same time, a copy must be submitted to

13 Plaintiffs’ counsel and to the Court, along with a declaration

14 under penalty of perjury verifying that it was sent. Before the

15 State may approve a rate reduction for Santa Barbara or Fresno

16 County, it must receive from the County a new and separate written

17 request conforming to all the requirements of law and regulation,

18 based on a reason other than § 12306.1(d)(6). A copy of this

19 request shall be sent to the Court and to Plaintiffs’ counsel. The

20 State may then approve the request in writing, if it accords with

21 law and regulation.

22

The State must correct the underpayments made to providers for

23 the July 1-15 pay period. The State has cited no regulation

24 preventing it from preparing supplemental pay warrants. Counties

25 should not be burdened with correcting the mistakes caused by State

26 Defendants’ violation of the federal Medicaid statute and failure

27 to implement timely the Court’s orders.

28

Therefore, State Defendants must pay IHSS providers, in all

7

Case4:09-cv-02306-CW Document203 Filed07/24/09 Page8 of 8

United States District Court For the Northern District of California

1 counties where the State has rescinded its approval of Rate Change

2 Requests that proposed rate decreases to take effect July 1, 2009,

3 at the correct, pre-July 1 rates in their regular paychecks for the

4 pay period ending July 31, 2009. State Defendants must also pay

5 all IHSS providers the correct amount owed for the pay period

6 ending July 15, 2009 in a check or checks that issue no later than

7 ten days after the provider submits his or her timesheet for that

8 pay period, or seven business days from the date of this order,

9 whichever is later. State Defendants shall file a declaration

10 eight business days from the date of this order, verifying that

11 they have done so or showing cause why they have not. In any

12 county in which the State has approved an increase from the pre-

13 July 1 rate, State Defendants shall pay such increased rate.

14

Plaintiffs’ motion for civil contempt sanctions and attorneys’

15 fees is taken under submission.

16

IT IS SO ORDERED.

17 Dated: 7/24/09
18
19

CLAUDIA WILKEN United States District Judge

20

21

22

23

24

25

26

27

28

8

 
 Case4:09-cv-02306-CW Document207 Filed08/06/09 Page1 of 19

1 STEPHEN P. BERZON (SBN 46540) SCOTT A. KRONLAND (SBN 171693)
2 STACEY M. LEYTON (SBN 203827) PEDER J. THOREEN (SBN 217081)
3 ANNE N. ARKUSH (SBN 254985) Altshuler Berzon LLP
4 177 Post Street, Suite 300 San Francisco, California 94108
5 Telephone: (415) 421-7151 Facsimile: (415) 362-8064
6 sberzon@altshulerberzon.com skronland@altshulerberzon.com
7 sleyton@altshulerberzon.com pthoreen@altshulerberzon.com
8 aarkush@altshulerberzon.com

9 Attorneys for Plaintiffs

10

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

11

SAN FRANCISCO/OAKLAND DIVISION

12 MIKESHA MARTINEZ, by and through her

) Case No. C 09-02306 CW

husband and next friend Carlos Martinez, LYDIA )

13 DOMINGUEZ, ALEX BROWN, by and through )

his mother and next friend Lisa Brown, DONNA ) CLASS ACTION

14 BROWN, CHLOE LIPTON, by and through her )

conservator and next friend Julie Weissman-

) PLAINTIFFS’ OPPOSITION TO

15 Steinbaugh, HERBERT M. MEYER, LESLIE ) FRESNO DEFENDANTS’ MOTIONS TO

GORDON, CHARLENE AYERS, WILLIE

) DISMISS PLAINTIFFS’ CLASS ACTION

16 BEATRICE SHEPPARD, and ANDY

) COMPLAINT PURSUANT TO FRCP

MARTINEZ, on behalf of themselves and a class ) 12(b)(1), (6) AND TO SEVER CLAIMS

17 of those similarly situated; SERVICE

)

EMPLOYEES INTERNATIONAL UNION

)

18 UNITED HEALTHCARE WORKERS WEST; ) Date: August 27, 2009

SERVICE EMPLOYEES INTERNATIONAL ) Time: 2:00 p.m.

19 UNION UNITED LONG-TERM CARE

) Place: Courtroom 2, 4th floor,

WORKERS; SERVICE EMPLOYEES

)

Oakland Federal Courthouse

20 INTERNATIONAL UNION LOCAL 521; and )

1301 Clay Street

SERVICE EMPLOYEES INTERNATIONAL )

Oakland, CA 94612

21 UNION CALIFORNIA STATE COUNCIL,

)

)

22

Plaintiffs,

)

)

23

v.

)

)

24 ARNOLD SCHWARZENEGGER, Governor of )

the State of California; JOHN A. WAGNER, )

25 Director of the California Department of Social )

Services; DAVID MAXWELL-JOLLY, Director )

26 of the California Department of Health Care

)

Services; JOHN CHIANG, California State

)

27 Controller; FRESNO COUNTY; and FRESNO )

COUNTY IN-HOME SUPPORTIVE SERVICES )

28 PUBLIC AUTHORITY,

)

)

Defendants.

)

)

Case4:09-cv-02306-CW Document207 Filed08/06/09 Page2 of 19

1

TABLE OF CONTENTS 2
BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 3
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 4
I. Plaintiffs Have Standing To Bring Claims Against Fresno Defendants . . . . . . . . . . . . . . . . . . . . 5 5
A. Standard . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 6
B. Plaintiffs’ allegations establish injury and causation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 7
C. Fresno Defendants’ redressability argument should be rejected . . . . . . . . . . . . . . . . . . . . 8 8
II. Plaintiffs Have Stated A Cognizable Claim Against Fresno Defendants . . . . . . . . . . . . . . . . . . 10 9

A. Standard . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 10

B. Plaintiffs have stated cognizable Olmstead claims against Fresno

11

Defendants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

12 III. The Claims Against Fresno Defendants Should Not Be Severed . . . . . . . . . . . . . . . . . . . . . . . . 13

13 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

i

Pls. Opp. to Fresno Defs. Motions to Dismiss, Sever; Case No. C 09-02306 CW

Case4:09-cv-02306-CW Document207 Filed08/06/09 Page3 of 19

1

TABLE OF AUTHORITIES

2

FEDERAL CASES

Ashcroft v. Iqbal,

3

129 S.Ct. 1937 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 12

4 Ball v. Rodgers,

No. 00-CV-67, 2009 WL 1395423 (D. Ariz. Apr. 24, 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

5

Bell Atlantic Corp. v. Twombly,

6

550 U.S. 544 (2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

7 Bras v. Cal. Public Utilities Commission,

59 F.3d 869 (9th Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

8

Central Delta Water Agency v. United States,

9

306 F.3d 938 (9th Cir. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 6

10 Coleman v. Quaker Oats Co.,

232 F.3d 1271 (9th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

11

Colwell v. Department of Health & Human Services,

12

558 F.3d 1112 (9th Cir. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

13 Crabtree v. Goetz,

No. 3:08-CV-939, 2008 WL 5330506 (M.D. Tenn. Dec. 19, 2008) . . . . . . . . . . . . . . . . . . . . . . 11

14

Decker Coal Co. v. Commonwealth Edison Co.,

15

805 F.2d 834 (9th Cir. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

16 Fisher v. Okla. Health Care Authority,

335 F.3d 1175 (10th Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 12

17

Friends of the Earth, Inc. v. Laidlaw Environmental Services, Inc.,

18

528 U.S.167 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

19 Johnson v. Riverside Healthcare System,

534 F.3d 1116 (9th Cir. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

20

Lujan v. Defenders of Wildlife,

21

504 U.S. 555 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

22 Monolithic Power System, Inc. v. O2 Micro International Ltd.,

Nos. 04-CV-2000, 06-CV-2929, 2006 WL 2846436 (N.D. Cal. Oct. 3, 2006) . . . . . . . . . . . . . 14

23

Nelson v. Milwaukee County,

24

No. 04-CV-193, 2006 WL 290510 (E.D. Wisc. Feb. 7, 2006) . . . . . . . . . . . . . . . . . . . . . . . 10, 11

25 Olmstead v. L.C. ex rel. Zimring,

527 U.S. 581 (1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 4, 11, 12

26

Pritkin v. Department of Energy,

27

254 F.3d 791 (9th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9

28

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1 Raich v. Gonzales,

500 F.3d 850 (9th Cir. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

2

San Diego County Gun Rights Committee v. Reno,

3

98 F.3d 1121 (9th Cir. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 8, 9

4 Townsend v. Quasim,

328 F.3d 511 (9th Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

5

Warren v. Fox Family Worldwide, Inc.,

6

328 F.3d 1139 (9th Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 6, 8

7 Weinreich v. Los Angeles County Metropolitan Transportation Authority, 114 F.3d 976 (9th Cir. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
8
FEDERAL STATUTES 9
29 U.S.C. §794 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 10
42 U.S.C. §12132 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 11
42 U.S.C. §1396 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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1

Plaintiffs, In-Home Supportive Services (“IHSS”) consumers and unions representing IHSS

2 providers, filed suit against various state officials (“State Defendants”) and against Fresno County and

3 Fresno County In-Home Supportive Services Public Authority (collectively, “Fresno Defendants”),

4 seeking to enjoin reductions in providers’ wages and benefits. Fresno Defendants now move to dismiss

5 the claims against them, arguing that Plaintiffs lack standing and fail to state a claim for relief.

6 Plaintiffs’ allegations are more than sufficient to satisfy the requisite standards at this phase of the

7 litigation. Moreover, even though Plaintiffs need not rely on extrinsic evidence to rebut Fresno

8 Defendants’ challenges, Plaintiffs have already submitted ample evidence supporting the relevant

9 allegations in connection with their preliminary injunction motion. There is no basis to dismiss the

10 claims against Fresno Defendants.

11

Fresno Defendants further move to sever the claims asserted against them, even though Plaintiffs

12 assert the identical legal claims against State Defendants. Severance would needlessly waste judicial

13 resources by requiring two courts to consider and decide the same questions of law and fact. It would

14 also severely burden Plaintiffs, who would be forced to litigate these questions in two forums. Any

15 inconvenience to Fresno Defendants from maintaining a single lawsuit does not outweigh these

16 countervailing factors. Fresno Defendants’ motions should be denied.

17

BACKGROUND1

18

On May 26, 2009, Plaintiffs filed a complaint challenging the reduction of wages and benefits for

19 IHSS providers. Dkt. #1. The complaint asserts four claims for relief. The first and second claims

20 challenge a state law – Welfare and Institutions Code §12306.1(d)(6) (“Section 12306.1(d)(6)”) – as

21 violative of the federal Medicaid Act. Cpt. (Dkt. #1) ¶¶80-91. These claims are asserted only against

22 State Defendants. The third and fourth claims (collectively, the “Olmstead claims”) assert challenges

23 under, respectively, the Americans with Disabilities Act (“ADA”), 42 U.S.C. §12132, and the

24 Rehabilitation Act, 29 U.S.C. §794(a), to both Section 12306.1(d)(6) and the conduct of Fresno

25 Defendants in seeking to reduce the wages and benefits of IHSS providers in Fresno County. Id. ¶¶92-

26 109. The Olmstead claims are asserted by the IHSS consumer plaintiffs against both State Defendants

27

28

1 As the Court is already familiar with many of the pertinent facts, Plaintiffs set forth only those

facts relevant to the instant motions.

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1 and Fresno Defendants. The essence of the Olmstead claims is that reducing the wages and benefits of

2 IHSS providers will create a shortage of providers, and that the resulting inability to find providers will

3 force some IHSS consumers – unable to safely remain at home without critical IHSS services – to enter

4 nursing homes or other residential institutions. This will violate the anti-discrimination provisions of the

5 ADA and the Rehabilitation Act, because the “[u]njustified isolation [of people with disabilities] . . . is

6 properly regarded as discrimination based on disability.” Olmstead v. L.C. ex rel. Zimring, 527 U.S.

7 581, 597 (1999).

8

The complaint alleges that, after the enactment and implementation of Section 12306.1(d)(6),

9 Fresno Defendants approved a notice to the California Department of Social Services (“CDSS”) “that

10 Fresno County will reduce the wages and benefits of IHSS providers by $1.00 per hour – wages will be

11 reduced from $10.25 per hour to $9.50 per hour, and benefits will be reduced from $.85 per hour to $.60

12 per hour – effective July 1, 2009.” Id. ¶51. The complaint further alleges the harm that would befall

13 IHSS consumers were the wage and benefit reductions to take effect: Providers would leave IHSS

14 employment to seek higher paying jobs, many consumers would be unable to fill the resulting vacancies,

15 and some consumers would be forced to enter nursing homes as a result. Id. ¶¶58-59, 61. The

16 complaint seeks to bring the claims against Fresno Defendants on behalf of a class consisting of all IHSS

17 consumers residing in Fresno County. Id. ¶¶71-79.

18

On June 4, 2009, Plaintiffs filed a motion for a preliminary injunction based on all four claims

19 for relief. Dkt. #5. In support of this motion, Plaintiffs submitted evidence that providers – including

20 providers in Fresno County – would leave IHSS employment if their wages were reduced,2 and that

21 consumers – including consumers in Fresno County – face a significant threat of being unable to replace

22 these providers and, as a result, being forced into nursing homes or other residential institutions. See C.

23 Martinez Decl (Dkt. #33) ¶¶5-8 (if IHSS wages are reduced, providers will look for other work; given

24 consumer’s difficulty finding providers at current rate, consumer will likely be forced into institutional

25 care as a result); Peppars Decl. (Dkt. #38) ¶¶1, 5 (provider would look for other work if wages reduced);

26

27

2 Fresno Defendants’ assertion that the providers for the named Plaintiffs residing in Fresno

County are all related to the consumer they serve (Fr. Mot. to Dismiss 2:13-14) is incorrect: Mikesha

28 Martinez’s three providers are not related to her. C. Martinez Decl. (Dkt. #33) ¶4; C. Martinez Reply Decl. (Dkt. #116) ¶2.

2

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1 Austin Reply Decl. (Dkt. #111) ¶¶6-8 (consumer may be forced into nursing facility if wages reduced);

2 L. Brown Decl. (Dkt. #13) ¶¶11-12 (if provider’s wages cut, provider and consumer/son will lose

3 housing and consumer will be forced to enter residential facility); Howes Decl. (Dkt. #22) ¶78 (expert

4 analysis estimating that Fresno County wage reduction would result in 431 new provider vacancies that

5 will not be filled and 151 additional IHSS consumers placed in nursing facilities).3

6

Plaintiffs also submitted evidence that the existence of a provider registry maintained by Fresno

7 Defendants listing 450 active names does not mean that consumers will be able to find replacement

8 providers. Specifically, Plaintiffs submitted declarations demonstrating the inability of some consumers

9 to find registry providers, even at the current wage rate. See Austin Reply Decl. (Dkt. #111) ¶5 (registry

10 providers did not have the characteristics of car ownership and English language skills that they were

11 listed as having on the registry; many of the providers’ listed phone numbers were disconnected); C.

12 Martinez Reply Decl. (Dkt. #116) ¶¶3-5 (registry providers did not have characteristics of car ownership,

13 non-smoking status, or willingness to work nights that they were listed as having on the registry; for the

14 past two years consumer has been unable to find registry provider willing to work nights); Mesaris Reply

15 Decl. (Dkt. #117) ¶5 (registry providers did not return phone calls or were not interested in job after

16 hearing about physical requirements needed to care for consumer); see also Carroll Decl., Ex. G (Dkt.

17 #97-7) at 24 (2008 CDSS report documenting public authorities’ report of a “critical shortage” in

18 providers willing to serve consumers with difficult health conditions – including consumers “who

19 require multiple providers willing to work all shifts and weekends,” such as Plaintiff Mikesha Martinez

20 – despite the existence of registries). Plaintiffs also submitted evidence that Fresno County’s high

21 unemployment rate would not prevent provider vacancies. Howes Decl. (Dkt. #22) ¶78 (expert analysis,

22 taking Fresno County’s unemployment rate into account, estimated that Fresno County’s proposed wage

23 reduction would result in 431 new vacancies that would not be filled).

24

On June 26, this Court issued a written preliminary injunction enjoining Section 12306.1(d)(6),

25 holding that Plaintiffs demonstrated a likelihood of success on their first claim for relief, that the statute

26

27

28

3 Plaintiffs incorporate by reference all cited declarations filed in support of Plaintiffs’

preliminary injunction motion.

3

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1 violated the procedural requirements of the federal Medicaid Act. Dkt. #130. In an accompanying

2 order, this Court found that irreparable harm would result absent preliminary injunctive relief:

3

IHSS consumers will suffer immediate and irreparable harm unless the Court issues a

preliminary injunction. The wage reductions will cause many IHSS providers to leave

4

employment, which in turn will leave consumers without IHSS assistance. The

consumers’ quality of life and health-care will be greatly diminished, which will likely

5

cause great harm to disabled individuals. For instance, the declarations submitted by

Plaintiffs describe harms ranging from going hungry and dehydration, to falls and burns,

6

to an inability ever to leave the home. Institutionalizing individuals that can comfortably

survive in their home with the help of IHSS providers will cause Plaintiffs to suffer injury

7

to their mental and physical health, including a shortened life, and even death for some

Plaintiffs.

8

Order Granting Prelim. Inj. (Dkt. #131) 10:25-11:10 (citation and quotation marks omitted). The Court

9

declined to rule on whether Plaintiffs had established a likelihood of success on their second, third, or

10

fourth claims for relief. Id. 10:18-23.

11

In subsequent Orders clarifying the Preliminary Injunction, the Court explained that the

12

Preliminary Injunction obligated State Defendants to “rescind the State’s approval of all county rate

13

reduction requests which were submitted after February 20, 2009, to be effective July 1, 2009.”

14

Amended Prelim. Inj. (Dkt. #172) 6:1-3. Although Fresno Defendants had submitted a letter to CDSS

15

stating an additional reason for their requested rate reduction after their submission of a rate reduction

16

request based on Section 12306.1(d)(6), this Court held that the letter “merely expresses a second reason

17

for [Fresno’s] initial rate change request submitted on April 30, 2009,” and accordingly “does not

18

constitute a second rate change request.” Order Further Clarifying Inj. (Dkt. #203) 6:14-18. Thus, under

19

the terms of the injunction, “[b]efore the State may approve a rate reduction for . . . Fresno County, it

20

must receive from the County a new and separate written request conforming to all the requirements of

21

law and regulation, based on a reason other than § 12306.1(d)(6).” Id. 7:14-18. No such request has

22

been submitted to date.

23

Fresno Defendants now move to dismiss Plaintiffs’ claims for lack of standing and for failure to

24

state a claim. Dkt. #101. Fresno Defendants further move to sever the claims against Fresno

25

Defendants. Dkt. #106-1. Plaintiffs oppose both motions.

26

27

28

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1

ARGUMENT

2 I. Plaintiffs Have Standing To Bring Claims Against Fresno Defendants

3

A. Standard

4

To establish Article III standing, a plaintiff must establish injury in fact, causation, and

5 redressability. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). “[E]ach element [of the

6 standing inquiry] must be supported in the same way as any other matter on which the plaintiff bears the

7 burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the

8 litigation.” Id. at 561. Thus, “[a]t the pleading stage, general factual allegations of injury resulting from

9 the defendant’s conduct may suffice, for on a motion to dismiss we presume that general allegations

10 embrace those specific facts that are necessary to support the claim.” Id. (internal quotations marks

11 and citation omitted); accord Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1140 (9th Cir.

12 2003) (at the pleading stage of litigation, a plaintiff “need only show that the facts alleged, if proved,

13 would confer standing upon him”).

14

Fresno Defendants cite San Diego Gun Rights Committee v. Reno, 98 F.3d 1121 (9th Cir. 1996),

15 to support their assertion that Plaintiffs must meet “a higher, more stringent burden” for standing

16 purposes because they seek declaratory and injunctive relief. Fr. Mot. to Dismiss 9:17-19. But San

17 Diego Gun Rights merely states the obvious proposition that a plaintiff seeking such relief cannot rely

18 solely upon a past injury; instead, she must demonstrate a likelihood of future injury to warrant the

19 requested relief. Id. at 1126; see also Bras v. Cal. Public Utils. Comm’n, 59 F.3d 869, 873 (9th Cir.

20 1995) (“Because Bras seeks declaratory and injunctive relief only, it is insufficient for him to

21 demonstrate that he was injured in the past . . . .”).

22

Accordingly, although the requested relief may impact the type of injury the plaintiff must

23 demonstrate, it does not alter the requisite burden to establish standing. Any plaintiff must establish an

24 injury that is “concrete and particularized” and “actual or imminent.” Lujan, 504 U.S. at 560. To

25 establish a likelihood of future injury, “a credible threat of harm is sufficient.” Central Delta Water

26 Agency v. United States, 306 F.3d 938, 950 (9th Cir. 2002). As noted above, Plaintiffs here need only

27 show that the allegations in the complaint, if true, establish this credible threat. Warren, 328 F.3d at

28 1140.

5

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1

B. Plaintiffs’ allegations establish injury and causation

2

Fresno Defendants first argue that Plaintiffs’ allegations on their face fail to establish injury and

3 causation. Fr. Mot. to Dismiss 8:3-10:6. They begin by noting that the complaint lacks any allegations

4 that a consumer Plaintiff “ha[s] suffered an actual injury at this point in time.” Fr. Mot. to Dismiss 9:1-

5 3. Of course, there are no such allegations because the challenged action has not yet taken place.

6 Indeed, Plaintiffs sought – and the Court granted – a preliminary injunction to prevent the injury before

7 it took place. Article III standing requirements do not require plaintiffs to wait until they have been

8 injured before bringing suit. See Raich v. Gonzales, 500 F.3d 850, 857 (9th Cir. 2007) (holding plaintiff

9 satisfied standing requirements by demonstrating threatened injury, even though she “has not suffered

10 any past injury”); Central Delta Water Agency, 306 F.3d at 950 (“a credible threat of harm is sufficient

11 to constitute actual injury for standing purposes, whether or not a statutory violation has occurred”).

12

Nor are Plaintiffs’ allegations of future injury simply “wild prognostications,” as Fresno

13 Defendants contend. Fr. Mot. to Dismiss 9:3-5. To the contrary, the complaint specifically alleges how

14 the consumer Plaintiffs will be injured if wages are reduced:

15

In the counties in which wages will be reduced [including Fresno County], many IHSS providers

will be forced to leave IHSS employment to seek higher paying jobs. Not all the vacancies

16

created by IHSS providers leaving their employment will be filled with new IHSS providers.

17

As a result of these vacancies, many IHSS consumers in these counties will be unable to find

providers for any or all of their authorized IHSS hours. These consumers will either have to

18

make do with reduced or eliminated IHSS services, or be forced to enter nursing homes or other

residential institutions.

19

Cpt. (Dkt. #1) ¶¶58-59.

20

Because Fresno Defendants here make a facial challenge to Plaintiffs’ standing, Plaintiffs “need

21

only show that the facts alleged, if proved, would confer standing upon [them].” Warren, 328 F.3d at

22

1140. Accepting the allegations as true, Plaintiffs have clearly demonstrated that they face an imminent

23

threat of injury – namely, unjustified institutionalization – that would be caused by Fresno Defendants’

24

reduction of IHSS provider wages and benefits.

25

Moreover, even though the allegations of the complaint alone are sufficient to establish standing

26

at this stage of the litigation, Plaintiffs have in fact provided ample evidence, in the context of the

27

preliminary injunction motion, to support these allegations. See supra at 2:19-3:5. Plaintiffs submitted

28

6

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1 declarations from providers in Fresno County stating that they would look for other work if their wages

2 were reduced. Peppars Decl. (Dkt. #38) ¶5; see also C. Martinez Decl (Dkt. #33) ¶6. Given the

3 difficulty that consumers have had finding providers at the current wage rate, their concerns about

4 finding providers at a reduced rate are hardly speculative. C. Martinez Decl (Dkt. #33) ¶¶5, 7. And

5 there can be no question that some consumers’ level of need is so high that they would be forced to enter

6 institutional settings if they were unable to replace their current providers. C. Martinez Decl. (Dkt. #33)

7 ¶¶2, 8 (consumer with severe brain injuries requires round-the-clock care); Austin Reply Decl. (Dkt.

8 #111) ¶¶2, 5, 8 (consumer with severe muscular dystrophy needs assistance getting out of bed; when a

9 provider failed to show up one morning he “was stuck in bed all day”). Plaintiffs’ expert’s analysis

10 provides further support for the allegations. Howes Decl. (Dkt. #22) ¶78.

11

Fresno Defendants argue that Plaintiffs’ evidence is insufficient because Fresno County

12 maintains a provider registry and currently has a higher unemployment rate than many counties. Fr.

13 Mot. to Dismiss 9 n.2. But Plaintiffs’ evidence shows that the IHSS provider registry – even at the

14 current wage rate – has not ensured a consistent source of consumers, particularly for consumers with

15 difficult medical needs who are often at the greatest risk of institutionalization if unable to find suitable

16 providers. See supra at 3:6-20. Moreover, according to Fresno Defendants’ own evidence, over 40% of

17 Fresno County’s registry providers are already working 30 hours or more per week. S. Sanchez Decl.

18 (Dkt. #91) ¶5. Finally, Professor Howes’ analysis of the impact of the wage reduction in Fresno County

19 specifically took the county’s unemployment rate and wage ratio into account. Howes Decl. (Dkt. #22)

20 ¶78.

21

In sum, Plaintiffs have easily established a concrete, imminent threat of injury that would be

22 caused by the challenged conduct. Indeed, this Court has already rejected the argument that Plaintiffs’

23 allegations of injury are too speculative, finding that Plaintiffs demonstrated that “IHSS consumers will

24 suffer immediate and irreparable harm” if IHSS providers wages and benefits were reduced because

25 “wage reductions will cause many IHSS providers to leave employment, which in turn will leave

26 consumers without IHSS assistance. The consumers’ quality of life and health-care will be greatly

27 diminished, which will likely cause great harm to disabled individuals,” including institutionalization.

28 Order Granting Prelim. Inj. (Dkt. #131) 10:25-11:10.

7

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1

C. Fresno Defendants’ redressability argument should be rejected

2

Fresno Defendants’ final standing challenge is that the terms of Fresno Defendants’

3 memorandum of understanding (“MOU”) with the union representing IHSS providers permit Fresno

4 Defendants to reduce wages for reasons other than Section 12306.1(d)(6), and therefore Plaintiffs’ injury

5 cannot be redressed by the requested relief. This argument should be rejected.

6

As an initial matter, although a court may consider extrinsic evidence on a motion to dismiss for

7 lack of subject matter jurisdiction, Colwell v. Dep’t of Health & Human Servs., 558 F.3d 1112, 1121

8 (9th Cir. 2009), the only evidence relied upon by Fresno Defendants is the MOU. As discussed below,

9 the MOU is entirely irrelevant to Plaintiffs’ standing. And where, as here, “jurisdiction is intertwined

10 with the merits, [the court] must ‘assume the truth of the allegations in a complaint unless controverted

11 by undisputed facts in the record.’” Warren, 328 F.3d 1139 (quoting Roberts v. Corrothers, 812 F.2d

12 1173, 1177 (9th Cir. 1987)).

13

The MOU has no bearing on Plaintiffs’ standing because the reason for Fresno Defendants’

14 attempt to reduce IHSS wages is entirely irrelevant to Plaintiffs’ Olmstead claims. Plaintiffs’ claims

15 against Fresno Defendants do not hinge on the motive for Fresno Defendants’ wage reduction, but focus

16 instead on the impact. Cpt. (Dkt. #1) ¶96 (“[T]he reduction of wages and benefits for IHSS providers,

17 including in Fresno County, would violate 42 U.S.C. §12132 by creating a substantial risk that Plaintiffs

18 . . . will be unable to find IHSS providers and will, as a result, be forced to enter nursing homes or other

19 institutional facilities, despite their desire and ability to remain in their homes.”); see also id. ¶105. Any

20 rate reduction of sufficient magnitude would injure Plaintiffs as discussed above, and this injury would

21 be redressed by the relief sought by Plaintiffs: an order “enjoin[ing] the Fresno County Defendants from

22 taking any action to implement a wage and benefit reduction for Fresno County IHSS providers.” Cpt.

23 (Dkt. #1) at 22-23.4

24

Fresno Defendants’ citation to Pritkin v. Department of Energy, 254 F.3d 791 (9th Cir. 2001),

25 and San Diego County Gun Rights Committee v. Reno, 98 F.3d 1121 (9th Cir. 1996), Fr. Mot. to Dismiss

26 10:28-11:16, are inapposite. In both cases, specific conduct by an entity who was not a party to the

27

28

4 If the Court disagrees that Plaintiffs’ complaint states such a claim, Plaintiffs respectfully

request leave to amend their complaint accordingly.

8

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1 litigation would have been required to avoid the complained-of injury. Because the court lacked

2 authority to issue an order to the relevant entity, the plaintiffs’ claims could not be redressed by those

3 lawsuits. Pritkin, 254 F.3d at 801 (“Pritkin has failed to show how ordering [defendant] DOE to request

4 funding would lead to the tangible result of a Hanford medical monitoring program when only [non-

5 party] ATSDR has the power to actually initiate the program.”); San Diego Cty. Gun Rights, 98 F.3d at

6 1130 (“[I]t is third-party weapons dealers and manufacturers – not the government defendants – who

7 have raised the prices of assault weapons [thereby injuring plaintiffs].”). Here, Fresno Defendants do

8 not dispute that the relevant actors – State Defendants and Fresno Defendants – are parties to this

9 lawsuit.

10

Moreover, counsel’s reference to the theoretical possibility of a rate reduction for reasons other

11 than Section 12306.1(d)(6) cannot defeat standing. At the commencement of this lawsuit – when

12 standing is measured, Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 189 (2000)

13 – Fresno Defendants had submitted a single rate change request, based on Section 12306.1(d)(6). Fresno

14 Defendants have not submitted a separate rate change request based on any other reasons to date. See

15 Order Further Clarifying Inj. (Dkt. #203) 6:14-18 (Fresno’s “June 24, 2009 letter merely expresses a

16 second reason for [Fresno’s] initial rate change request submitted on April 30, 2009,” and accordingly

17 “does not constitute a second rate change request.”). The State’s approval of Fresno Defendants’ single

18 existing rate change request has been rescinded by this Court’s Preliminary Injunction and subsequent

19 Orders, thereby preventing the proposed wage reductions and, preliminarily, redressing Plaintiffs’

20 injuries. That Fresno Defendants might submit a rate change request for other reasons, which might be 21 approved by the State, is entirely irrelevant.5

22

Finally, Fresno Defendants’ discussion of California law regarding “home rule” (Fr. Mot. to

23 Dismiss 13:4-14:15) is entirely irrelevant. State law “home rule” principles cannot abrogate a public

24 entity’s responsibility to comply with the federal requirements of the ADA and Rehabilitation Act.

25

26

5 In addition, Fresno Defendants’ authority to implement a rate change under the terms of the MOU based on a reduction in Realignment funding – an issue not before this Court – is contested. See

27 Leyton Reply Decl. (Dkt. #201) ¶2 (describing state court case in which Plaintiff SEIU-UHW West United Healthcare Workers Union takes the position that Fresno’s implementation of a wage and

28 benefits cut purportedly based on a shortfall in realignment funds violates the parties’ MOU in a number of different ways). Indeed, a state court temporarily enjoined an attempt by Fresno to do so. Id. ¶4.

9

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1

Accordingly, Plaintiffs’ threatened injuries will be redressed by the requested relief. Indeed, they

2 have already been temporarily redressed by this Court’s Preliminary Injunction.

3 II. Plaintiffs Have Stated A Cognizable Claim Against Fresno Defendants

4

A. Standard

5

On a motion to dismiss for lack of subject matter jurisdiction or for failure to state a claim, “a

6 court must accept as true all of the [factual] allegations contained in a complaint.” Ashcroft v. Iqbal, –

7 U.S. –, 129 S.Ct. 1937, 1949 (2009). The complaint need allege “only enough facts to state a claim to

8 relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim

9 is facially plausible when the alleged facts “allow the court to draw the reasonable inference that the

10 defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 129 S.Ct. at 1949. The pleading

11 standard, even after Twombly and Iqbal, “is not an onerous burden.” Johnson v. Riverside Healthcare

12 Sys., 534 F.3d 1116, 1122 (9th Cir. 2008); see also Twombly, 550 U.S. at 556 (“[A] well-pleaded

13 complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and

14 that a recovery is very remote and unlikely.”) (internal quotation marks omitted). Here, as discussed

15 below, the allegations in Plaintiffs’ complaint easily satisfy and exceed the requisite pleading standard.

16

B. Plaintiffs have stated cognizable Olmstead claims against Fresno Defendants

17

Fresno Defendants first argue that Plaintiffs’ Olmstead claims are employment actions because

18 Plaintiffs seek to prevent Fresno Defendants from reducing provider wages, and that such employment

19 claims must be brought under Title I of the ADA. Fr. Mot. to Dismiss 16:8-14. However, these claims

20 are not asserted by the wage-earners, but rather by people with disabilities – IHSS consumers – to

21 challenge discrimination in the provision of services by a public entity or recipient of federal funds. The

22 mere fact that the cause of the discrimination at issue involves wages paid to IHSS providers does not

23 convert Plaintiffs’ Olmstead claims into employment disputes. See, e.g., Nelson v. Milwaukee County,

24 No. 04-CV-193, 2006 WL 290510, at *1, *6-*7 (E.D. Wisc. Feb. 7, 2006) (complaint alleging that state

25 and county were “inadequately compensating [home care] service providers” properly stated Olmstead

26 claim).

27

Fresno Defendants then suggest that Plaintiffs are simply effecting a “ploy” to “circumvent” the

28 true employment nature of the claims. Fr. Mot. to Dismiss 16:15-17. Their proof? That none of the

10

Pls. Opp. to Fresno Defs. Motions to Dismiss, Sever; Case No. C 09-02306 CW

Case4:09-cv-02306-CW Document207 Filed08/06/09 Page15 of 19

1 consumers have alleged that they have been denied IHSS services. Id. 16:17-21, 17:7-9. But of course

2 there are no such allegations. Plaintiffs brought this suit before the provider wages were reduced and

3 sought a preliminary injunction to prevent the reduction and the injury that would subsequently result.

4 Plaintiffs’ allegations that if wages are reduced they will be discriminated against because their providers

5 will leave for higher-paying employment and they will likely be forced into institutions as a result, Cpt.

6 (Dkt. #1) ¶¶58-59, are more than sufficient to state an Olmstead claim. See Fisher v. Okla. Health Care

7 Auth., 335 F.3d 1175, 1181-82 (10th Cir. 2003) (plaintiffs who “st[oo]d imperiled with segregation” as a

8 result of state’s new policy stated Olmstead claim); Crabtree v. Goetz, No. 3:08-CV-939, 2008 WL

9 5330506, at *25 (M.D. Tenn. Dec. 19, 2008) (where new state policy “will eliminate services that enable

10 Plaintiffs to remain in their community placement” and thereby “cause their institutionalization,”

11 plaintiffs demonstrated likelihood of success on Olmstead claim).

12

Fresno Defendants’ argument that their wage reduction proposal “is not directed to the

13 institutionalization of individuals who qualify for the IHSS program” (Fr. Mot. to Dismiss 17:14-15)

14 fundamentally miscomprehends the nature of an Olmstead claim. Olmstead itself is extremely clear:

15 “Unjustified isolation [of people with disabilities] . . . is properly regarded as discrimination based on

16 disability.” Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 597 (1999). The institutionalization need

17 not be intentional, it need only be unjustified. If it is unjustified – because the individual is able to and

18 wishes to live in a more integrated setting – the institutionalization itself constitutes discrimination on

19 the basis of disability.

20

Accordingly, Weinreich v. Los Angeles County Metropolitan Transportation Authority, 114 F.3d

21 976 (9th Cir. 1997), relied upon by Fresno Defendants (Fr. Mot. to Dismiss 16:22-17:25), is inapposite.

22 In Weinreich, the plaintiff was unable to meet one of the program’s eligibility requirements – updated

23 medical information certifying his disability – because of his financial inability to afford a doctor’s

24 appointment. Id. at 978. The Ninth Circuit held that the Transportation Authority’s duty to provide

25 “reasonable accommodations” did not apply where the barrier to plaintiff’s participation was not his

26 disability, but rather his financial constraints. Id.

27

But IHSS consumers have already been held eligible for participation in Medi-Cal’s IHSS

28 program. It is Fresno Defendants that would place a barrier to this participation by refusing to pay the

11

Pls. Opp. to Fresno Defs. Motions to Dismiss, Sever; Case No. C 09-02306 CW

Case4:09-cv-02306-CW Document207 Filed08/06/09 Page16 of 19

1 wages and benefits necessary to ensure that consumers will be able to obtain IHSS providers. Fresno

2 Defendants’ suggestion that the real cause of institutionalization would be the consumers’ financial

3 constraints (Fr. Mot. to Dismiss 17:20-22) is absurd given the fact that Medicaid is a program for

4 individuals “whose income and resources are insufficient to meet the costs of necessary medical

5 services.” 42 U.S.C. §1396. Fresno Defendants apparently seek to blame consumers’ inability to find

6 service providers for a program for poor people on the consumers’ lack of resources to pay for those

7 providers themselves.

8

Moreover, in Olmstead “the Supreme Court interpreted the failure to provide Medicaid services

9 in a community-based setting as a form of discrimination on the basis of disability.” Townsend v.

10 Quasim, 328 F.3d 511, 516-17 (9th Cir. 2003). Thus, as long as the Olmstead factors are satisfied – “the

11 State’s treatment professionals have determined that community placement is appropriate, the transfer

12 from institutional care to a less restrictive setting is not opposed by the affected individual, and the

13 placement can be reasonably accommodated, taking into account the resources available to the State and

14 the needs of others with mental disabilities,” Olmstead, 527 U.S. at 587 – the failure to provide services

15 to a disabled person in a community setting constitutes discrimination based on disability. See, e.g., Ball

16 v. Rodgers, No. 00-CV-67, 2009 WL 1395423, at *4-*5 (D. Ariz. Apr. 24, 2009) (state’s “failure to

17 prevent unnecessary gaps in service and properly monitor the [Medicaid home care] program improperly

18 discriminated against persons with disabilities by limiting their ability to maintain their social and

19 economic independence and depriving them of a real choice between home and institutional care”); see

20 also Fisher, 335 F.3d at 1181-82, 1184 (plaintiffs stated viable Olmstead claim in alleging that state’s

21 imposition of a five prescriptions per month limit on Medicaid recipients receiving home care services,

22 even though the additional cost for some plaintiffs would be as little as $25-60 per month).

23

Fresno Defendants close by reprising their earlier argument that it is too speculative to conclude

24 that wage reductions will cause institutionalization. Fr. Mot. to Dismiss 17:26-18:12. Of course, on a

25 motion to dismiss for failure to state a claim, Plaintiffs’ factual allegations must be taken as true.

26 Ashcroft v. Iqbal, 129 S.Ct. at 1949 (“[A] court must accept as true all of the [factual] allegations

27 contained in a complaint.”). Moreover, as demonstrated supra at 2:19-3:23, Plaintiffs have submitted

28 ample evidence to support their allegations.

12

Pls. Opp. to Fresno Defs. Motions to Dismiss, Sever; Case No. C 09-02306 CW

Case4:09-cv-02306-CW Document207 Filed08/06/09 Page17 of 19

1 III. The Claims Against Fresno Defendants Should Not Be Severed

2

Fresno Defendants next ask the Court to sever the claims against them from the remainder of the

3 case. In other words, they want to force Plaintiffs to litigate two separate cases: one asserting Olmstead

4 claims against Fresno Defendants, and a second asserting Olmstead claims and additional Medicaid

5 claims against State Defendants.

6

Federal Rule of Civil Procedure 21 permits a court to sever claims if the likelihood of prejudice

7 to the defendant and confusion from the joinder of claims outweighs the judicial economy gained by

8 maintaining a single lawsuit and any prejudice to the plaintiff that would result from severance.6

9 Coleman v. Quaker Oats Co., 232 F.3d 1271, 1296 (9th Cir. 2000). Here, the balance plainly weighs

10 against severance.

11

Judicial economy will be greatly served by keeping the claims in the same case. The Olmstead

12 claims against State Defendants and Fresno Defendants involve numerous overlapping questions of law

13 and fact. The legal claims are identical, as Plaintiffs bring the same Olmstead claims against State

14 Defendants and Fresno Defendants – that the reduction of IHSS provider wages will result in the

15 unjustified institutionalization of IHSS consumers. Severing the claims would require two courts to

16 conduct identical analyses of the Olmstead standard as applied to the reduction of wages of IHSS

17 providers. For example, almost every single argument raised in Fresno Defendants’ motion to dismiss

18 applies also to Plaintiffs’ Olmstead claims against State Defendants. Indeed, State Defendants already

19 raised some of these arguments in their opposition to Plaintiffs’ preliminary injunction motion. State

20 Prelim. Inj. Opp. (Dkt. #95) 18:1-27 (arguing that Plaintiffs failed to state an Olmstead claim because

21 allegations and supporting evidence are too speculative). Many other overlapping issues are likely to

22 arise as the litigation proceeds; for example, both State Defendants and Fresno Defendants challenged

23 the analysis of Plaintiffs’ expert, Professor Candace Howes, in their oppositions to Plaintiffs’

24 preliminary injunction motion. Id. 17:2-5; Fr. Prelim. Inj. Opp. (Dkt. #72) 21:12-17. Requiring two

25 separate courts to conduct identical analyses of these and other issues would be a needless waste of

26

27

6 Fresno Defendants do not contend that any confusion will result from maintaining the claims in

28 a single suit. Nor do they identify any prejudice that will result if they are not severed, other than inconvenience.

13

Pls. Opp. to Fresno Defs. Motions to Dismiss, Sever; Case No. C 09-02306 CW

Case4:09-cv-02306-CW Document207 Filed08/06/09 Page18 of 19

1 judicial resources. Moreover, it would create a risk of inconsistent results, as the two courts could reach

2 different conclusions on any of these common questions.

3

Fresno Defendants’ argument that severance is warranted because of facts specific to Fresno

4 County (Fr. Mot. to Sever 8:19-10:24) is unavailing. Any relevant facts specific to Fresno County are

5 also relevant to Plaintiffs’ Olmstead claims against State Defendants, because Fresno is one of several

6 counties affected by the challenged state law. Thus, even if some Fresno-specific analysis is required,

7 severing the claims will require two courts to examine identical facts. Plainly, severance will cause, not

8 avoid, wasted judicial resources and delay. See Monolithic Power Sys., Inc. v. O2 Micro Int’l Ltd., Nos.

9 04-CV-2000, 06-CV-2929, 2006 WL 2846436, at *4 (N.D. Cal. Oct. 3, 2006) (“[L]ogic dictates that

10 holding two trials, as opposed to one, will inevitably cause delay in resolution of the parties’ disputes.”)

11 (denying motion to sever). Fresno Defendants point to no reason why Fresno-specific evidence cannot

12 be presented in the instant case.

13

Moreover, severing the claims against Fresno Defendants would create a tremendous burden on

14 the Fresno Plaintiffs, who are low-income, disabled individuals. They would be forced to litigate the

15 same claims, issues, and facts in two separate forums.

16

In contrast, Fresno Defendants have failed to establish that they will incur significant prejudice,

17 delay, or expense absent severance. Although they claim that the Eastern District would be a more

18 convenient forum (Fr. Mot. to Sever 12:10-12), they provide no explanation for why the short distance

19 between Fresno County and this Court would be a significant inconvenience. And they have utterly

20 failed to make the “strong showing of inconvenience [required] to warrant upsetting the plaintiff’s

21 choice of forum.” Decker Coal Co. v. Commonwealth Edison Co., 805 F.2d 834, 843 (9th Cir. 1986)

22 (discussing defendant’s motion to transfer venue).

23

Nor have Fresno Defendants provided any basis for their assertion that denying severance would

24 cause a huge drain on their resources. Fr. Mot. to Sever 12:19-25. Plainly, they need only participate in

25 litigating those claims and issues relevant to them. Their desire to be severed from Plaintiffs’ claims

26 against State Defendants indicates that they do not believe they have any stake in those claims. Thus,

27 there is no need for them to expend resources on any matter solely related to those claims.

28

14

Pls. Opp. to Fresno Defs. Motions to Dismiss, Sever; Case No. C 09-02306 CW

Case4:09-cv-02306-CW Document207 Filed08/06/09 Page19 of 19

1

Finally, Fresno Defendants’ contention that severance is warranted because of provisions in its

2 MOU (Fr. Mot. to Sever 10:25-12:4) is unavailing. As discussed above, the relevant analysis for

3 Plaintiffs’ Olmstead claims is the impact of the wage reductions, not the cause. The common factual

4 and legal questions – whether the reduction of provider wages will result in the unjustified

5 institutionalization of people with disabilities – remain the same. Moreover, the only existing rate

6 reduction request submitted by Fresno Defendants was based on Section 12306.1(d)(6). Speculation

7 about what Fresno Defendants may or may not do in the future cannot be the basis for severance.7

8

In sum, severance would needlessly burden the courts and Plaintiffs, forcing duplicative litigation

9 of identical legal claims against two parties. Fresno Defendants have failed to demonstrate that any

10 minor inconvenience to them warrants severance.

11

CONCLUSION

12

For the foregoing reasons, Fresno Defendants’ motions to dismiss and to sever claims should be

13 denied.

14

15 Dated: August 6, 2009

Respectfully submitted,

16

STEPHEN P. BERZON (SBN 46540)

SCOTT KRONLAND (SBN 171693)

17

STACEY M. LEYTON (SBN 203827)

PEDER J. THOREEN (SBN 217081)

18

ANNE N. ARKUSH (SBN 254985)

Altshuler Berzon LLP

19

20

By: ___/s/ Stacey M. Leyton______

Stacey M. Leyton

21

Attorneys for Plaintiffs

22

23

24

25

26

27

7 Contrary to Fresno Defendants’ assertion (Fr. Mot. to Sever 12:3-4), the legality of the MOU

28 provisions – although contested – are not before this Court, so any separate litigation over the MOU will not inconvenience any party to this case. See supra at 9 n.5.

15

Pls. Opp. to Fresno Defs. Motions to Dismiss, Sever; Case No. C 09-02306 CW

 
 Case4:09-cv-02306-CW Document216 Filed08/18/09 Page1 of 3

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
MCCORMICK, BARSTOW, SHEPPARD, WAYTE & CARRUTH LLP
5 RIVER PARK PLACE EAST FRESNO, CA 93720-1501

Michael G. Woods, # 58683 Timothy J. Buchanan, # 100409 Mandy L. Jeffcoach, #232313 McCORMICK, BARSTOW, SHEPPARD,
WAYTE & CARRUTH LLP P.O. Box 28912 5 River Park Place East Fresno, CA 93720-1501 Telephone: (559) 433-1300 Facsimile: (559) 433-2300

(SPACE BELOW FOR FILING STAMP ONLY)

Attorneys for Defendants COUNTY OF FRESNO and FRESNO COUNTY IN-HOME SUPPORTIVE SERVICES PUBLIC AUTHORITY

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO/OAKLAND DIVISION

MIKESHA MARTINEZ, et al.,
Plaintiffs,
v.
ARNOLD SCHWARZENEGGER, Governor of the State of California; JOHN A. WAGNER, Director of the California Department of Social Services; DAVID MAXWELL-JOLLY, Director of the California Department of Health Care Services; JOHN CHIANG, California State Controller; FRESNO COUNTY; and FRESNO COUNTY IN-HOME SUPPORTIVE SERVICES PUBLIC AUTHORITY,
Defendants.

Case No. C 09-02306 CW
STIPULATION TO CONTINUE HEARING DATE FOR DEFENDANTS COUNTY OF FRESNO'S MOTION TO DISMISS AND MOTION TO SEVER CLAIMS; ORDER THEREON AS MODIFIED
Date: August 27, 2009 Time: 2:00 p.m. Dept.: Courtroom 2

Plaintiffs MIKESHA M ARTINEZ, et al. (“Plaintiffs”) and Defendants COUNTY OF FRESNO and FRESNO COUNTY IN- HOME SUPPORTIVE SERVI CES PUBLIC AUTHORITY (collectively referred to as "County of Fresno") he reby stipulate to continue the hearing date on County of Fresno' s Motion to Dismiss and Motion to Sever from August 27, 2009 to September 17, 2009 at 9:00 a.m., with the County of Fresno’s Reply papers being due on

STIPULATION TO CONTINUE HEARING DATE RE MOTION TO DISMISS/MOTION TO SEVER CLAIMS

Case4:09-cv-02306-CW Document216 Filed08/18/09 Page2 of 3

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
MCCORMICK, BARSTOW, SHEPPARD, WAYTE & CARRUTH LLP
5 RIVER PARK PLACE EAST FRESNO, CA 93720-1501

or before September 3, 2009.

Good cause exists for the requested continua nce as the part ies are in the process of finalizing an agreement which will effectuate, among other items, a dismissal without prejudice of the claims against County of Fresno and a waiver of fees and costs by County of Fresno.
IT IS SO STIPULATED.

Dated: August 12, 2009

McCORMICK, BARSTOW, SHEPPARD, WAYTE & CARRUTH LLP

Dated: August 12, 2009

By:

/s/ Mandy Jeffcoach

Michael G. Woods

Timothy J. Buchanan

Attorneys for Defendant

COUNTY OF FRESNO and FRESNO

COUNTY IN-HOME SUPPORTIVE

SERVICES PUBLIC AUTHORITY

ALTSCHULER BERZON LLP

By:

/s/ Anne N. Arkush

Stephen P. Berzon

Scott A. Kronland

Stacey M. Leyton

Peder J. Thoreen

Anne N. Arkush

Attorneys for Plaintiffs

ORDER Upon reviewing the Stipulati on entered into by and between Plaintiffs and County of Fresno, and good cause appearing th erefore, it is hereby OR DERED that the hearing on County of Fresno's Motion to Dismiss and Motion to Sever Claims be continued from August 27, 2009 to September 17, 2009 at 2:00 p.m. IT IS SO ORDERED.
________________________________ The Honorable Claudia Wilken Judge of the Superior Court

2
STIPULATION TO CONTINUE HEARING DATE RE MOTION TO DISMISS/MOTION TO SEVER CLAIMS

Case4:09-cv-02306-CW Document216 Filed08/18/09 Page3 of 3

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
MCCORMICK, BARSTOW, SHEPPARD, WAYTE & CARRUTH LLP
5 RIVER PARK PLACE EAST FRESNO, CA 93720-1501

29253/00173-1433428.v1
3
STIPULATION TO CONTINUE HEARING DATE RE MOTION TO DISMISS/MOTION TO SEVER CLAIMS

 
 Case4:09-cv-02306-CW Document221 Filed09/09/09 Page1 of 1

United States District Court For the Northern District of California

1

2 IN THE UNITED STATES DISTRICT COURT
3

4

FOR THE NORTHERN DISTRICT OF CALIFORNIA

5

6

7 MIKESHA MARTINEZ, et al.,

8

Plaintiffs,

9

v.

10 ARNOLD SCHWARZENEGGER, et al.,

No. C 09-02306 CW
ORDER DENYING PLAINTIFFS’ MOTION FOR CIVIL CONTEMPT SANCTIONS AND ATTORNEYS’ FEES

11

Defendants.

/ 12

13

On July 24, 2009, the Court issued an order further clarifying

14 the injunction issued on June 26, 2009. In the July 24 order, the

15 Court noted that Plaintiffs’ motion for civil contempt sanctions

16 and attorneys’ fees would be taken under submission. Although

17 State Defendants were less than compliant with the Court’s previous

18 efforts to enjoin the implementation of California Welfare and

19 Institutions Code § 12306.1(d)(6), it appears that they have

20 complied with the Court’s most recent order. After considering

21 State Defendants’ conduct thus far, the Court does not find it

22 appropriate to order civil contempt sanctions at this time. Docket

23 No. 181. Further, the Court denies without prejudice Plaintiffs’

24 motion for attorneys’ fees. Id.

25

IT IS SO ORDERED.

26 Dated: 9/9/09
27
28

CLAUDIA WILKEN United States District Judge

 
 Case4:09-cv-02306-CW Document224 Filed10/01/09 Page1 of 4

1 STEPHEN P. BERZON (SBN 46540) SCOTT A. KRONLAND (SBN 171693)
2 STACEY M. LEYTON (SBN 203827) PEDER J. THOREEN (SBN 217081)
3 ANNE N. ARKUSH (SBN 254985) Altshuler Berzon LLP
4 177 Post Street, Suite 300 San Francisco, California 94108
5 Telephone: (415) 421-7151 Facsimile: (415) 362-8064
6 sberzon@altshulerberzon.com skronland@altshulerberzon.com
7 sleyton@altshulerberzon.com pthoreen@altshulerberzon.com
8 aarkush@altshulerberzon.com

9 Attorneys for Plaintiffs

10

UNITED STATES DISTRICT COURT

11

FOR THE NORTHERN DISTRICT OF CALIFORNIA

12

SAN FRANCISCO/OAKLAND DIVISION

13 MIKESHA MARTINEZ, by and through her husband and next friend Carlos Martinez, LYDIA DOMINGUEZ, ALEX
14 BROWN, by and through his mother and next friend Lisa Brown, DONNA BROWN, CHLOE LIPTON, by and
15 through her conservator and next friend Julie WeissmanSteinbaugh, HERBERT M. MEYER, LESLIE GORDON,
16 CHARLENE AYERS, WILLIE BEATRICE SHEPPARD, and ANDY MARTINEZ, on behalf of themselves and a
17 class of those similarly situated; SERVICE EMPLOYEES INTERNATIONAL UNION UNITED HEALTHCARE
18 WORKERS WEST; SERVICE EMPLOYEES INTERNATIONAL UNION UNITED LONG-TERM
19 CARE WORKERS; SERVICE EMPLOYEES INTERNATIONAL UNION LOCAL 521; and SERVICE
20 EMPLOYEES INTERNATIONAL UNION CALIFORNIA STATE COUNCIL,
21

Plaintiffs, 22

23

v.

ARNOLD SCHWARZENEGGER, Governor of the State of 24 California; JOHN A. WAGNER, Director of the California
Department of Social Services; DAVID MAXWELL25 JOLLY, Director of the California Department of Health
Care Services; JOHN CHIANG, California State Controller; 26 FRESNO COUNTY; and FRESNO COUNTY IN-HOME
SUPPORTIVE SERVICES PUBLIC AUTHORITY, 27

Defendants. 28

Case No. C 09-02306 CW
CLASS ACTION
ADMINISTRATIVE MOTION TO CONSIDER WHETHER CASE SHOULD BE RELATED
TO v.L. v. WAGNER, CASE
NO. C 09-04668 JCS
Expedited Review Requested

Admin. Mtn To Consider Whether Cases Should Be Related, Case No. 09-02306

Case4:09-cv-02306-CW Document224 Filed10/01/09 Page2 of 4

1

Plaintiffs respectfully submit this administrative motion pursuant to Northern District Civil

2 Local Rule 3-12 to consider whether this case should be related to VL. v. Wagner, Case No. C 09-

3 04668 JCS, filed October 1, 2009.

4

VL. v. Wagner is related to the present case within the meaning of Local Rule 3-12(a).

5 First, the actions concern substantially the same parties. See Local Rule 3-12(a)(I). David

6 Maxwell-Jolly and John A. Wagner, sued in their official capacities as directors of the California

7 Department of Health Care Services and the California Department of Social Services, are

8 defendants in both cases. Furthermore, the plaintiffs in both cases are substantially the same. Both

9 cases are brought by two groups of plaintiffs: (a) low-income elderly and/or disabled individuals

10 who receive Medi-Cal In-Home Support Services ("IHS S"), who are bringing suit on behalf of

11 themselves and those similarly situated, and (b) labor organizations that represent IHSS providers

12 and are bringing suit on behalf of their members and/or affiliated labor organizations. Individual

13 named plaintiff Willie Beatrice Sheppard is a named plaintiff in both cases, as are plaintiff labor

14 organizations Service Employees International Union United Healthcare West; Service Employees

15 International Union United Long-Term Care Workers; Service Employees International Local 521;

16 and Service Employees International Union California State Council.

17

Second, it appears likely that there will be an unduly burdensome duplication of labor and

18 expense or conflicting results ifMartinez and VL. v. Wagner are conducted before different

19 Judges. See Local Rule 3-12(a)(2). Martinez and VL. v. Wagner both challenge recent state action

20 to change the terms of the IHSS program. Although Martinez focuses on changes to the

21 compensation ofIHSS workers and VL. v. Wagner focuses on a changes to the eligibility

22 requirements for the IHSS program, the two cases will involve highly overlapping factual and legal

23 questions because the changes at issue in both cases would have the same effect: a substantial

24 reduction or elimination of services for thousands ofIHSS participants.

25

For example, both the Martinez plaintiffs and the plaintiffs in VL. v. Wagner allege that the

26 cuts at issue will result in the unjustified institutionalization ofIHSS consumers, in violation of the

27 Americans with Disabilities Act and the Rehabilitation Act. Thus both cases will require a detailed

28 examination of the options available to IHSS consumers who lose services and whether, in fact, the

1 Admin. Mtn To Consider Whether Cases Should Be Related, Case No. 09-02306

Case4:09-cv-02306-CW Document224 Filed10/01/09 Page3 of 4

1 loss of services will result in unjustified institutionalization. In both cases, the State Defendants

2 can be expected to raise essentially identical "fundamental alteration" defenses to these claims.

3

Further, inMartinez, plaintiffs have alleged that reductions in IHSS providers'

4 compensation violate the federal Medicaid Act's requirements that IHSS participants receive care

5 that is high quality, and have the same level of access to in-home care as those who can afford to

6 pay privately for such services. This claim will require detailed evidence about the needs ofIHSS

7 participants, how IHSS has historically met those needs, the availability of alternatives to IHSS,

8 and the impact of a reduction ofIHSS services on consumers' health and safety. VL. v. Wagner

9 will require extremely similar evidence. For example, the VL. v. Wagner plaintiffs allege, among

10 other things, that the reductions in IHSS services violates the Medicaid Act's guarantee that

11 individuals with equal needs receive equal services, and that they receive services sufficient to

12 satisfy the program's objectives. As with the Medicaid Act claims in Martinez, these claims will

13 require a thorough analysis ofIHSS participants' needs, how IHSS meets those needs, alternatives

14 to IHSS, and the effect of reduction or elimination ofIHSS services on consumers.

15

Additionally, in the context of the preliminary injunction briefing in Martinez, the Court

16 has already considered the harm to IHS S consumers that results from the loss of services. The

17 identical issue is raised in VL. v. Wagner, because, as in Martinez, plaintiffs in that case are

18 seeking preliminary injunctive relief to prevent the irreparable harm that will result from loss of

19 IHSS services.

20

Because the cuts to IHSS services challenged in the VL. v. Wagner case are scheduled for

21 implementation on November 1, 2009, and the notices to IHSS consumers informing them of their

22 loss of eligibility for IHSS services will be sent at least ten days prior, plaintiffs in that case will be

23 filing a motion for a preliminary injunction in short order. Accordingly, plaintiffs hereby

24 respectfully request that the Court expedite its review of this related case motion.

25

For the foregoing reasons, this case should be related to VL. v. Wagner, Case No. Case No.

26 C 09-04668 JCS, filed on October 1, 2009.

27

28

2 Admin. Mtn To Consider Whether Cases Should Be Related, Case No. 09-02306

Case4:09-cv-02306-CW Document224 Filed10/01/09 Page4 of 4

1 Dated: October 1,2009

Respectfully submitted,

2

STEPHEN P. BERZON (SBN 46540)

3

SCOTT A. KRONLAND (SBN 171693)

STACEY M. LEYTON (SBN 203827)

4

PEDER J. THOREEN (SBN 217081)

ANNE N. ARKUSH (SBN 254985) 5

6

By: lsi StacevM Levton

Stacey M. Leyton

7

Attorneys for Plaintiffs 8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

3 Admin. Mtn To Consider Whether Cases Should Be Related, Case No. 09-02306

 
 Case4:09-cv-02306-CW Document231 Filed10/06/09 Page1 of 2
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA
RELATED CASE ORDER A Motion for Administrative Relief to Consider Whether Cases Should be Related or a Sua Sponte Judicial Referral for Purpose of Determining Relationship (Civil L.R. 3-12) has been filed. The time for filing an opposition or statement of support has passed. As the judge assigned to the earliest filed case below that bears my initials, I find that the more recently filed case(s) that I have initialed below are related to the case assigned to me, and such case(s) shall be reassigned to me. Any cases listed below that are not related to the case assigned to me are referred to the judge assigned to the next-earliest filed case for a related case determination.
C 09-02306 CW Martinez et al v. Schwarzenegger et al C 09-04668 JSW V. et al v. Wagner et al
I find that the above case is related to the case assigned to me. CW
ORDER Counsel are instructed that all future filings in any reassigned case are to bear the initials of the newly assigned judge (“CW”) immediately after the case number. Any case management conference in any reassigned case will be rescheduled by the Court. The parties shall adjust the dates for the conference, disclosures and report required by FRCivP 16 and 26 accordingly. Unless otherwise ordered, any dates for hearing noticed motions are vacated and must be renoticed by the moving party before the newly assigned judge; any deadlines set by the ADR Local Rules remain in effect; and any deadlines established in a case management order continue to govern, except dates for appearance in court, which will be rescheduled by the newly assigned judge.
10/6/09 Dated:________________
Judge Claudia Wilken
-1-

Case4:09-cv-02306-CW Document231 Filed10/06/09 Page2 of 2

CERTIFICATE OF SERVICE
I certify that on the date stated below, I lodged a copy of this order with each judicial officer and I mailed a copy to each counsel of record or pro se party in the cases listed above.
Richard W. Wieking, Clerk

DATED: _______________________

By: Deputy Clerk

Copies to: Courtroom Deputies Case Systems Administrators Counsel of Record
Entered into Assignment Program:

(date)

-2-

 
 Case4:09-cv-02306-CW Document235 Filed10/15/09 Page1 of 13

United States District Court For the Northern District of California

1

2

3

IN THE UNITED STATES DISTRICT COURT

4

5

FOR THE NORTHERN DISTRICT OF CALIFORNIA

6

7 MIKESHA MARTINEZ, et al.,

8

Plaintiffs,

9

v.

No. C 09-02306 CW
ORDER DENYING FRESNO DEFENDANTS’ MOTION TO DISMISS AND SEVER

10 ARNOLD SCHWARZENEGGER, et al.,

11

Defendants.

/

12

13

Plaintiffs, In-Home Support Services (IHSS) consumers and

14 unions representing IHSS providers, filed suit against various

15 state officials (State Defendants) and against Fresno County and

16 Fresno County In-Home Support Services Public Authority (Fresno

17 Defendants) seeking to enjoin reductions in IHSS providers’ wages

18 and benefits. Fresno Defendants have filed a motion to dismiss the

19 claims against them, asserting that Plaintiffs lack standing to

20 bring, and fail to state, a claim for relief against them. Fresno

21 Defendants have also moved to sever the claims asserted against

22 them from the claims against State Defendants. Plaintiffs oppose

23 the motions. The matter was heard on September 17, 2009. Having

24 considered oral argument and all of the papers submitted by the

25 parties, the Court denies the motions to dismiss and sever.

26

BACKGROUND

27

IHSS providers give in-home assistance to low-income elderly

28 and disabled individuals through California’s Medi-Cal program.

Case4:09-cv-02306-CW Document235 Filed10/15/09 Page2 of 13

United States District Court For the Northern District of California

1 The cuts to their wages were scheduled to go into effect July 1,

2 2009. Plaintiffs filed this complaint on May 26, 2009.

3

Plaintiffs’ complaint asserts four claims for relief. The

4 first two claims, asserted only against State Defendants, challenge

5 Welfare and Institutions Code § 12306.1(d)(6) as violative of the

6 federal Medicaid Act. The third and fourth claims, asserted

7 against both State Defendants and Fresno Defendants, bring

8 challenges under the Americans with Disability Act (ADA), 42 U.S.C.

9 § 12132 and the Rehabilitation Act, 29 U.S.C. § 794(a). In these

10 claims, Plaintiffs allege that reducing the wages and benefits of

11 IHSS providers will create a shortage of providers and that some

12 IHSS consumers will be unable safely to remain at home without IHSS

13 services and will be forced to enter nursing homes or other

14 residential institutions. Plaintiffs claim that this violates the

15 anti-discrimination provisions of the ADA and the Rehabilitation

16 Act. “Unjustified isolation [of people with disabilities] . . . is

17 properly regarded as discrimination based on disability.” Olmstead

18 v. L.C. ex rel. Zimring, 527 U.S. 581, 597 (1999).

19

On June 4, Plaintiffs filed a motion for a preliminary

20 injunction based on all four claims for relief. On June 26, the

21 Court issued a preliminary injunction enjoining implementation of

22 Section 12306.1(d)(6) based on Plaintiffs’ first claim for relief.

23 The Court concluded that the statute violated the procedural

24 requirements of the federal Medicaid Act. The Court noted:

25

IHSS consumers will suffer immediate and irreparable harm

unless the Court issues a preliminary injunction. The wage

26

reductions will cause many IHSS providers to leave employment,

which in turn will leave consumers without IHSS assistance.

27

The consumers’ quality of life and health-care will be greatly

diminished, which will likely cause great harm to disabled

28

individuals. For instance, the declarations submitted by

2

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United States District Court For the Northern District of California

1

Plaintiffs describe harms ranging from going hungry and

dehydration, to falls and burns, to an inability ever to leave

2

the home. Institutionalizing individuals that can comfortably

survive in their home with the help of IHSS providers will

3

“cause Plaintiffs to suffer injury to their mental and

physical health, including a shortened life, and even death

4

for some Plaintiffs.” Crabtree v. Goetz, 2008 WL 5330506, at

*30 (M.D. Tenn.).

5

Order Granting Preliminary Injunction at 10-11. The Court did not

6

rule on Plaintiffs’ likelihood of success on their second, third or

7

fourth claims for relief. Id. at 10.

8

In a later order clarifying the preliminary injunction, the

9

Court explained that the injunction required State Defendants to

10

“rescind the State’s approval of all county wage reduction requests

11

which were submitted after February 20, 2009, to be effective July

12

1, 2009.” Amended Prelim. Inj. at 2. Fresno Defendants then asked

13

the State not to rescind its approval of their wage reduction

14

request. They wrote a letter to California Department of Social

15

Services (CDSS), which stated that, in addition to reducing their

16

rate in response to Section 12306.1(d)(6), they had a separate and

17

independent reason for reducing the rate. They claimed that they

18

based the reduction on a section of the contractual Memorandum of

19

Understanding (MOU) entered into between the County of Fresno and

20

Plaintiff Service Employees International Union United Healthcare

21

Workers West in September, 2006. The MOU provides for the

22

possibility of a rate reduction if Fresno County’s funding from the

23

Realignment Act were reduced.1 The Court held that the letter

24

“merely expresses a second reason for [Fresno’s] initial rate

25

change request submitted on April 30, 2009" and “does not

26

27

1Realignment Act funding comes from 1991 legislation that

increased sales taxes and vehicle license fees for specific social 28 services and mental health and health programs.

3

Case4:09-cv-02306-CW Document235 Filed10/15/09 Page4 of 13

United States District Court For the Northern District of California

1 constitute a second rate change request.” Order Further Clarifying

2 Inj. at 6. The Court concluded, “Before the State may approve a

3 rate reduction for . . . Fresno County, it must receive from the

4 County a new and separate written request conforming to all the

5 requirements of law and regulation, based on a reason other than

6 § 12306.1(d)(6).” Id. at 7.2 No evidence of such a request has

7 been submitted to date.

8

DISCUSSION

9 I. Subject Matter Jurisdiction

10

Subject matter jurisdiction is a threshold issue which goes to

11 the power of the court to hear the case. Federal subject matter

12 jurisdiction must exist at the time the action is commenced.

13 Morongo Band of Mission Indians v. Cal. State Bd. of Equalization,

14 858 F.2d 1376, 1380 (9th Cir. 1988). A federal court is presumed

15 to lack subject matter jurisdiction until the contrary

16 affirmatively appears. Stock W., Inc. v. Confederated Tribes, 873

17 F.2d 1221, 1225 (9th Cir. 1989).

18

Dismissal is appropriate under Rule 12(b)(1) when the district

19 court lacks subject matter jurisdiction over the claim. Fed. R.

20 Civ. P. 12(b)(1). A Rule 12(b)(1) motion may either attack the

21 sufficiency of the pleadings to establish federal jurisdiction, or

22 allege an actual lack of jurisdiction which exists despite the

23 formal sufficiency of the complaint. Thornhill Publ’g Co. v. Gen.

24 Tel. & Elecs. Corp., 594 F.2d 730, 733 (9th Cir. 1979); Roberts v.

25 Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987).

26

27

2The Court grants Fresno Defendant’s request to take judicial

notice of the publications submitted by federal, state, local 28 officials and agencies.

4

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United States District Court For the Northern District of California

1

A. Standing

2

“Because standing and mootness both pertain to a federal

3 court’s subject-matter jurisdiction under Article III [of the

4 Constitution], they are properly raised in a motion to dismiss

5 under Federal Rule of Civil Procedure 12(b)(1).” White v. Lee, 227

6 F.3d 1214, 1242 (9th Cir. 2000). Article III limits the

7 jurisdiction of the federal courts to “cases” and “controversies.”

8 In order to satisfy the “case or controversy” requirement, a

9 plaintiff must show that: “(1) he or she has suffered an injury in

10 fact that is concrete and particularized, and actual or imminent;

11 (2) the injury is fairly traceable to the challenged conduct; and

12 (3) the injury is likely to be redressed by a favorable court

13 decision.” Salmon Spawning & Recovery Alliance v. Gutierrez, 545

14 F.3d 1220, 1225 (9th Cir. 2008). “Article III standing requires an

15 injury that is actual or imminent, not conjectural or

16 hypothetical.” Cole v. Oroville Union High Sch. Dist., 228 F.3d

17 1092, 1100 (9th Cir. 2000) (internal quotation marks omitted). A

18 plaintiff seeking declaratory and injunctive relief cannot rely

19 solely on a past injury; instead, he or she must demonstrate a

20 “very significant possibility of future harm” to warrant the

21 requested relief. San Diego County Gun Rights Comm. v. Reno, 98

22 F.3d 1121, 1126 (9th Cir. 1996).

23

A standing challenge can be either “facial” or “factual.”

24 White v. Lee, 227 F.3d at 1242. A “facial” attack challenges a

25 complaint on its face and the court generally assumes the truth of

26 the allegations asserted therein. Id. In a “factual” attack, the

27 court “may look beyond the complaint to matters of public record

28 without having to convert the motion into one for summary judgment”

5

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United States District Court For the Northern District of California

1 and it “need not presume the truthfulness of the plaintiffs'

2 allegations.” Id.

3

Fresno Defendants assert that Plaintiffs’ complaint on its

4 face does not allege injury and causation. Fresno Defendants argue

5 that Plaintiffs “set forth wild prognostications of future harm

6 based only upon conjecture and surmise.” Motion at 9. The Court

7 disagrees. Plaintiffs have alleged that Fresno Defendants’

8 reduction of IHSS provider wages and benefits will cause

9 unjustified institutionalization of IHSS consumers. For instance,

10 the complaint alleges:

11

In the counties in which wages will be reduced, many IHSS

providers will be forced to leave IHSS employment to seek

12

higher paying jobs. Not all the vacancies created by IHSS

providers leaving their employment will be filled with new

13

IHSS providers.

14

As a result of these vacancies, many IHSS consumers in

these counties will be unable to find providers for any or all

15

of their authorized IHSS hours. These consumers will either

have to make do with reduced or eliminated IHSS services, or

16

be forced to enter nursing homes or other residential

institutions.

17

Complaint ¶¶ 58-59. These allegations on their face satisfy the

18

standing requirements.

19

Fresno Defendants also mount a factual standing challenge.

20

They argue that Plaintiffs cannot show redressability because the

21

MOU provides a separate and distinct contingency clause for the

22

reduction of Fresno County IHSS provider compensation. Fresno

23

Defendants assert that the terms of the MOU control the present

24

dispute and that Plaintiffs’ injury cannot be redressed by this

25

lawsuit. However, the MOU has little bearing on Plaintiffs’

26

standing because the reason for Fresno Defendants’ attempt to

27

reduce IHSS provider wages is less relevant to Plaintiffs’ third

28

6

Case4:09-cv-02306-CW Document235 Filed10/15/09 Page7 of 13

United States District Court For the Northern District of California

1 and fourth claims for relief than the actual impact of the wage

2 reduction.

3

Further, Fresno Defendants have not yet submitted a separate

4 rate reduction request to the State based on the MOU. Standing is

5 measured at the commencement of a lawsuit, Friends of the Earth,

6 Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 189 (2000), and

7 at the commencement of the present lawsuit, Fresno Defendants had

8 submitted a single rate change request based on Section

9 12306.1(d)(6). The State’s approval of that rate change request

10 was rescinded by the Court’s preliminary injunction and subsequent

11 orders clarifying the injunction. Fresno Defendants’ intent to

12 submit a future rate change request based on the MOU is not

13 relevant at this juncture.

14

The Court also notes that Fresno Defendants’ reliance on

15 Pritikin v. Department of Energy, 254 F.3d 791 (9th Cir. 2001), and

16 San Diego County Gun Rights, 98 F.3d 1121, is misplaced. In these

17 cases, conduct by an entity which was not a party to the litigation

18 would have been required to redress the plaintiffs’ injuries. The

19 plaintiffs lacked standing because the court lacked authority to

20 issue an order to the relevant entity. Pritikin, 254 F.3d at 801

21 (“Pritikin has failed to show how ordering [defendant] DOE to

22 request funding would lead to the tangible result of a Hanford

23 medical monitoring program when only [non-party] ATSDR has the

24 power to actually initiate the program.”); San Diego County Gun

25 Rights, 98 F.3d at 1130 (“[I]t is third-party weapons dealers and

26 manufacturers -- not the government defendants -- who have raised

27 the prices of assault weapons [thereby injuring the plaintiffs].”).

28 Here, Fresno Defendants are parties to this lawsuit and Plaintiffs’

7

Case4:09-cv-02306-CW Document235 Filed10/15/09 Page8 of 13

United States District Court For the Northern District of California

1 claims against them can adequately be redressed.

2 II. Motion to Dismiss for Failure to State a Claim

3

A. Legal Standard

4

A complaint must contain a “short and plain statement of the

5 claim showing that the pleader is entitled to relief.” Fed. R.

6 Civ. P. 8(a). When considering a motion to dismiss under Rule

7 12(b)(6) for failure to state a claim, dismissal is appropriate

8 only when the complaint does not give the defendant fair notice of

9 a legally cognizable claim and the grounds on which it rests.

10 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). In

11 considering whether the complaint is sufficient to state a claim,

12 the court will take all material allegations as true and construe

13 them in the light most favorable to the plaintiff. NL Indus., Inc.

14 v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986). However, this

15 principle is inapplicable to legal conclusions; "threadbare

16 recitals of the elements of a cause of action, supported by mere

17 conclusory statements," are not taken as true. Ashkcroft v. Iqbal,

18 ___ U.S. ___, 129 S. Ct. 1937, 1949-50 (2009) (citing Twombly, 550

19 U.S. at 555).

20

B. Analysis

21

Fresno Defendants argue that Plaintiffs fail to state claims

22 under the ADA and the Rehabilitation Act. Title II of the ADA

23 provides that “no qualified individual with a disability shall, by

24 reasons of such disability, be excluded from participation in or be

25 denied the benefits of the services, programs, or activities of a

26 public entity, or be subjected to discrimination by any such

27 entity.” 42 U.S.C. § 12132. Similarly, the Rehabilitation Act

28 (RA) states, “No otherwise qualified individual with a disability

8

Case4:09-cv-02306-CW Document235 Filed10/15/09 Page9 of 13

United States District Court For the Northern District of California

1 in the United States . . . shall, solely by reason of her or his

2 disability, be excluded from the participation in, be denied the

3 benefits of, or be subjected to discrimination under any program or

4 activity receiving Federal financial assistance . . .” 29 U.S.C.

5 § 794(a).3 The integration mandate provides: “A public entity

6 shall administer services, programs, and activities in the most

7 integrated setting appropriate to the needs of qualified persons

8 with disabilities.” 28 C.F.R. § 35.130(d). The unjustified

9 institutional isolation of persons with disabilities is “properly

10 regarded as discrimination based on disability” because it

11 perpetuates unwarranted assumptions and diminishes participation in

12 everyday life activities. Olmstead v. L.C. ex rel. Zimring, 527

13 U.S. 581, 597 (1999).

14

To state a valid claim under either the ADA or Rehabilitation

15 Act, a plaintiff must allege that he or she (1) is a qualified

16 individual with a disability; (2) was either excluded from

17 participation in or denied the benefits of a public entity’s

18 services, programs or activities or was otherwise discriminated

19 against by the public entity; and (3) that such exclusion, denial

20 of benefits, or discrimination was by reason of his or her

21 disability. Duval v. County of Kitsap, 260 F.3d 1124, 1135 (9th

22 Cir. 2001).

23

Fresno Defendants argue that Plaintiffs’ claims cannot be

24 brought under these statutes because they are essentially

25 employment actions. See Zimmerman v. Oregon Dept. of Justice, 170

26

27

3The Court will address the ADA and RA claims together because

there is no substantial difference in the analysis of the rights 28 and obligations created by the provisions.

9

Case4:09-cv-02306-CW Document235 Filed10/15/09 Page10 of 13

United States District Court For the Northern District of California

1 F.3d 1169, 1173 (9th Cir. 1999) (“Congress unambiguously expressed

2 its intent for Title II [of the ADA] not to apply to employment.”).

3 However, Fresno Defendants ignore the fact that the third and

4 fourth causes of action in this case are not asserted by the wage-

5 earners, but rather by the people with disabilities -- IHSS

6 consumers -- to challenge discrimination in the provision of

7 services. The fact that the cause of the alleged discrimination

8 involves wages paid to IHSS providers does not transform

9 Plaintiffs’ disability discrimination claims into employment

10 disputes.

11

Fresno Defendants also assert that, because Plaintiffs seek to

12 prevent Fresno Defendants from reducing IHSS provider wages,

13 Plaintiffs’ claims have nothing to do with discrimination on the

14 basis of disability. They rely on Weinreich v. Los Angeles County

15 Metro. Transp. Auth., 114 F.3d 976 (9th Cir. 1997), to support

16 their argument. In Weinreich, the plaintiff challenged his

17 exclusion from a reduced transit fare program for disabled persons

18 on the basis that he could not afford to pay a doctor to certify

19 his disability, which was required by the program. Id. at 978.

20 The Ninth Circuit held that the Transportation Authority’s duty to

21 provide “reasonable accommodations” did not apply where the barrier

22 to the plaintiff’s participation was not his disability, but rather

23 his financial constraints. Id. Fresno Defendants claim that, like

24 the plaintiff in Weinreich, Plaintiffs in this case have not been

25 discriminated against because the County of Fresno is merely

26 effectuating a budgetary decision, not denying services under the

27 IHSS program. The Court disagrees. Plaintiffs allege that the

28 implementation of Section 12306.1(d)(6) and associated wage

10

Case4:09-cv-02306-CW Document235 Filed10/15/09 Page11 of 13

United States District Court For the Northern District of California

1 reductions will force Plaintiffs who wish to remain in their homes,

2 and are able to do so with the help of in-home care, to enter

3 institutions. Plaintiffs depend upon the services of IHSS

4 providers in order to maintain their social and economic

5 independence. These allegations sufficiently state disability

6 discrimination claims under Olmstead.

7 III. Motion to Sever

8

Federal Rule of Civil Procedure 21 provides, "On motion or on

9 its own, the court may at any time, on just terms, add or drop a

10 party. The Court may also sever any claim against a party." A

11 court, in its discretion, may sever parties, "so long as no

12 substantial right will be prejudiced by the severance." Coughlin

13 v. Rogers, 130 F.3d 1348, 1350 (9th Cir. 1997). The court may

14 sever the claims against a party in the interest of fairness and

15 judicial economy and to avoid prejudice, delay or expense. Coleman

16 v. Quaker Oats Co., 232 F.3d 1271, 1296-97 (9th Cir. 2000).

17

Fresno Defendants move the Court to sever the claims against

18 them from the claims against State Defendants. They argue that the

19 claims against them require factual determinations specific only to

20 Fresno County and not State Defendants. They assert that, even

21 though Fresno County is the only county named as a Defendant in

22 this case, a county-by-county inquiry must be made to determine

23 whether any reduction in hourly wages paid to IHSS providers will

24 lead to the loss of IHSS providers to the point where IHSS

25 customers will be institutionalized. Fresno Defendants state,

26 “Because an individualized analysis is required to determine each

27 counties’ liability, severance will allow for a more focused

28 analysis, consistent with fairness and will avoid prejudice and

11

Case4:09-cv-02306-CW Document235 Filed10/15/09 Page12 of 13

United States District Court For the Northern District of California

1 delay to all parties involved.” Motion at 10.

2

Although the litigation may require some Fresno-specific

3 analyses, the Olmstead claims against State Defendants and Fresno

4 Defendants involve numerous overlapping questions of law. The

5 legal claims asserted against State Defendants and Fresno

6 Defendants are the same -- that the reduction of IHSS provider

7 wages will result in the unjustified institutionalization of IHSS

8 consumers. Further, any fact specific inquiry into Fresno County

9 will inform Plaintiffs’ Olmstead claims against State Defendants.

10 Thus, judicial economy will be served by considering Plaintiffs’

11 claims against Fresno Defendants in conjunction with their claims

12 against State Defendants. Requiring separate trials on these

13 claims would likely waste judicial resources and risk creating

14 inconsistent results.

15

Fresno Defendants also argue that severing the claims and

16 transferring them to the Eastern District of California would be

17 more convenient and less expensive for all parties because that is

18 where Fresno Defendants, and some of the providers and recipients

19 of care, reside. However, severing the claims against Fresno

20 Defendants might also create a burden on Plaintiffs who reside in

21 Fresno because they would be forced to litigate the same claims in

22 two separate forums.

23

Fresno Defendants also assert that the existence of the

24 provision in the MOU that allows for a reduction in IHSS wages in

25 response to losses of Realignment Act funding provides a unique

26 relationship between Fresno Defendants and IHSS providers. The

27 loss of Realignment Act funding can justify a wage reduction

28 irrespective of Section 12306.1(d)(6). However, at this juncture,

12

Case4:09-cv-02306-CW Document235 Filed10/15/09 Page13 of 13

United States District Court For the Northern District of California

1 the only rate reduction request submitted to the State by Fresno

2 Defendants was based on Section 12306.1(d)(6). Speculation about

3 what Fresno Defendants may do in the future with respect to IHSS

4 provider wages cannot provide the basis for severance.

5

Plaintiffs’ claims against Fresno Defendants will not be

6 severed. However, the Court will revisit this issue if, as the

7 case develops, new facts arise that tip the balance in favor of

8 severance.

9

CONCLUSION

10

For the foregoing reasons, the Court denies Fresno Defendants’

11 motions to dismiss or sever the claims against them. Fresno

12 Defendants shall answer Plaintiffs’ complaint within twenty days

13 from the date of this order.

14

IT IS SO ORDERED.

15 Dated: 10/15/09
16
17

CLAUDIA WILKEN United States District Judge

18

19

20

21

22

23

24

25

26

27

28

13

 
 Case4:09-cv-02306-CW Document244 Filed11/30/09 Page1 of 15

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
MCCORMICK, BARSTOW, SHEPPARD, W AYTE & CARRUTH LLP
5 RIVER PARK PLACE EAST FRESNO, CA 93720-1501

Michael G. Woods, # 58683 Timothy J. Buchanan, # 100409 McCORMICK, BARSTOW, SHEPPARD,
WAYTE & CARRUTH LLP P.O. Box 28912 5 River Park Place East Fresno, CA 93720-1501 Telephone: (559) 433-1300 Facsimile: (559) 433-2300

(SPACE BELOW FOR FILING STAMP ONLY)

Attorneys for Defendants COUNTY OF FRESNO and FRESNO COUNTY IN-HOME SUPPORTIVE SERVICES PUBLIC AUTHORITY

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO/OAKLAND DIVISION

SIA CHUE YANG, et al., Plaintiffs,
v. ARNOLD SCHWARZENEGGER, Governor of the State of California; JOHN A. WAGNER, Director of the California Department of Social Services; DAVID MAXWELL-JOLLY, Director of the California Department of Health Care Services; JOHN CHIANG, California State Controller; FRESNO COUNTY; and FRESNO COUNTY IN-HOME SUPPORTIVE SERVICES PUBLIC AUTHORITY,
Defendants.

Case No. C 09-02306 CW ANSWER OF FRESNO COUNTY AND FRESNO COUNTY IN-HOME SUPPORTIVE SERVICES PUBLIC AUTHORITY TO PLAINTIFFS' FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND DEMAND FOR JURY TRIAL

Come now, Defendants FRESNO COUNTY and FRESNO COUNTY IN-HOME SUPPORTIVE SERVICES PUBLIC AUTHORITY (hereinafter "Fresno County"), and responding to Complaint for Declaratory and Injunctive Relief (hereinafter referred to as "Complaint") in the above-captioned action, admit, deny, and allege as follows: /// ///
ANSWER OF FRESNO COUNTY AND FRESNO COUNTY IN-HOME SUPPORTIVE SERVICES PUBLIC AUTHORITY TO PLAINTIFFS' FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case4:09-cv-02306-CW Document244 Filed11/30/09 Page2 of 15

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MCCORMICK, BARSTOW, SHEPPARD, W AYTE & CARRUTH LLP
5 RIVER PARK PLACE EAST FRESNO, CA 93720-1501

INTRODUCTION 1. In answer to Paragraph 1 of Plaintiffs’ Complaint, to the extent it contains legal conclusions, no admission or denial is required. Except as so limited, Fresno County lacks sufficient knowledge or information to form a belief as to the truth of the allegations contained therein and, on that basis, denies them. 2. In response to paragraph 2, Fresno County lacks sufficient knowledge or information to form a belief as to the truth of the allegations contained therein and, on that basis, denies them. 3. In response to paragraph 3, Fresno County responds that Welfare and Institutions Code section 12306.1(d)(6) speaks for itself, but to the extent that it would be possible to respond to the allegations stated or implied therein, Fresno County denies them. 4. In answer to Paragraph 4 of Plaintiffs’ Complaint, to the extent it contains legal conclusions, no admission or denial is required. Except as so limited, Fresno County lacks sufficient knowledge or information to form a belief as to the truth of the allegations contained therein and, on that basis, denies them. 5. In answer to Paragraph 5 of Plaintiffs’ Complaint, to the extent it contains legal conclusions, no admission or denial is required. Except as so limited, Fresno County lacks sufficient knowledge or information to form a belief as to the truth of the allegations contained therein and, on that basis, denies them. 6. In answer to Paragraph 6 of Plaintiffs’ Complaint, to the extent it contains legal conclusions, no admission or denial is required. Except as so limited, Fresno County lacks sufficient knowledge or information to form a belief as to the truth of the allegations contained therein and, on that basis, denies them.
JURISDICTION 7. In response to paragraph 7, Fresno County admits that Plaintiffs have filed this action under the listed provisions of law. 8. In response to paragraph 8, Fresno County admits that this Court has subject matter jurisdiction under the mentioned statutes.
2
ANSWER OF FRESNO COUNTY AND FRESNO COUNTY IN-HOME SUPPORTIVE SERVICES PUBLIC AUTHORITY TO PLAINTIFFS' FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case4:09-cv-02306-CW Document244 Filed11/30/09 Page3 of 15

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MCCORMICK, BARSTOW, SHEPPARD, W AYTE & CARRUTH LLP
5 RIVER PARK PLACE EAST FRESNO, CA 93720-1501

9. In answer to Paragraph 9 of Plaintiffs’ Complaint, to the extent it contains legal conclusions, no admission or denial is required.
VENUE 10. In answer to Paragraph 10 of Plaintiffs’ Complaint, to the extent it contains legal conclusions, no admission or denial is required. Except as so limited, Fresno County lacks sufficient knowledge or information to form a belief as to the truth of the allegations contained therein and, on that basis, denies them. Further, Fresno County contends that venue is proper, as to the claims asserted against it, in the Eastern District of California.
INTRADISTRICT ASSIGNMENT 11. In answer to Paragraph 11 of Plaintiffs’ Complaint, to the extent it contains legal conclusions, no admission or denial is required. Except as so limited, Fresno County lacks sufficient knowledge or information to form a belief as to the truth of the allegations contained therein and, on that basis, denies them. Further, Fresno County contends that venue is proper, as to the claims asserted against it, in the Eastern District of California. 12. In response to Paragraph 12, Fresno County lacks sufficient information or belief to enable it to admit or deny the allegations contained therein, and on that basis, denIES generally and specifically the allegations. 13. In response to Paragraph 13, Fresno County lacks sufficient information or belief to enable it to admit or deny the allegations contained therein, and on that basis, denies generally and specifically the allegations. 14. In response to Paragraph 14, Fresno County lacks sufficient information or belief to enable it to admit or deny the allegations contained therein, and on that basis, denies generally and specifically the allegations. 15. In response to Paragraph 15, Fresno County lacks sufficient information or belief to enable it to admit or deny the allegations contained therein, and on that basis, denies generally and specifically the allegations. 16. In response to Paragraph 16, Fresno County lacks sufficient information or belief to enable it to admit or deny the allegations contained therein, and on that basis, denies generally
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and specifically the allegations. 17. In response to Paragraph 17, Fresno County lacks sufficient information or belief
to enable it to admit or deny the allegations contained therein, and on that basis, denies generally and specifically the allegations.
18. In response to Paragraph 18, Fresno County lacks sufficient information or belief to enable it to admit or deny the allegations contained therein, and on that basis, denies generally and specifically the allegations.
19. In response to Paragraph 19, Fresno County lacks sufficient information or belief to enable it to admit or deny the allegations contained therein, and on that basis, denies generally and specifically the allegations.
20. In response to Paragraph 20, Fresno County lacks sufficient information or belief to enable it to admit or deny the allegations contained therein, and on that basis, denies generally and specifically the allegations.
21. In response to Paragraph 21, Fresno County lacks sufficient information or belief to enable it to admit or deny the allegations contained therein, and on that basis, denies generally and specifically the allegations.
22. In response to Paragraph 22, Fresno County lacks sufficient information or belief to enable it to admit or deny the allegations contained therein, and on that basis, denies generally and specifically the allegations.
23. In response to Paragraph 23, Fresno County lacks sufficient information or belief to enable it to admit or deny the allegations contained therein, and on that basis, denies generally and specifically the allegations.
24. In response to Paragraph 24, Fresno County lacks sufficient information or belief to enable it to admit or deny the allegations contained therein, and on that basis, denies generally and specifically the allegations.
25. In response to Paragraph 25, Fresno County lacks sufficient information or belief to enable it to admit or deny the allegations contained therein, and on that basis, denies generally and specifically the allegations.
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26. In response to Paragraph 26, Fresno County admits that some IHSS providers earn wages greater than $9.50 per hour and benefits greater than $.60 per hour. Fresno County lacks sufficient information or belief to enable it to admit or deny the remaining allegations.
27. In response to paragraph 27, Fresno County admits that Arnold Schwarzenegger is the Governor of the State of California.
28. In response to Paragraph 28, Fresno County admits that John Wagner is the Director of the California Department of Social Services (DSS). Fresno County lacks sufficient information or belief to enable it to admit or deny the remaining allegations contained therein, and on that basis, denies them.
29. In response to Paragraph 29, Fresno County admits that Defendant David Maxwell-Jolly is the Director of the California Department of Health Care Services (DHCS). Fresno County lacks sufficient information or belief to enable it to admit or deny the remaining allegations contained therein, and on that basis, denies them.
30. In response to Paragraph 30, Fresno County admits that Defendant John Chiang is the California State Controller. Fresno County lacks sufficient information or belief to enable it to admit or deny the remaining allegations contained therein and on that basis denies them.
31. In response to paragraph 31, Fresno County admits the allegations contained therein.
32. In response to paragraph 32, Fresno County admits that Fresno County In-Home Supportive Services Public Authority administers the IHSS program in Fresno county, but denies that it is solely responsible for determining the wages and benefits of Fresno County’s IHSS providers.
FACTUAL ALLEGATIONS 33. In response to paragraph 33, Fresno County responds that Welfare and Institutions Code section 12300(a) speaks for itself, and to the extent it contains legal conclusions, no admission or denial is required. Except as so limited, Fresno County lacks sufficient knowledge or information to form a belief as to the truth of the allegations contained therein and, on that basis, denies them.
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34. In response to paragraph 34, Fresno County responds that Welfare and Institutions Code section 12300(b)-(c) speaks for itself, and to the extent it contains legal conclusions, no admission or denial is required. Except as so limited, Fresno County lacks sufficient knowledge or information to form a belief as to the truth of the allegations contained therein and, on that basis, denies them.
35. In response to paragraph 35, Fresno County admits the allegations contained therein.
36. In response to paragraph 36, Fresno County responds that Welfare and Institutions Code section 12301.2 speaks for itself, and to the extent it contains legal conclusions, no admission or denial is required. Except as so limited, Fresno County lacks sufficient knowledge or information to form a belief as to the truth of the allegations contained therein and, on that basis, denies them.
37. In response to paragraph 37, Fresno County admits that the majority of IHSS providers are related to the person they serve. With regard to the remaining allegations, Fresno County lacks sufficient information to admit or deny these allegations, and on that basis generally and specifically denies them.
38. In response to paragraph 38, Fresno County responds that Welfare and Institutions Code sections 12306(b)-(c) and 12306.1(c)-(d) speak for themselves, and to the extent it contains legal conclusions, no admission or denial is required.
39. In response to paragraph 39, Fresno County responds that Welfare and Institutions Code section 12306.1(d)(5) speaks for itself, and to the extent it contains legal conclusions, no admission or denial is required.
40. In response to paragraph 40, Fresno County responds that Welfare and Institutions Code section 12301.6(a)(2), (c)(1) speaks for itself, and to the extent it contains legal conclusions, no admission or denial is required. Except as so limited, Fresno County lacks sufficient knowledge or information to form a belief as to the truth of the allegations contained therein and, on that basis, denies them.
41. In response to paragraph 41, Fresno County admits the Collective Bargaining 6
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Agreements may determine the level of wages and benefits to IHSS workers in some counties and that some Collective Bargaining Agreements are renegotiated every two or three years. Fresno County lacks sufficient information to admit or deny the remaining allegations contained therein and on that basis denies them.
42. In response to paragraph 42, Fresno County responds that Welfare and Institutions Code section 4132.95(j)(2)(A)(i) speaks for itself, and to the extent it contains legal conclusions, no admission or denial is required. Except as so limited, Fresno County lacks sufficient knowledge or information to form a belief as to the truth of the allegations contained therein and, on that basis, denies them.
43. In response to paragraph 43, Fresno County responds that the document speaks for itself, but to the extent that it would be possible to respond to the allegations stated or implied in paragraph 43, Fresno County denies them.
44. In response to paragraph 44, Fresno County responds that Welfare and Institutions Code section 12306.1(a)(b) speaks for itself, and to the extent it contains legal conclusions, no admission or denial is required. Except as so limited, Fresno County lacks sufficient knowledge or information to form a belief as to the truth of the allegations contained therein and, on that basis, denies them.
45. In response to paragraph 45, Fresno County admits that the California Legislature enacted Welfare and Institutions Code section 12306.1(d)(6). However, as to the remaining allegations, the Senate Bill speaks for itself, but to the extent that it would be possible to respond to the allegations stated or implied in paragraph 45, Fresno County denies them.
46. In response to paragraph 46, Fresno County lacks sufficient information to admit or deny this allegation, and on that basis denies it.
47. In response to paragraph 47, Fresno County lacks sufficient information to admit or deny this allegation, and on that basis denies it.
48. In response to paragraph 48, Fresno County admits that DSS issued an All-County Letter on or about April 2, 2009 which speaks for itself, but to the extent that it would be possible to respond to the allegations stated or implied in paragraph 47, Fresno County denies them.
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49. In response to paragraph 49, Fresno County states that the letter speaks for itself and admits that the letter was issued, but to the extent that it would be possible to respond to the allegations stated or implied in paragraph 49, Fresno County denies them.
50. In response to paragraph 50, Fresno County lacks sufficient information to admit or deny these allegations, and on that basis denies them.
51. In response to paragraph 51, Fresno County lacks sufficient information to admit or deny these allegations, and on that basis denies them.
52. In response to paragraph 52, Fresno County admits the allegations contained therein but has since taken steps consistent with the Court's Order to rescind the requested rate reduction.
53. In response to paragraph 53, Fresno County lacks sufficient information to admit or deny these allegations, and on that basis denies them.
54. In response to paragraph 54, Fresno County lacks sufficient information to admit or deny these allegations, and on that basis denies them.
55. In response to paragraph 55, Fresno County lacks sufficient information to admit or deny these allegations, and on that basis denies them.
56. In response to paragraph 56, Fresno County lacks sufficient information to admit or deny these allegations, and on that basis denies them.
57. In response to paragraph 57, Fresno County lacks sufficient information to admit or deny these allegations, and on that basis denies them.
58. In response to paragraph 58, Fresno County lacks sufficient information to admit or deny these allegations, and on that basis denies them.
59. In response to paragraph 59, Fresno County lacks sufficient information to admit or deny these allegations, and on that basis denies them.
60. In response to paragraph 60, Fresno County lacks sufficient information to admit or deny these allegations, and on that basis denies them.
61. In response to paragraph 61, Fresno County lacks sufficient information to admit or deny these allegations, and on that basis denies them.
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62. In response to paragraph 62, Fresno County lacks sufficient information to admit or deny these allegations, and on that basis denies them.
CLASS ACTION ALLEGATIONS 63. In response to paragraph 63, Fresno County responds that the allegation contains legal conclusions, so that no admission or denial is required. Except as so limited, Fresno County lacks sufficient knowledge or information to form a belief as to the truth of the allegations contained therein and, on that basis, denies them. 64. In response to paragraph 64, Fresno County lacks sufficient information to admit or deny this allegation, and on that basis generally and specifically denies it. 65. In response to paragraph 65, Fresno County lacks sufficient information to admit or deny this allegation, and on that basis generally and specifically denies it. 66. In response to paragraph 66 and its subparts, Fresno County responds that the allegations contain legal conclusions, so that no admission or denial is required. Except as so limited, Fresno County lacks sufficient knowledge or information to form a belief as to the truth of the allegations contained therein and, on that basis, denies them. 67. In response to paragraph 67, Fresno County lacks sufficient information to admit or deny these allegations, and on that basis denies them. 68. In response to paragraph 68, Fresno County lacks sufficient information to admit or deny these allegations, and on that basis denies them. 69. In response to paragraph 69, Fresno County responds that the allegation contains legal conclusions, so that no admission or denial is required. Except as so limited, Fresno County lacks sufficient knowledge or information to form a belief as to the truth of the allegations contained therein and, on that basis, denies them. 70. In response to paragraph 70, Fresno County responds that the allegation contains legal conclusions, so that no admission or denial is required. Except as so limited, Fresno County lacks sufficient knowledge or information to form a belief as to the truth of the allegations contained therein and, on that basis, denies them. 71. In response to paragraph 71, Fresno County responds that the allegation contains
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legal conclusions, so that no admission or denial is required. Except as so limited, Fresno County lacks sufficient knowledge or information to form a belief as to the truth of the allegations contained therein and, on that basis, denies them.
72. In response to paragraph 72, Fresno County responds that the allegation contains legal conclusions, so that no admission or denial is required. Except as so limited, Fresno County lacks sufficient knowledge or information to form a belief as to the truth of the allegations contained therein and, on that basis, denies them.
73. In response to paragraph 73, Fresno County lacks sufficient information to admit or deny these allegations, and on that basis denies them.
74. In response to paragraph 74, Fresno County lacks sufficient information to admit or deny these allegations, and on that basis denies them.
75. In response to paragraph 75, Fresno County lacks sufficient information to admit or deny these allegations, and on that basis denies them.
76. In response to paragraph 76, Fresno County lacks sufficient information to admit or deny these allegations, and on that basis denies them.
77. In response to paragraph 77, Fresno County lacks sufficient information to admit or deny these allegations, and on that basis denies them.
78. In response to paragraph 78, Fresno County responds that the allegation contains legal conclusions, so that no admission or denial is required. Except as so limited, Fresno County lacks sufficient knowledge or information to form a belief as to the truth of the allegations contained therein and, on that basis, denies them.
79. In response to paragraph 79, Fresno County responds that the allegation contains legal conclusions, so that no admission or denial is required. Except as so limited, Fresno County lacks sufficient knowledge or information to form a belief as to the truth of the allegations contained therein and, on that basis, denies them.
80. In response to paragraph 80, Fresno County responds that the allegation contains legal conclusions, so that no admission or denial is required. Except as so limited, Fresno County lacks sufficient knowledge or information to form a belief as to the truth of the allegations
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contained therein and, on that basis, denies them. FIRST CLAIM FOR RELIEF
81. In response to paragraphs 81 through 86, Fresno County states that it is not required to respond to these allegations because the claim is not asserted against it. To the extent that such response is deemed necessary, Fresno County lacks sufficient knowledge or information to form a belief as to the truth of the allegations contained therein and, on that basis, denies them.
SECOND CLAIM FOR RELIEF 82. In response to paragraphs 87 through 92, Fresno County states that it is not required to respond to these allegations because the claim is not asserted against it. To the extent that such response is deemed necessary, Fresno County lacks sufficient knowledge or information to form a belief as to the truth of the allegations contained therein and, on that basis, denies them.
THIRD CLAIM FOR RELIEF 83. In response to paragraph 93, Fresno County incorporates by reference as if fully set forth therein, each and every admission, denial and allegation in Paragraphs 1 through 92 inclusive. 84. In response to paragraph 94, Fresno County responds that the Americans With Disabilities Act, 42 U.S.C. §12132, speaks for itself. To the extent this allegation contains legal conclusions, no admission or denial is required. 85. In response to paragraph 95, Fresno County responds that the allegation contains legal conclusions, so that no admission or denial is required. 86. In response to paragraph 96, Fresno County responds it lacks sufficient information to admit or deny the allegations, and on that basis denies them. 87. In response to paragraph 97, Fresno County responds that the allegation contains legal conclusions, so that no admission or denial is required. Except as so limited, Fresno County lacks sufficient knowledge or information to form a belief as to the truth of the allegations contained therein and, on that basis, denies them. 88. In response to paragraph 98, Fresno County lacks sufficient information to admit or deny the allegations, and on that basis denies them.
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89. In response to paragraph 99, Fresno County responds that the allegations contain legal conclusions, so that no admission or denial is required. Except as so limited, Fresno County denies the allegations contained therein insofar as they address IHSS providers and recipients of IHSS care in Fresno County. Fresno County lacks sufficient knowledge or information to form a belief as to the truth of the remaining allegations contained therein and on that basis denies them.
90. In response to paragraph 100, Fresno County responds that the allegation contains legal conclusions, so that no admission or denial is required. Except as so limited, Fresno County denies the allegations contained therein.
91. In response to paragraph 101, Fresno County responds that the allegation contains legal conclusions, so that no admission or denial is required. Except as so limited, Fresno County denies the allegations contained therein.
FOURTH CLAIM FOR RELIEF 92. In response to paragraph 102, Fresno County incorporates by reference as if fully set forth herein, each and every admission, denial and allegation in Paragraphs 1 through 101, inclusive. 93. In response to paragraph 103, Fresno County responds that Section 504 of the Rehabilitation Act, 29 U.S.C. §794(a) speaks for itself. 94. In response to paragraph 104, Fresno County responds that the allegation contains legal conclusions, so that no admission or denial is required. 95. In response to paragraph 105, Fresno County lacks sufficient information to admit or deny the allegations contained therein and on that basis denies them. 96. In response to paragraph 106, Fresno County denies, generally and specifically, the allegations contained therein. 97. In response to paragraph 107, Fresno County lacks sufficient information to admit or deny the allegations contained therein and on that basis denies them. 98. In response to paragraph 108, Fresno County responds that the allegation contains legal conclusions, so that no admission or denial is required. Except as so limited, Fresno County denies the allegations contained therein and, on that basis, denies them.
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99. In response to paragraph 109, Fresno County responds that the allegation contains legal conclusions, so that no admission or denial is required. Except as so limited, Fresno County denies the allegations contained therein.
100. In response to paragraph 110, Fresno County responds that the allegation contains legal conclusions, so that no admission or denial is required. Except as so limited, Fresno County denies the allegations contained therein.
AFFIRMATIVE DEFENSES FIRST AFFIRMATIVE DEFENSE As a First Affirmative Defense, Fresno County asserts that Plaintiffs have failed to state a claim upon which relief may be granted. SECOND AFFIRMATIVE DEFENSE As a Second Affirmative Defense, Fresno County asserts that Plaintiffs lack standing to bring this action. THIRD SEPARATE AND AFFIRMATIVE DEFENSE As and for a Third Affirmative Defense, Fresno County asserts that any attempt to restrict Fresno County from reducing the wages paid to IHSS providers as provided for in the Collective Bargaining Agreement lawfully negotiated and entered into by Fresno County and SEIU-UHWest violates due process protections accorded to Fresno County and would violate California Welfare & Institution Code Section 12302 which permits local governments to contract with private individuals and entities to implement IHSS programs at the County level. FOURTH SEPARATE AND AFFIRMATIVE DEFENSE As and for a Fourth Affirmative Defense, Fresno County asserts that any attempts by Plaintiffs to prevent Fresno County from reducing wages to IHSS providers in accordance with the terms of the Memorandum of Understanding between Fresno County and SEIU-UHW-West, violates the doctrine of Home Rule. FIFTH SEPARATE AND AFFIRMATIVE DEFENSE As and for a Fifth Affirmative Defense, Fresno County asserts that at all times mentioned herein, Fresno County acted in good faith and with a reasonable belief as to the legalities of the
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things and matters attributed to Fresno County and that as a consequence thereof, no liability should be imposed on Fresno County.
SIXTH SEPARATE AND AFFIRMATIVE DEFENSE As and for a Sixth Affirmative Defense, Fresno County asserts that Fresno County has an independent basis on which to reduce wages to IHSS providers as provided for in the Memorandum of Understanding between Fresno County In-Home Supportive Services Public Authority and SEIU-UHW-West.
SEVENTH SEPARATE AND AFFIRMATIVE DEFENSE As and for a Seventh Affirmative Defense, Fresno County asserts that Plaintiffs’ Complaint is barred to the extent it attempts to interfere with the Memorandum of Understanding between Fresno County In-Home Supportive Services Public Authority and SEIU-UHW-West.
EIGHTH SEPARATE AND AFFIRMATIVE DEFENSE As and for a Eighth Affirmative Defense, Fresno County asserts that any wage reduction it may implement is substantially justified.
NINTH AFFIRMATIVE DEFENSE As and for an Ninth affirmative defense, Fresno County asserts that Plaintiffs’ claims are barred by Plaintiffs’ failure to exhaust the grievance procedure set forth in the Memorandum of Understanding between Fresno County In-Home Supportive Services Public Authority and SEIUUHW-West.
PRAYER WHEREFORE, Fresno County prays judgment as follows: 1. That the Complaint of Plaintiffs against Fresno County herein be dismissed; 2. That Plaintiffs take nothing by reason of the Complaint; 3. That Plaintiffs be granted no relief in this action; 4. That Fresno County has judgment against Plaintiffs; 5. That Fresno County recovers costs of suit incurred herein; 6. That Fresno County recovers reasonable attorneys' fees pursuant to State
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and Federal law; and, 7. For such other relief as the court may deem just and proper. DEMAND FOR JURY TRIAL Defendants FRESNO COUNTY and FRESNO COUNTY IN-HOME
SUPPORTIVE SERVICES PUBLIC AUTHORITY hereby reaffirms its demand for a trial by jury in the aforementioned action.

Dated: November 30, 2009

McCORMICK, BARSTOW, SHEPPARD, WAYTE & CARRUTH LLP

1469406.v1

By:

/s/ Michael G. Woods

Michael G. Woods

Timothy J. Buchanan

Attorneys for Defendant

COUNTY OF FRESNO and FRESNO

COUNTY IN-HOME SUPPORTIVE

SERVICES PUBLIC AUTHORITY

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 Case4:09-cv-02306-CW Document245 Filed01/04/10 Page1 of 20

1 STEPHEN P. BERZON (SBN 46540)

SCOTT A. KRONLAND (SBN 171693)

2 STACEY M. LEYTON (SBN 203827)

PEDER J. THOREEN (SBN 217081)

3 ANNE N. ARKUSH (SBN 254985)

EMILY B. WHITE (SBN 254294)

4 Altshuler Berzon LLP

177 Post Street, Suite 300

5 San Francisco, California 94108

Telephone: (415) 421-7151

6 Facsimile: (415) 362-8064

sberzon@altshulerberzon.com

7 skronland@altshulerberzon.com

sleyton@altshulerberzon.com

8 pthoreen@altshulerberzon.com

aarkush@altshulerberzon.com

9 ewhite@altshulerberzon.com

Attorneys for Plaintiffs

10

UNITED STATES DISTRICT COURT

11

FOR THE NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO/OAKLAND DIVISION

12

SIA CHUE YANG, PATSY MILLER, LYDIA ) Case No. C 09-02306 CW

13 DOMINGUEZ, ALEX BROWN, by and through )

his mother and next friend Lisa Brown, DONNA )

14 BROWN, CHLOE LIPTON, by and through her ) CLASS ACTION

conservator and next friend Julie Weissman-

)

15 Steinbaugh, HERBERT M. MEYER, LESLIE ) PLAINTIFFS’ NOTICE OF MOTION

GORDON, CHARLENE AYERS, WILLIE

) AND MOTION FOR CLASS

16 BEATRICE SHEPPARD, and ANDY

) CERTIFICATION; MEMORANDUM OF

MARTINEZ, on behalf of themselves and a class ) POINTS AND AUTHORITIES IN

17 of those similarly situated; SERVICE

) SUPPORT

EMPLOYEES INTERNATIONAL UNION

)

18 UNITED HEALTHCARE WORKERS WEST; ) Date: SUBMITTED ON THE PAPERS

SERVICE EMPLOYEES INTERNATIONAL ) Location: Courtroom 2, 4th Floor

19 UNION UNITED LONG-TERM CARE

)

WORKERS; SERVICE EMPLOYEES

)

20 INTERNATIONAL UNION LOCAL 521; and )

SERVICE EMPLOYEES INTERNATIONAL )

21 UNION CALIFORNIA STATE COUNCIL,

)

)

22

Plaintiffs,

)

)

23

v.

)

)

24 ARNOLD SCHWARZENEGGER, Governor of )

the State of California; JOHN A. WAGNER, )

25 Director of the California Department of Social )

Services; DAVID MAXWELL-JOLLY, Director )

26 of the California Department of Health Care

)

Services; JOHN CHIANG, California State

)

27 Controller; FRESNO COUNTY; and FRESNO )

COUNTY IN-HOME SUPPORTIVE SERVICES )

28 PUBLIC AUTHORITY,

)

)

Defendants.

)

)

Case4:09-cv-02306-CW Document245 Filed01/04/10 Page2 of 20

1

NOTICE OF MOTION AND MOTION FOR CLASS CERTIFICATION

2

Please take notice that Plaintiffs hereby do move the Court for class certification. Pursuant to the

3 Court’s order of November 18, 2009, Plaintiffs’ Motion for Class Certification will be submitted on the

4 papers without a hearing. Dkt. 241. Plaintiffs seek certification of the Plaintiff Class composed of:

5

All In-Home Supportive Services consumers residing in Alameda, Calaveras, Contra

Costa, Fresno, Marin, Mendocino, Monterey, Napa, Placer, Riverside, Sacramento, San

6

Benito, San Francisco, San Luis Obispo, San Mateo, Santa Barbara, Santa Clara, Santa

Cruz, Solano, Sonoma, and Yolo counties.

7

8

Plaintiffs also seek certification of a subclass (the “Fresno Subclass”) composed of:

9

All In-Home Supportive Services consumers residing in Fresno County.

10

Plaintiffs further request that this Court appoint Named Plaintiffs’ counsel to serve as class

11 counsel.

12

This Motion is made pursuant to Rule 23 of the Federal Rules of Civil Procedure, on the ground

13 that Plaintiffs meet the requirements for class certification under Rules 23(a) and 23(b)(2). This Motion

14 is based on this Notice of Motion and Motion, the accompanying Memorandum of Points and

15 Authorities in Support of Class Certification, declarations in support thereof, any oral argument that may

16 be heard, the complete files and record of this action, and such other and further matters as the Court

17 may properly consider.

18

19 Dated: January 4, 2010
20
21
22
23

Respectfully submitted,
STEPHEN P. BERZON SCOTT A. KRONLAND STACEY M. LEYTON PEDER J. THOREEN ANNE N. ARKUSH EMILY B. WHITE

24

By:

/s/

25

Emily B. White

Attorneys for Plaintiffs

26

27

28

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1
TABLE OF CONTENTS 2

3 BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

4

I. California’s IHSS Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

5

II. Enactment Of Section 12306.1(d)(6) To Cut IHSS Provider Rates . . . . . . . . . . . . . . . . . 3

6

III. Procedural Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

7 LEGAL STANDARD . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

8 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

9

I. Plaintiffs Meet The Standards For Certification Under Rule 23(a). . . . . . . . . . . . . . . . . . 5

10

A. The Proposed Class Meets The Numerosity Requirement of Rule 23(a)(1). . . . . 6

11

B. There Are Questions Of Law And Fact Common To The Class . . . . . . . . . . . . . . 6

12

C. The Named Plaintiffs’ Claims Are Typical Of The Claims Of The Class . . . . . . . 9

13

D. The Named Plaintiffs And Their Attorneys Will Fairly And Adequately Protect

14

The Interests Of The Class . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

15

1. The Named Plaintiffs’ Interests Are Not Antagonistic To The Class . . . 10

16

2. Plaintiffs’ Counsel Will Vigorously Prosecute This Action . . . . . . . . . . 11

17

II. This Case Satisfies Rule 23(b)(2) Because Defendants Have Acted On Grounds Generally

18

Applicable To The Class, Making Final Injunctive And Declaratory Relief With Respect

19

To The Class As A Whole Appropriate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

20

III. The Court Should Designate Plaintiffs’ Counsel As Class Counsel Pursuant To Rule

21

23(g)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

22 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

23

24

25

26

27

28

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1

TABLE OF AUTHORITIES

2

FEDERAL CASES

3 Amchem Products v. Windsor, 521 U.S. 591 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
4 Armstrong v. Davis, 275 F.3d 849 (9th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 8
5 Baby Neal v. Casey, 43 F.3d 48 (3d Cir. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
6 Blackie v. Barrack, 524 F.2d 891 (9th Cir. 1975) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
7 Colbert v. Blagojevich, 2008 WL 4442597 (N.D. Ill. Sept. 29, 2008) . . . . . . . . . . . . . . . . . . . . . . . . 8
8 Cyrus v. Walker, 233 F.R.D. 467 (S.D. W.Va. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 13
9 Darling v. Bowen, 685 F. Supp. 1125 (W.D. Mo. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
10 Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
11 Eisenberg v. Gagnon, 766 F.2d 770 (3d Cir. 1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
12 Elliott v. Weinberger, 564 F.2d 1219 (9th Cir. 1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
13 General Telegraph Co. of Southwest v. Falcon, 457 U.S. 147 (1982) . . . . . . . . . . . . . . . . . . . 6, 7, 10
14 Gulf Oil Co. v. Bernard, 452 U.S. 89 (1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
15 Hanlon v. Chrysler Corp., 150 F.3d 1011 (9th Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 10
16 Harris v. Palm Springs Alpine Estates, Inc., 329 F.2d 909 (9th Cir. 1964) . . . . . . . . . . . . . . . . . . . . 7
17 Hernandez v. Medows, 209 F.R.D. 665 (S.D. Fla. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
18 Jordan v. County of Los Angeles, 669 F.2d 1311 (9th Cir. 1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
19 Kerrigan v. Philadelphia Board of Election, 248 F.R.D. 470 (E.D. Pa. 2008) . . . . . . . . . . . . . . . . . . 8
20 Lerwill v. Inflight Motion Pictures, Inc., 582 F.2d 507 (9th Cir. 1978) . . . . . . . . . . . . . . . . . . . . . . 11
21 Long v. Benson, 2008 WL 4571904 (N.D. Fla. Oct. 14, 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
22 Lovely H. v. Eggleston, 235 F.R.D. 248 (S.D.N.Y. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
23 M.A.C. v. Betit, 284 F. Supp. 2d 1298 (D. Utah 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
24 Park v. Ralph's Grocery Co., 254 F.R.D. 112 (C.D. Cal. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
25 Perez-Funez v. District Director, 611 F. Supp. 990 (C.D. Cal. 1984) . . . . . . . . . . . . . . . . . . . . . . . . 7
26 Risinger v. Concannon, 201 F.R.D. 16 (D. Me. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
27
Rodriguez v. Hayes, 578 F.3d 1032 (9th Cir. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 28

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1 Six (6) Mexican Workers v. Arizona Citrus Growers, 904 F.2d 1301 (9th Cir. 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
2 Staton v. Boeing Co., 327 F.3d 938 (9th Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
3 Stolz v. United Board of Carpenters and Joiners of America, 620 F. Supp.
4 396 (D. Nev. 1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

5 Thomas & Thomas Rodmakers, Inc. v. Newport Adhesives & Composites, Inc., 209 F.R.D. 159 (C.D. Cal. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
6 Valley Drug Co. v. Geneva Pharms., Inc., 350 F.3d 1181 (11th Cir. 2003) . . . . . . . . . . . . . . . . . . . 12
7 Von Colln v. County of Ventura, 189 F.R.D. 583 (C.D. Cal. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . 8
8 Wehner v. Syntex Corp., 117 F.R.D. 641 (N.D. Cal. 1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
9 Williams v. Blagojevich, 2006 WL 3332844 (N.D. Ill. Nov. 13, 2006) . . . . . . . . . . . . . . . . . . . . . . . . 8
10

11

FEDERAL STATUTES

12 29 U.S.C. §794(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 9, 10

13 42 U.S.C. §1396a(a)(30)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 5

14 42 U.S.C. §1396d(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

15 42 U.S.C. §12132 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 9, 10

16 Fed. R. Civ. P. 23(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

17 Fed. R. Civ. P. 23(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

18 Fed. R. Civ. P. 23(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

19 Fed. R. Civ. P. 23(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

20 Fed. R. Civ. P. 23(b)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

21 Fed. R. Civ. P. 23(b)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

22 Fed. R. Civ. P. 23(b)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 13

23 Fed. R. Civ. P. 23(g)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

24 Fed. R. Civ. P. 23(g)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

25

26

STATE STATUTES

27 Cal. Welf. & Inst. Code §12300(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

28 Cal. Welf. & Inst. Code §12300(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

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1 Cal. Welf. & Inst. Code §12300.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

2 Cal. Welf. & Inst. Code §12301.6(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

3 Cal. Welf. & Inst. Code §12301.6(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

4 Cal. Welf. & Inst. Code §12306 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

5 Cal. Welf. & Inst. Code §12306.1(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

6 Cal. Welf. & Inst. Code §12306.1(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 4, 12

7

8

MISCELLANEOUS

9 7A Wright, Miller & Kane, Federal Practice and Procedure: Civil, §1759 (3d ed. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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1

MEMORANDUM OF POINTS AND AUTHORITIES

2

Plaintiffs, In-Home Supportive Services (“IHSS”) consumers and unions representing IHSS

3 providers, brought this suit to challenge the reduction of rates paid to IHSS providers in violation of

4 federal law. The Named Plaintiffs represent a prospective class of tens of thousands of low income

5 seniors and people with disabilities who receive services from IHSS providers through California’s

6 Medi-Cal program.

7

Through this suit, Plaintiffs seek declaratory and injunctive relief to enforce (1) the procedural

8 and substantive requirements of the Medicaid Act, 42 U.S.C. §1396a(a)(30)(A) and (2) the anti-

9 discrimination provisions of the Americans with Disabilities Act of 1990, 42 U.S.C. §12132 and Section

10 504 of the Rehabilitation Act of 1973, 29 U.S.C. §794(a).

11

By this motion, for the First, Second, Third, and Fourth Claims of Relief, as asserted against

12 Defendants Arnold Schwarzenegger, John A. Wagner, David Maxwell-Jolly, and John Chiang (“State

13 Defendants”), Plaintiffs seek certification of the Plaintiff Class composed of:

14

All In-Home Supportive Services consumers residing in Alameda, Calaveras, Contra

Costa, Fresno, Marin, Mendocino, Monterey, Napa, Placer, Riverside, Sacramento, San

15

Benito, San Francisco, San Luis Obispo, San Mateo, Santa Barbara, Santa Clara, Santa

Cruz, Solano, Sonoma, and Yolo counties.

16

17

For the Third and Fourth Claims of Relief, as asserted against Defendants Fresno County and

18 Fresno County In-Home Supportive Services Public Authority (“Fresno Defendants”), Plaintiffs seek

19 certification of a subclass (the “Fresno Subclass”) composed of:

20

All In-Home Supportive Services consumers residing in Fresno County.

21

Because all of the Named Plaintiffs have the same legal interest in this case and Plaintiffs seek

22 only equitable relief, this is exactly the type of lawsuit that should be certified as a class action pursuant

23 to Federal Rule of Civil Procedure 23(b)(2). We demonstrate below that the criteria for class

24 certification are met.

25

BACKGROUND

26

I. California’s IHSS Program

27

California established the IHSS program to provide assistance with the tasks of daily living to

28 low-income elderly and/or disabled persons “who cannot safely remain in their homes or abodes of their

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1 own choosing unless these services are provided.” Cal. Welf. & Inst. Code §12300(a). The types of

2 services provided through the program include assistance with bathing, dressing, cooking, feeding,

3 bowel and bladder care, self-administration of medication, and cleaning. Id. §§12300(b), (c). The

4 program also authorizes, under some circumstances, protective supervision for mentally impaired

5 individuals and educational and paramedical services such as the administration of medication and

6 injections. Id. §§12300(b), 12300.1.

7

By preventing the unnecessary institutionalization of individuals who can, with assistance,

8 remain in their homes and in the community, the IHSS program conserves state resources. In addition,

9 elderly and disabled individuals who remain in community-based settings are able to maintain the

10 autonomy and quality of life that such settings offer. Prelim. Inj. Order at 10-11, Dkt. 131.

11

The IHSS program is administered by counties, which may establish public authorities to provide

12 for the delivery of IHSS services. Cal. Welf. & Inst. Code §12301.6(a). These public authorities are

13 considered employers of IHSS providers for some purposes, including bargaining about providers’

14 wages and benefits. Id. §12301.6(c)(1). However, individual consumers hire, fire, and supervise their

15 own IHSS providers. Id. Consumers may find IHSS providers through personal connections, registries

16 maintained by county public authorities, or any other method. Id. §§12301.6(e)(1), (h).

17

The rates paid to IHSS providers (i.e., wages and benefits) affect the difficulty of finding

18 providers. Because the vast majority of IHSS consumers receive services as part of California’s

19 Medicaid program (“Medi-Cal”), the federal government pays a certain percentage of these costs. See

20 42 U.S.C. §1396d(b). Of the remaining cost, often referred to as the “non-federal share,” the county

21 pays 35 percent and the state pays 65 percent of wages up to the current statutory cap of $12.10 per hour,

22 above which the State will not share the costs. Cal. Welf. & Inst. Code §§12306, 12306.1(c)-(d).

23

The rates paid to IHSS providers vary by county. IHSS providers in many counties are paid

24 wages that exceed $9.50 per hour and/or a combination of wages and benefits that exceed $10.10 per

25 hour. These counties include Alameda, Calaveras, Contra Costa, Fresno, Marin, Mendocino, Monterey,

26 Napa, Placer, Riverside, Sacramento, San Benito, San Francisco, San Luis Obispo, San Mateo, Santa

27

28

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1 Barbara, Santa Clara, Santa Cruz, Solano, Sonoma, and Yolo counties. Golubock Decl., Ex. B (Dkt.

2 19).1

3

II. Enactment Of Section 12306.1(d)(6) To Cut IHSS Provider Rates

4

In early 2009, the California Legislature held the Third Extraordinary Legislative Session to

5 adopt emergency budget measures. As part of this session, the Legislature enacted Senate Bill No. 6

6 (“SBX3 6”), §9, which amended Cal. Welf. & Inst. Code §12306.1(d) to add the following provision

7 (“Section 12306.1(d)(6)”):

8

(6) Notwithstanding [other provisions of §12306.1(d)], the state shall participate as

provided in subdivision (c) in a total cost of wages up to nine dollars and fifty cents

9

($9.50) per hour and in individual health benefits up to sixty cents ($0.60) per hour. This

paragraph shall become operative on July 1, 2009.

10

11

The provision reduces the maximum IHSS provider rate in which the State will participate from

12 $12.10 per hour to $10.10 per hour ($9.50 in wages; $0.60 in benefits). The provision was to become

13 effective July 1, 2009.

14

In response to Section 12306.1(d)(6), at least 12 counties that paid wages greater than $9.50 per

15 hour submitted Rate Change Requests to CDSS to reduce wages. McDevitt Decl. ¶¶2-4 & Ex. A; Nam

16 Decl. ¶¶2, 4-6, 9; Roth Decl. ¶¶4(b), 5(a), (b), (e), 6. Defendant Fresno County IHSS Public Authority

17 submitted a Rate Change Request that hourly wages be reduced from $10.25 to $9.50 and benefits from

18 $.85 to $.60. Pl. RJN, Ex. T. (Dkt. 53-21).2 These reduced rates were to take effect July 1, 2009.

19

III. Procedural Background

20

On June 4, 2009, Plaintiffs, the individually named IHSS consumers and unions representing

21 IHSS providers, filed this action and moved for entry of a preliminary injunction prohibiting State

22 Defendants from implementing Section 12306.1(d)(6) pending a final decision on the merits. See Dkt.

23 5. Plaintiffs also sought to enjoin Fresno Defendants from implementing the rate reduction for IHSS

24 providers that was scheduled to take effect on July 1, 2009. Id.

25

26

1For the Court’s convenience, Plaintiffs are refiling with this motion those declarations filed in conjunction with Plaintiffs’ Motion for Preliminary Injunction that also support the present application.

27

2“Pl. RJN” refers to Plaintiffs’ Request for Judicial Notice, filed in conjunction with Plaintiffs’

28 Motion for Preliminary Injunction. For the Court’s convenience, Plaintiffs have refiled Ex. T of Pl. RJN as Ex. D to the Declaration of Emily White filed in support of this motion.

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1

On June 26, 2009, the Court enjoined State Defendants from implementing Section

2 12306.1(d)(6). Prelim. Inj., Dkt. 130. The Court found that Plaintiffs had demonstrated a strong

3 likelihood of success on their claim that State Defendants failed to consider the factors set forth in 42

4 U.S.C. §1396a(a)(30)(A) (“Section 30(A)”) before enacting Section 12306.1(d)(6), in violation of the

5 federal Medicaid Act. Order Granting Prelim. Inj. at 10, Dkt. 131. This Court further found that, absent

6 injunctive relief, both IHSS consumers and providers would suffer irreparable harm as a result of the

7 wage reductions caused by the implementation of Section 12306.1(d)(6) without first conducting the

8 analysis required by Section 30(A). Prelim. Inj. at 1, Dkt. 130. The Court reached only Plaintiffs’ claim

9 against State Defendants under Section 30(A) and did not enjoin Fresno Defendants.

10

Plaintiffs subsequently filed two motions requesting a more specific preliminary injunction

11 and/or contempt sanctions against State Defendants. These motions were prompted by State

12 Defendants’ conduct and sought to ensure compliance with the terms and intent of the Court’s

13 injunction. Plaintiffs filed the first of these motions after State Defendants made clear that, despite the

14 injunction, they intended to give effect to the rate reductions that had been submitted in implementation

15 of Section 12306.1(d)(6). Dkt. 144. On July 13, 2009, the Court issued an amended preliminary

16 injunction clarifying State Defendants’ obligation to “rescind the State’s approval of all county rate

17 reduction requests which were submitted after February 20, 2009, to be effective July 1, 2009, and

18 reinstate the State’s approval of the pre-July rates.” Dkt. 172.

19

Plaintiffs filed a second motion when, instead of rescinding approval of all rate requests

20 submitted during the relevant time period, State Defendants instead asked counties whether they wanted

21 to return to the pre-July 1 wage rate; for the two counties that said they did not (including Fresno

22 County), the State intended to implement the reduced rate effective, retroactively, to July 1. Dkt. 181.

23 On July 24, 2009, the Court issued a second order clarifying the preliminary injunction, reaffirming that

24 the State “must rescind its prior approval of” the Rate Change Requests that had been submitted in

25 implementation of Section 12306.1(d)(6) by the two counties that still wanted to reduce rates for other

26 reasons. Dkt. 203. The Court further ordered the State to pay all IHSS providers in the remaining

27 affected counties their full, pre-July 1 rate by a specified date. Id.

28

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Case4:09-cv-02306-CW Document245 Filed01/04/10 Page11 of 20

1

State Defendants have filed an appeal with the United States Court of Appeals for Ninth Circuit

2 from the preliminary injunction as well as the subsequent orders clarifying the preliminary injunction.

3 Dkt. 138. Plaintiffs now seek certification of their class and subclass.

4

LEGAL STANDARD

5

“Class actions serve an important function in our system of civil justice.” Gulf Oil Co. v.

6 Bernard, 452 U.S. 89, 99 (1981). While the decision whether to certify a class is committed to the

7 district court’s discretion, Six (6) Mexican Workers v. Arizona Citrus Growers, 904 F.2d 1301, 1304 (9th

8 Cir. 1990), in a “doubtful case,” the court should err “in favor of allowing a class action,” Eisenberg v.

9 Gagnon, 766 F.2d 770, 785 (3d Cir. 1985) (internal quotation marks and citation omitted).

10

In assessing the propriety of certification, “[t]he court is bound to take the substantive allegations

11 of the complaint as true.” Blackie v. Barrack, 524 F.2d 891, 901 n.17 (9th Cir. 1975). “[I]t may be

12 necessary for the court to probe behind the pleadings before coming to rest on the certification question,”

13 Gen. Tel. Co. of Southwest v. Falcon, 457 U.S. 147, 160 (1982), but the court has no authority “to

14 conduct a preliminary inquiry into the merits of a suit in order to determine whether it may be

15 maintained as a class action,” Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177 (1974).

16

Class certification is proper if the four requirements of Federal Rule of Civil Procedure 23(a) and

17 the requirements of any one of the three prongs of Federal Rule of Civil Procedure 23(b) are satisfied.

18 Gen. Tel., 457 U.S. at 161; 7A Wright, Miller & Kane, Federal Practice and Procedure: Civil, §1759

19 (3d ed. 2005).

20

ARGUMENT

21

I. Plaintiffs Meet The Standards For Certification Under Rule 23(a).

22

The threshold prerequisites for class certification set forth in Federal Rule of Civil Procedure

23 23(a) are that: “(1) the class is so numerous that joinder of all members is impracticable; (2) there are

24 questions of law or fact common to the class; (3) the claims or defenses of the representative parties are

25 typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately

26 protect the interests of the class.” Fed. R. Civ. P. 23(a). These elements, commonly termed the

27 numerosity, commonality, typicality, and adequacy requirements, see Thomas & Thomas Rodmakers,

28

5

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Case4:09-cv-02306-CW Document245 Filed01/04/10 Page12 of 20

1 Inc. v. Newport Adhesives & Composites, Inc., 209 F.R.D. 159, 163 (C.D. Cal. 2002), are all present

2 here.

3

A. The Proposed Class Meets The Numerosity Requirement of Rule 23(a)(1).

4

To satisfy the numerosity requirement, joinder of all class members need not be impossible, only

5 impracticable. Harris v. Palm Springs Alpine Estates, Inc., 329 F.2d 909, 913-14 (9th Cir. 1964).

6 Impracticability addresses the expense and burden, to the parties and the court, of litigating each claim

7 individually, rendering the case difficult or inconvenient without joining all members of the class. Id.

8 Courts in the Ninth Circuit have found that classes of far fewer than 100 members are sufficiently

9 numerous to render joinder impracticable. See Perez-Funez v. Dist. Dir., 611 F. Supp. 990, 995 (C.D.

10 Cal. 1984) (“Classes consisting of 25 members have been held large enough to justify certification.”).

11 The proposed Plaintiff Class comprises approximately tens of thousands of low income seniors and

12 people with disabilities who receive services from IHSS providers through California’s Medi-Cal

13 program. See, e.g., State Opp. to Pl. Mot. for Contempt at 3 n.4 (Dkt. 195); White Decl. ¶2, Ex. A. The

14 Fresno Subclass comprises approximately 12,000 residents of Fresno County who receive services from

15 IHSS providers. White Decl. ¶¶2-3, Ex. A & Ex. B. The large size of the class and subclass thus clearly

16 makes joinder impracticable.

17

Additionally, many of the class members are elderly and suffer from serious health conditions,

18 making their participation as individual joined plaintiffs onerous or impossible. See Darling v. Bowen,

19 685 F. Supp. 1125, 1127 (W.D. Mo. 1988) (certification of class appropriate where class members were

20 “physically disabled” and “elderly”). Accordingly, this case is well-suited for class-based litigation.

21

B. There Are Questions Of Law And Fact Common To The Class.

22

“[C]ommonality is satisfied where the lawsuit challenges a system-wide practice or policy that

23 affects all of the putative class members.” Armstrong v. Davis, 275 F.3d 849, 868 (9th Cir. 2001). A

24 class action is particularly appropriate when the common issues involved “turn on questions of law

25 applicable in the same manner to each member of the class.” Gen. Tel., 457 U.S. at 155 (internal

26 quotation marks and citation omitted). The commonality requirement “has been construed permissively.

27 All questions of fact and law need not be common to satisfy the rule. The existence of shared legal

28

6

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Case4:09-cv-02306-CW Document245 Filed01/04/10 Page13 of 20

1 issues with divergent factual predicates is sufficient . . . .” Hanlon v. Chrysler Corp., 150 F.3d 1011,

2 1019 (9th Cir. 1998).

3

In the civil rights context, the Ninth Circuit has held that, where the class challenges a system-

4 wide policy, “individual factual differences among the individual litigants or groups of litigants will not

5 preclude a finding of commonality.” Armstrong, 275 F.3d at 868. Here, while the ultimate effect of the

6 cut in wages on each individual class member may be different, “the legality of defendant’s practice or

7 policies . . . [is] . . . a question common to the class, and the existence of different factual questions with

8 respect to various [plaintiffs] will not defeat satisfaction of the commonality requirement.” Jordan v.

9 County of Los Angeles, 669 F.2d 1311, 1320 (9th Cir. 1982), vacated and rem’d on other grounds, 459

10 U.S. 810 (1982).

11

Moreover, in a Rule 23(b)(2) action, courts apply the commonality requirement more liberally

12 because a class action seeking declaratory or injunctive relief generally challenges policies and practices

13 affecting an identifiable group in the same way. See, e.g., Von Colln v. County of Ventura, 189 F.R.D.

14 583, 591 (C.D. Cal. 1999) (“[W]hen addressing commonality of class members proposed under Rule

15 23(b)(2), a court may employ a liberal definition of commonality.”).

16

Class actions are routinely certified in cases similar to this one, including those that allege

17 violation of the Medicaid Act, the ADA, or Section 504. See, e.g., Park v. Ralph’s Grocery Co., 254

18 F.R.D. 112, 121 (C.D. Cal. 2008) (holding certification is appropriate where disabled individuals

19 challenged defendant’s common policy and practice under the ADA); Kerrigan v. Philadelphia Bd. of

20 Election, 248 F.R.D. 470, 477 (E.D. Pa. 2008) (certifying class of plaintiffs seeking injunctive relief who

21 challenged municipal policy under the ADA and Rehabilitation Act); Long v. Benson, 2008 WL

22 4571904, *1-*2 (N.D. Fla. Oct. 14, 2008) (certifying class where plaintiffs alleged that the State of

23 Florida operated its Medicaid program in violation of Olmstead principles); Colbert v. Blagojevich, 2008

24 WL 4442597, *4-*9 (N.D. Ill. Sept. 29, 2008) (certifying class where plaintiffs brought Olmstead claims

25 against Illinois officials); Williams v. Blagojevich, 2006 WL 3332844, *2-*3 (N.D. Ill. Nov. 13, 2006)

26 (same); Lovely H. v. Eggleston, 235 F.R.D. 248, 256-57 (S.D.N.Y. 2006) (certifying class of welfare

27 recipients with disabilities who alleged Olmstead segregation under the ADA and Rehabilitation Act);

28 Cyrus v. Walker, 233 F.R.D. 467, 471 (S.D. W.Va. 2005) (certifying class where plaintiffs alleged that

7

Plaintiffs’ Motion for Class Certification; Memorandum of Points and Authorities in Support, Case No. C09-02306 CW

Case4:09-cv-02306-CW Document245 Filed01/04/10 Page14 of 20

1 changes in Medicaid services eligibility determination led to termination of benefits in violation of due

2 process); Hernandez v. Medows, 209 F.R.D. 665, 669 (S.D. Fla. 2002) (certifying class of Medicaid

3 beneficiaries, noting that “factual differences between class members do not preclude a finding of

4 commonality, as long as common questions of law exist”); Risinger v. Concannon, 201 F.R.D. 16, 20

5 (D. Me. 2001) (finding commonality where plaintiffs alleged that defendant’s provision of services

6 violated Medicaid requirements). In the present case, there are numerous common issues of fact and

7 law.

8

The common issues of law and fact for the Plaintiff Class include the following:

9

•

Whether the State failed to adequately consider the impact of Section 12306.1(d)(6) on

10

efficiency, economy, quality of care, and access to services prior to the enactment of the

11

statute, in violation of Section 30(A) of the federal Medicaid Act;

12

•

Whether the IHSS provider wages and benefits that would result from the implementation

13

of Section 12306.1(d)(6) would be inconsistent with Medicaid’s mandated quality of care,

14

and would not be sufficient to enlist enough IHSS providers so that care and services are

15

available at least to the extent that such care and services are available to the general

16

population in the geographic area, in violation of Section 30(A) of the federal Medicaid

17

Act;

18

•

Whether the implementation of Section 12306.1(d)(6) would violate the rights of class

19

members to be free from discrimination on the basis of their disability under the ADA, 42

20

U.S.C. §12132, by forcing disabled individuals who could otherwise remain in their

21

homes to enter nursing homes or other residential institutions;

22

•

Whether the implementation of Section 12306.1(d)(6) would violate the rights of class

23

members to be free from discrimination on the basis of their disability under Section 504

24

of the Rehabilitation Act, 29 U.S.C. §794(a), by forcing disabled individuals who could

25

otherwise remain in their homes to enter nursing homes or other residential institutions.

26

The following are common issues of law and fact regarding the Fresno Subclass:

27

•

Whether the reduction of the IHSS wage from $10.25 per hour to $9.50 per hour and the

28

IHSS benefits rate from $.85 per hour to $.60 per hour would violate the rights of

8

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Case4:09-cv-02306-CW Document245 Filed01/04/10 Page15 of 20

1

subclass members to be free from discrimination on the basis of their disability under the

2

ADA, 42 U.S.C. §12132, by forcing disabled individuals who could otherwise remain in

3

their homes to enter nursing homes or other residential institutions;

4

•

Whether the reduction of the IHSS wage from $10.25 per hour to $9.50 per hour and the

5

IHSS benefits rate from $.85 per hour to $.60 per hour would violate the rights of

6

subclass members to be free from discrimination on the basis of their disability under

7

Section 504 of the Rehabilitation Act, 29 U.S.C. §794(a), by forcing disabled individuals

8

who could otherwise remain in their homes to enter nursing homes or other residential

9

institutions.

10

The foregoing, numerous common questions of law and fact satisfy Rule 23(a)(2).

11

C. The Named Plaintiffs’ Claims Are Typical Of The Claims Of The Class

12

A representative plaintiff’s claims are typical of a class where “they are reasonably co-extensive

13 with those of absent class members; they need not be substantially identical.” Hanlon, 150 F.3d at 1020.

14 The primary purpose of the typicality requirement is to ensure that the nature of the claims brought by

15 the class representative are so interrelated that the interests of the class members will be fairly and

16 adequately protected in their absence. Gen. Tel., 457 U.S. at 157 n.13. “The commonality and typicality

17 requirements of Rule 23(a) tend to merge. Both serve as guideposts for determining whether under the

18 particular circumstances maintenance of a class action is economical and whether the named plaintiff’s

19 claim and the class claims are so interrelated that the interests of the class members will be fairly and

20 adequately protected in their absence.” Id.

21

The claims of Named Plaintiffs Yang, Miller, Dominguez, Alex Brown, Donna Brown, Lipton,

22 Meyer, Gordon, Ayers, Sheppard, and Andy Martinez mirror the claims of the Plaintiff Class as a whole.

23 Yang Decl. ¶¶4-9; Miller Decl. ¶¶3-8; Dominguez Decl. ¶¶3-7; L. Brown Decl. ¶¶5, 8-13; D. Brown

24 Decl. ¶¶3-9; Weissman-Steinbaugh Decl. ¶¶4-8; Meyer Decl. ¶¶2, 6-9; Gordon Decl. ¶¶2-7; Ayers Decl.

25 ¶¶3-9; Sheppard Decl. ¶¶3-9; A. Martinez Decl. ¶¶3-8; First Am. Comp. ¶68. Each of the Named

26 Plaintiffs is a recipient of the IHSS services that allow him or her to remain safely at home. Yang Decl.

27 ¶¶4, 5, 9; Miller Decl. ¶5 Dominguez Decl. ¶4; L. Brown Decl. ¶¶5, 8; D. Brown Decl. ¶5; Weissman-

28 Steinbaugh Decl. ¶4; Meyer Decl. ¶¶4-6; Gordon Decl. ¶¶2-3; Ayers Decl. ¶7; Sheppard Decl. ¶¶5-6; A.

9

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Case4:09-cv-02306-CW Document245 Filed01/04/10 Page16 of 20

1 Martinez Decl. ¶¶5-8 . The Named Plaintiffs are threatened by the same risk of harm, as they face losing

2 critical services and possible institutionalization on account of Defendants’ conduct. Yang Decl. ¶9;

3 Miller Decl. ¶8; Dominguez Decl. ¶7; L. Brown Decl. ¶¶10-13; D. Brown Decl. ¶8; Weissman-

4 Steinbaugh Decl. ¶7; Meyer Decl. ¶9; Gordon Decl. ¶7; Ayers Decl. ¶9; Sheppard Decl. ¶8; A. Martinez

5 Decl. ¶¶5-7. The Named Plaintiffs, like the proposed Plaintiff Class as a whole, claim that State

6 Defendants’ practices violate their rights under federal law. First Am. Comp. ¶¶81-110. Moreover, the

7 Named Plaintiffs seek the same relief as all class members. First Am. Comp. ¶71.

8

Furthermore, the claims of Named Plaintiffs Yang, Miller, Alex Brown and Andy Martinez are

9 identical to the claims of the Fresno Subclass as a whole. Yang Decl. ¶¶4-9; Miller Decl. ¶¶3-8; L.

10 Brown Decl. ¶¶5, 8-13 A. Martinez Decl. ¶¶3-8; First Am. Comp. ¶77. The Named Plaintiffs in the

11 Fresno Subclass all face the same risk of harm, as Fresno Defendants’ conduct threatens to cut services

12 critical to the Named Plaintiffs and their ability to live independently. Yang Decl. ¶9; Miller Decl. ¶8; L.

13 Brown Decl. ¶¶10-13 A. Martinez Decl. ¶¶5-7. Members of the Fresno Subclass all assert that Fresno

14 Defendants’ wage reduction violates their rights under federal law. First Am. Comp. ¶¶93-110. The

15 Named Plaintiffs seek the same relief as all subclass members. First Am. Comp. ¶80. Thus, the

16 requirements of Rule 23(a)(3) are met for both the proposed class and the proposed subclass.

17

D. The Named Plaintiffs And Their Attorneys Will Fairly And Adequately

Protect The Interests Of The Class

18

19

Rule 23(a)(4) requires that the Named Plaintiffs “fairly and adequately represent the interests of

20 the class.” Fed. R. Civ. P. 23(a)(4). Courts have interpreted the Rule 23(a)(4) inquiry to encompass two

21 questions: “(1) Do the representative plaintiffs and their counsel have any conflicts of interest with other

22 class members, and (2) will the representative plaintiffs and their counsel prosecute the action vigorously

23 on behalf of the class?” Staton v. Boeing Co., 327 F.3d 938, 957 (9th Cir. 2003). Plaintiffs and their

24 counsel satisfy these requirements.

25

1. The Named Plaintiffs’ Interests Are Not Antagonistic To The Class

26

The class representatives do not have any interests that are antagonistic to the interests of the

27 class because they share the same interests and this lawsuit is not collusive. See Lerwill v. Inflight

28 Motion Pictures, Inc., 582 F.2d 507, 512 (9th Cir. 1978). Moreover, “the existence of minor conflicts

10

Plaintiffs’ Motion for Class Certification; Memorandum of Points and Authorities in Support, Case No. C09-02306 CW

Case4:09-cv-02306-CW Document245 Filed01/04/10 Page17 of 20

1 alone will not defeat a party’s claim to class certification: the conflict must be a ‘fundamental’ one going

2 to the specific issues in controversy.” Valley Drug Co. v. Geneva Pharms., Inc., 350 F.3d 1181, 1189

3 (11th Cir. 2003); see also 1 Alba Conte & Herbert Newberg, Newberg on Class Actions §3.26 at 3-435

4 (4th ed. 2002). “A fundamental conflict exists where some party members claim to have been harmed

5 by the same conduct that benefitted other members of the class.” Valley Drug Co., 350 F.3d at 1189.

6 Here, there is no conflict whatsoever among Plaintiffs, let alone a conflict that is “fundamental” in

7 nature or that goes to the specific issues in controversy. See id. Additionally, no conflicts exist between

8 Plaintiffs’ counsel and the proposed class members that would compromise their ability to represent this

9 class and subclass. All Plaintiffs and their counsel have the same, singular objective: to enjoin

10 implementation of Cal. Welf. & Inst. Code §12306.1(d) by State and Fresno Defendants.

11

The Named Plaintiffs’ claims and their injuries are typical of the claims of the proposed class

12 members. The Named Plaintiffs do not stand to gain anything that would not accrue to the class as a

13 whole. To the contrary, the focus of this litigation is the grant of broad injunctive and declaratory relief

14 that will benefit the entire class. The Named Plaintiffs will fairly and adequately protect the interests of

15 the class.

16

2. Plaintiffs’ Counsel Will Vigorously Prosecute This Action

17

Plaintiffs’ counsel, Altshuler Berzon LLP, are experienced class action counsel with a strong

18 reputation in the legal community. Counsel have decades of experience in litigating major cases

19 throughout the country, including representation of classes at the trial and appellate levels. See White

20 Decl. ¶¶10-17, Ex. C. No conflicts exist that would hinder Counsel’s ability to pursue the litigation

21 vigorously on behalf of the proposed class and subclass. It is presumed that class counsel are competent

22 to litigate the action; the burden is on Defendants to show otherwise. See Wehner v. Syntex Corp., 117

23 F.R.D. 641, 644 (N.D. Cal. 1987). Defendants have not, and cannot, make such a showing here.

24 ///

25 ///

26 ///

27 ///

28 ///

11

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Case4:09-cv-02306-CW Document245 Filed01/04/10 Page18 of 20

1

II. This Case Satisfies Rule 23(b)(2) Because Defendants Have Acted On Grounds

Generally Applicable To The Class, Making Final Injunctive And Declaratory

2

Relief With Respect To The Class As A Whole Appropriate

3

In addition to the four requirements of Rule 23(a), the Named Plaintiffs also satisfy Rule

4 23(b)(2).3 Rule 23(b)(2) provides for class certification where Defendants have “acted or refused to act

5 on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory

6 relief is appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2). In interpreting this

7 requirement, courts have held that where the primary purpose in bringing the action is to seek injunctive

8 relief, the action is properly certifiable under Rule 23(b)(2). Elliott v. Weinberger, 564 F.2d 1219, 1228

9 (9th Cir. 1977); Baby Neal v. Casey, 43 F.3d 48, 58-59 (3d Cir. 1994); Stolz v. United Bd. of Carpenters

10 and Joiners of Am., 620 F. Supp. 396, 407 (D. Nev. 1985).

11

Under Rule 23(b)(2), courts are not required “to examine the viability or bases of class members’

12 claims for declaratory and injunctive relief, but only to look at whether class members seek uniform

13 relief from a practice applicable to all of them.” Rodriguez v. Hayes, 578 F.3d 1032, 1051 (9th Cir.

14 2009); see also Cyrus v. Walker, 233 F.R.D. 467 (S.D. W. Va. 2006) (certifying class in case alleging

15 that changes in Medicaid home and community based eligibility determination processes led to

16 termination of benefits in violation of due process); M.A.C. v. Betit, 284 F. Supp. 2d 1298 (D. Utah

17 2003) (certifying class of disabled Medicaid recipients challenging the denial of Medicaid waiver

18 services as a violation of federal law). Civil rights cases against parties charged with class-based

19 discrimination are “prime examples” of actions under Rule 23(b)(2). Amchem Prods. v. Windsor, 521

20 U.S. 591, 614 (1997).

21

22 3Plaintiffs also satisfy the requirements of Rule 23(b)(1) because the prosecution of separate
23 actions by individual class members would create a risk of inconsistent or varying adjudications that

would establish an incompatible standard of conduct for the party opposing the class. Fed. R. Civ. P. 24 23(b)(1)(A). For instance, a determination by a court that any Plaintiff’s rights were violated under

25

federal law would create a risk of an inconsistent determination in a lawsuit brought separately by other putative class members. There is also a risk that individual determinations would result in varying

26

obligations for Defendants as to different IHSS consumers. In addition, the prosecution of separate actions by individual class members would create a risk of adjudications that would, as a practical

27

matter, be dispositive of the interests of the other members not party to the adjudications. Fed. R. Civ. P. 23(b)(1)(B). Accordingly, the Court may consider certifying the class and subclass under Rule

28 23(b)(1)(A) or Rule 23(b)(1)(B). However, certification under Rule 23(b)(2) is most appropriate because Plaintiffs seek only declaratory and injunctive relief.

12

Plaintiffs’ Motion for Class Certification; Memorandum of Points and Authorities in Support, Case No. C09-02306 CW

Case4:09-cv-02306-CW Document245 Filed01/04/10 Page19 of 20

1

This case is properly certified under Rule 23(b)(2). Defendants’ violations of federal law have

2 equal application to all class members, as all class members are people with disabilities who receive

3 IHSS services and who are at risk of severe harm on account of Defendants’ unlawful acts. Plaintiffs

4 seek only declaratory and injunctive relief to prohibit future violations of federal law.

5

III. The Court Should Designate Plaintiffs’ Counsel As Class Counsel Pursuant To Rule

23(g)(1).

6

7

Under Rule 23(g)(1), the Court must appoint class counsel upon certifying a class. Fed. R. Civ.

8 P. 23(g)(1). The Court considers four factors in appointing class counsel:

9

(i) the work counsel has done in identifying or investigating potential claims in the action;

(ii) counsel’s experience in handling class actions, other complex litigation, and the types

10

of claims asserted in the action;

(iii) counsel’s knowledge of the applicable law; and

11

(iv) the resources that counsel will commit to representing the class.

12 Fed. R. Civ. P. 23(g)(1)(A).

13

Plaintiffs’ counsel are well-qualified for appointment in this case. As reflected in the First

14 Amended Complaint, Plaintiffs’ Motion for Preliminary Injunction, and the subsequent motions,

15 Plaintiffs’ counsel has committed extensive time and resources to identifying and investigating

16 Plaintiffs’ claims. See White Decl. ¶¶4-9. Counsel is experienced in handling class actions and complex

17 litigation, and has extensive knowledge of discrimination law. See White Decl. ¶¶10-17, Ex. C. Thus,

18 the Court should appoint Plaintiffs’ counsel as class counsel.

19

CONCLUSION

20

For the reasons stated above, the Named Plaintiffs have satisfied all of the requirements of Rule

21 23(a) and Rule 23(b)(2) with respect to the proposed defined class and subclass, and Rule 23(g)(1) as to

22 appointment of class counsel. Plaintiffs respectfully request that this Court:

23

1) Certify this case as a Rule 23(b)(2) class action;

24

2) For the First, Second, Third, and Fourth Claims for Relief, as asserted against State

25

Defendants, define the Plaintiff Class as:

26

All In-Home Supportive Services consumers residing in Alameda, Calaveras,

Contra Costa, Fresno, Marin, Mendocino, Monterey, Napa, Placer, Riverside,

27

Sacramento, San Benito, San Francisco, San Luis Obispo, San Mateo, Santa

Barbara, Santa Clara, Santa Cruz, Solano, Sonoma, and Yolo counties.

28

13

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Case4:09-cv-02306-CW Document245 Filed01/04/10 Page20 of 20

1

3) For the Third and Fourth Claims for Relief, as asserted against Fresno Defendants, define

2

the Fresno Subclass as:

3

All In-Home Supportive Services consumers residing in Fresno County;

4

4) Appoint Plaintiffs’ counsel to serve as class counsel; and

5

5) Dispense with notice to absent class members, pursuant to Rule 23(c)(2)(A).

6

7

Dated: January 4, 2010

Respectfully submitted,

8

9

STEPHEN P. BERZON

SCOTT A. KRONLAND

10

STACEY M. LEYTON

PEDER J. THOREEN

11

ANNE N. ARKUSH

EMILY B. WHITE

12

13

By:

/s/

14

Emily B. White

Attorneys for Plaintiffs

15

16

17

18

19

20

21

22

23

24

25

26

27

28

14

Plaintiffs’ Motion for Class Certification; Memorandum of Points and Authorities in Support, Case No. C09-02306 CW

 
 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

FILED
JAN 15 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

MIKESHA MARTINEZ, by and through her husband and next friend Carlos Martinez; et al.,
Plaintiffs - Appellees,
v.
ARNOLD SCHWARZENEGGER, Governor of the State of California; et al.,
Defendants - Appellants,
and
FRESNO COUNTY; et al.,
Defendants.

No. 09-16359
D.C. No. 4:09-cv-02306-CW Northern District of California, Oakland

CALIFORNIA PHARMACISTS ASSOCIATION; et al.,
Plaintiffs, and CALIFORNIA HOSPITAL ASSOCIATION; et al.,
Plaintiffs - Appellants, v.

No. 09-55365
D.C. No. 2:09-cv-00722-CASMAN Central District of California, Los Angeles

DAVID MAXWELL-JOLLY, Director of The California Department of Health Care Services,
Defendant - Appellee.

CALIFORNIA PHARMACISTS ASSOCIATION; et al.,
Plaintiffs - Appellees,
v.
DAVID MAXWELL-JOLLY, Director of The California Department of Health Care Services,
Defendant - Appellant.

No. 09-55532
D.C. No. 2:09-cv-00722-CASMAN Central District of California, Los Angeles

INDEPENDENT LIVING CENTER OF SOUTHERN CALIFORNIA, INC.; et al.,
Plaintiffs - Appellees,
v.

No. 09-55692
D.C. No. 2:09-cv-00382-CASMAN Central District of California, Los Angeles

DAVID MAXWELL-JOLLY, Director of Department of Health Care Services of the State of California,

AMENDED ORDER

Defendant - Appellant.

Before: REINHARDT, W. FLETCHER and M. SMITH, Circuit Judges.

On November 19, 2009, Defendant-Appellant David Maxwell-Jolly, Director of Department of Health Care Services of the State of California, (Director) asked this court to set oral argument in these four related appeals “as soon as practicable.” According to the Director, the injunctions entered in these cases are costing the State $25 million per month, at a time when the State “is grappling with a financial crisis of unprecedented dimensions.” The Director sought guidance from our court, arguing that “uncertainty in the law . . . has made it difficult for the State to budget for the future.” We granted the Director’s request, set oral argument for January 19, 2010, and have diligently prepared for oral argument in all four appeals, in which the parties’ submissions total no less than five thousand pages. Now, less than a week before we are scheduled to hear argument, the Director asks that these appeals be reassigned to a different panel because he asserts that an intervening order we published calls our impartiality into question. We deny the request.
On December 21, 2009, we denied the Director’s motion to vacate our opinion in Independent Living Center of Southern California, Inc. v. MaxwellJolly, 572 F.3d 644 (9th Cir. 2009). See Indep. Living Ctr. of S. Cal., Inc. v. Maxwell-Jolly, — F.3d —, 2009 WL 4893657 (9th Cir. Dec. 21, 2009) (order). In
3

the course of denying the motion, we expressed our concern over certain filings by the Attorney General’s office, on behalf of the Director, and considered the Attorney General to have violated his ethical duty to this court. Id. at *4. Specifically, the Attorney General had filed a four-page motion to vacate, representing that the Attorney General’s office only recently became aware of the jurisdictional issues on which it based its motion. Yet as we described in our order, the Attorney General failed to call our attention to the fact that he had taken the exact opposite position regarding the jurisdictional issue in a petition for certiorari, filed some five months prior. Id. We noted that the Attorney General’s conduct gave us “pause about accepting the veracity of future pleadings filed by the Attorney General on behalf of the Director, if not more generally.” Id. (emphasis added). The Attorney General now insists that our published reprimand evidences “unequivocal antagonism that would make fair judgment [in the four subsequent appeals] impossible.”
Pursuant to 28 U.S.C. § 455, “[a]ny . . . judge . . . of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” The substantive standard for recusal, and that upon which the Attorney General relies, asks “‘[w]hether a reasonable person with knowledge of all the facts would conclude that the judge’s impartiality might reasonably be
4

questioned.’” United States v. Hernandez, 109 F.3d 1450, 1453 (9th Cir. 1997) (quoting United States v. Studley, 783 F.2d 934, 939 (9th Cir. 1986)). However, the Supreme Court has counseled that “judicial rulings alone almost never constitute a valid basis for a bias or partiality motion.” Liteky v. United States, 510 U.S. 540, 555 (1994). Any opinion that may have been formed “on the basis of facts introduced or events occurring in the course of . . . prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible.” Id.
With these principles in mind, we conclude that the Attorney General’s motion clearly falls short. The grounds upon which the Attorney General bases his claims of partiality all occurred in the course of prior judicial proceedings and do not display the type of “deep-seated and unequivocal antagonism that would render fair judgment impossible.” Id. at 556. Rather, we stated that the Attorney General’s actions gave us “pause” about relying on the truthfulness of factual representations he might make in the future, and noted the manner in which he had misled the court. We believe we were correct in our understanding of his actions, and we have not accepted his subsequent explanations. As the Supreme Court has stated, “[i]mpartiality is not gullibility.” Id. at 551.
5

Moreover, having been less than truthful once before, the Attorney General is in no position to question this panel’s impartiality for simply calling him to account for his lack of candor. The Attorney General is a frequent litigator in our court, who, we believed, required an admonition that would cause him to be more careful in his future filings. We appear to have caught his attention and expect that he now will be. We sometimes agree with the Attorney General’s position, while other times we reject it. Should we accept his invitation to recuse ourselves in these appeals, he could seek the recusal of any future panel that is equally critical of the manner in which he presents his case. He could also seek our recusal in numerous other cases of all types, including direct appeals and habeas cases, for the indefinite future. Although there is no basis for the Attorney General’s motion, he may rest assured that he will receive fair and unbiased treatment from the court, as will all other litigators who are willing to comply with the rules that govern their professional conduct as well as the applicable rules of court.
Further, while the Attorney General asserts that “there is an ample number of replacement judges on the Ninth Circuit,” we call his attention to the more than 17,000 appeals currently pending in our circuit. See U.S. Courts of Appeals—Appeals Commenced, Terminated, and Pending During the 12-Month Periods Ending March 31, 2008 and 2009,
6

http://www.uscourts.gov/caseload2009/tables/B00Mar09.pdf. We assure the Attorney General that there are no judges sitting idly by, prepared to dive into five thousand pages and hear oral argument in the four pending cases in less than a week.
The motion to disqualify pursuant to 28 U.S.C. § 455(a) is DENIED.
7

 
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MCCORMICK, BARSTOW, SHEPPARD, WAYTE & CARRUTH LLP
5 RIVER PIIRIC PLA,CE EAST FR!l:SNO.CA 93720-1501

Michael G. Woods, # 58683 Timothy J. Buchanan, # 100409 Mandy L. Jeffcoach, #232313 McCORMICK, BARSTOW, SHEPPARD,
WAYTE & CARRUTH LLP P.O. Box 28912 5 River Park Place East Fresno, CA 93720-1501 Telephone: (559) 433-1300 Facsimile: (559) 433-2300
Attorneys for Defendants COUNTY OF FRESNO and FRESNO COUNTY IN-HOME SUPPORTIVE SERVICES PUBLIC AUTHORITY

(SPACE BELOW FOR FILING STAMP ONLy)

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO/OAKLAND DIVISION

SIA CHUE YANG, et aI.,
Plaintiffs,
v.
ARNOLD SCHWARZENEGGER, Governor ofthe State of California; JOHN A. WAGNER, Director of the California Department of Social Services; DAVID MAXWELL-JOLLY, Director of the California Department of Health Care Services; JOHN CHIANG, California State Controller; FRESNO COUNTY; and FRESNO COUNTY IN-HOME SUPPORTIVE SERVICES PUBLIC AUTHORITY,

Case No. C 09-02306 CW
OBJECTIONS AND MOTION TO STRIKE CERTAIN DECLARATIONS FILED BY PLAINTIFFS IN SUPPORT OF THEIR MOTION FOR CLASS CERTIFICATION; ORDER RE THE SAME
Date: SUBMITTED ON THE PAPERS
Location: Courtroom 2, Fourth Floor

Defendants.

OBJECTIONS AND MOTION TO STRIKE CERTAIN DECLARATIONS

Case4:09-cv-02306-CW Document251 Filed01/28/10 Page2 of 20

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TABLE OF CONTENTS

2

Page

3 MOTION TO STRIKE THE DECLARATION OF DEBORAH ROTH ....................................... 1
4 OBJECTIONS TO THE DECLARATION OF ANDY MARTINEZ ............................................ 2 OBJECTIONS TO THE DECLARATION OF HYUN NAM ....................................................... 3
5 DECLARATION OF SUSANNAH MCDEVITT .......................................................................... 4

6 DECLARATION OF DONNA BROWN ....................................................................................... 5

7 DECLARATION OF LISA BROWN ............................................................................................. 6 DECLARATION OF LYDIA DOMINGUEZ................................................................................ 6
8 DECLARATION OF PATSY MILLER......................................................................................... 7

9 DECLARATION OF SIA CHUE YANG ...................................................................................... 8

10 DECLARATION OF JULIE WEISSMAN-STEINBAUGH ......................................................... 9 DECLARATION OF LESLIE GORDON .................................................................................... 11
11 DECLARATION OF CHARLENE AyERS ................................................................................ 12

12 DECLARATION OF WILLIE BEATRICE SHEPPARD ........................................................... 14

13 DECLARATION OF HERBERT M. MEYER ............................................................................ 15

14

15

16

17

18

19

20

21

22

23

24

25

26

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MCCORMICK, BARSTOW, SHEPPARD, WAYTE & CARRUTH LLP
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C 09-02306 CW

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1

TABLE OF AUTHORITIES

2

Page

3 Cases

4 A.l Credit Corp, v. Legion Ins. Co.,

5

265 F.3d 630,637 (7th Cir. 2001)...................... 1,2,3,4,5,6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16

6

Andrews Farms v. Calcot, Ltd., 258 F.R.D. 640, 651 (E.D. Cal. 2009) ......................................................................................... 1

7 Carmen v. San Francisco Unified School District,

8

237 F.3d 1026, 1028 (9th Cir. 2001)............................................................................................ 4

9

Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 595 (1993) ............................................................................................................. 5

10 General Telephone Co. a/the Southwest v. Falcon,

11

457 U.S. 147, 161 (1982) ............................................................................................................. 1

12

Hawkins v. Comparet-Cassani, 251 F.3d 1230, 1238 (9th Cir. 2001)............................................................................................ 1

13 In re Visa CheckiMasterMoney Antitrust Litig.,

14

280 F.3d 124, 135 (2d Cir. 2001) ........................................................................................... 2, 16

15

Krzesniak v. Cendant Corp., 2007 Us. Dist. LEXIS 47518,14-15 (N.D. Cal., 2007) ....................................................................................... 1

16 Sepulveda v. Wal-Mart Stores, Inc.,

17

237 F.R.D. 229,235 (C.D. Cal. 2006) ........................................................................... 2,3, 5, 17

18

Slevin v. Home Depot, 120 F. Supp 2d. 822, 835-836 (N.D. Cal. 2000) .. 2,3,5,6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17

19 United States v. Boulware, 20 384 F.3d 794, 805 (9th Cir. 2004) ...................................................... 5,7,9,11,12, 14

21

Wang v. Chinese Daily News, Inc., 236 F.R.D. 485,491 (C.D. Cal., 2006.) ....................................................................................... 1

22 Statutes
23 Federal Rule of Civil Procedure 23 .................................................................................................. 1
24 FRE Rule 401 ................................................................................................... 5, 7, 9, 11, 12, 14, 15
25 FRE Rule 702 ..................................................................................................................... 2,3,5, 17
26 FRE Rule 801 ................................................................................................................... 1,2,3,4,5
27

28
MCCORMICK, BARSTOW, SHEPPARD, WAYTE & CARRUTH LLP
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FRESNO,CA 93720-1501

ii
C 09-02306 CW

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MCCORMICK. BARSTOW. SHEPPARD. WAYTE & CARRUTH LLP
5 R1VER P"RK PLACE EAST FRESNO, CA 93720-1501

Defendants COUNTY OF FRESNO and FRESNO COUNTY IN-HOME SUPPORTIVE SERVICES PUBLIC AUTHORITY (collectively referred to as the "County") hereby files its Objections to Declarations filed by Plaintiffs in support of their Motion for Class Certification.
Initially, the moving party bears the burden of proving that class certification IS appropriate. Hawkins v. Comparet-Cassani, 251 F.3d 1230, 1238 (9th Cir. 2001). The court must rigorously analyze whether the class allegations meet the requirements of Federal Rule of Civil Procedure 23. General Telephone Co. ofthe Southwest v. Falcon, 457 U.S. 147, 161 (1982). The movant's burden is to produce evidence by affidavits, documents or testimony establishing each Rule 23 requirement. Andrews Farms v. Calcot, Ltd., 258 F.R.D. 640, 651 (E.D. Cal. 2009).
When affidavits are filed, the affidavits must meet admissibility standards. See Krzesniak v. Cendant Corp., 2007 U.S. Dist. LEXIS 47518,14-15 (N.D. Cal., 2007) (hearsay); Wang v. Chinese Daily News, Inc., 236 F.R.D. 485, 491 (C.D. Cal., 2006) (various objections ruled upon). In other words, if declarations contain hearsay or the proper foundation is not laid, then objections are properly sustained. Id.
Based on the above, the County respectfully requests that the Court sustain the objections as set forth below and/or grant the Motion to Strike certain Declarations.
MOTION TO STRIKE THE DECLARATION OF DEBORAH ROTH. The County hereby requests that the Court strike the entire declaration of Ms. Roth on the ground that it contains statements that violate the hearsay rule as out of court statements cannot be introduced for the truth of the matter asserted. FRE Rule 801. Likewise, the purported statements made by the declarant lack foundation. A.l Credit Corp. v. Legion Ins. Co., 265 F.3d 630,637 (7th Cir. 2001).
Ms. Roth's Declaration contains a recitation of alleged conversations that she had with various individuals and what those individuals told her. Clearly, these statements are hearsay and are inadmissible. FRE Rule 801.
1
OBJECTIONS AND MOTION TO STRIKE CERTAIN DECLARATIONS

Case4:09-cv-02306-CW Document251 Filed01/28/10 Page5 of 20

- - - Sustained

- - - - Denied

2

3

4

OBJECTIONS TO THE DECLARATION OF ANDY MARTINEZ

5

Paragraph 5

6

Objection is made on the ground that Mr. Martinez's statements lack foundation. A.I

7 Credit Corp., supra, 265 F.3d at 637. Mr. Martinez's statements amount to nothing more than

8 speculation as to what mayor may not happen. As a result, there are insufficient facts to establish

9 the basis for this opinion. Slevin v. Home Depot, 120 F. Supp 2d. 822, 835-836 (N.D. Cal. 2000)

10 (stating that a declaration based on speculation is irrelevant and should not be considered).

11 Moreover, the statements appear to be of the nature of expert testimony, and therefore are

12 improperly before this court as there are no facts that would demonstrate that Mr. Martinez is

13 qualified to provide expert testimony. FRE Rule 702; see also Sepulveda v. Wal-Mart Stores,

14 Inc., 237 F.R.D. 229, 235 (C.D. Cal. 2006) (stating that the Court "must ensure that the basis of

15 the expert opinion is not so flawed that it would be inadmissible as a matter of law.", quoting In

16 re Visa CheckiMasterMoneyAntitrust Litig., 280 F.3d 124,135 (2d Cir. 2001».

17

- - - Sustained

- - - - Denied

18

19

20

Paragraph 6

21

Objection is made on the grounds that Mr. Martinez's statements lack foundation. A.I

22 Credit Corp., supra, 265 F.3d at 637. Mr. Martinez's statements amount to nothing more than

23 speCUlation as to what mayor may not happen. As a result, there are insufficient facts to establish

24 the basis for this opinion. Slevin, supra, 120 F. Supp 2d. at 835-836 (stating that a declaration

25 based on speculation is irrelevant and should not be considered).

26
27
28
McCORMICK, BARSTOW, SHEPPARD, WAYTE & CARRUTH LLP 5RIVERPIIRKPv.csEAsr FRESNO,CA 93720-1501

- - - Sustained

- - - - Denied

2
OBJECTIONS AND MOTION TO STRIKE CERTAIN DECLARATIONS

Case4:09-cv-02306-CW Document251 Filed01/28/10 Page6 of 20

1

Paragraph 7

2

Objection is made on the grounds that Mr. Martinez's statements lack foundation. A.l

3 Credit Corp., supra, 265 F.3d at 637. Mr. Martinez's statements amount to nothing more than

4 speculation as to what mayor may not happen. As a result, there are insufficient facts to establish

5 the basis for this opinion. Slevin, supra, 120 F. Supp 2d. at 835-836. Moreover, the statements

6 appear to be of the nature of expert testimony, and therefore are improperly before this court as

7 there are no facts that would demonstrate that Mr. Martinez is qualified to provide expert

8 testimony. FRE Rule 702; See also Sepulveda, supra, 237 F.R.D. at 235.

9

10

- - - Sustained

- - - - Denied

11

12

13

OBJECTIONS TO THE DECLARATION OF HYUN NAM.

14

Paragraphs 2 through 5 and 7 through 11

15

Objection is made on the grounds that the statements contained in the aforementioned

16 paragraphs violate the hearsay rule, as out of court statements cannot be introduced for the truth

17 of the matter asserted. FRE Rule 801. What Ms. Nam was allegedly told by various individuals

18 is clearly hearsay and is inadmissible.

19

20

- - - Sustained

- - - - Denied

21

22

23

24

DECLARATION OF SUSANNAH MCDEVITT

25

Paragraph 3 and 4

26

Objection is made on the grounds that Ms. McDevitt's statements lack foundation. A.l

27 Credit Corp" supra, 265 F.3d at 637. A witnesses' testimony, whether it is live and/or in a

28
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declaration, must be based on that individual's personal knowledge of the facts asserted. FRE 3
OBJECTIONS AND MOTION TO STRIKE CERTAIN DECLARATIONS

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Rule 602; Jones, Rosen, Wegner & Jones, Rutter Group Practice Guide; Federal Civil Trial & Evidence, ~ 8:231, at 657 (TRG 2008). A witness cannot simply state conclusions without any evidentiary basis. FRE Rule 602; see also Carmen v. San Francisco Unified School District, 237
F.3d 1026, 1028 (9th Cir. 2001) CIt is not enough for a witness to tell all she knows; she must
know all she tells. "). Here, Ms. McDevitt has no personal knowledge as to what actions were taken by the
Board of Supervisors for Mendocino and Napa County on May 19, 2009 because she admittedly did not attend those board meeting. (See Paragraphs 3 and 4.) Further, her declaration is void of any facts that would demonstrate her personal knowledge as to these facts. Therefore, the County respectfully requests that its objections be sustained.

- - - Sustained

- - - - Denied

Paragraph 5 Objection is made on the ground that the statements contained in this paragraph violate the hearsay rule, as out of court statements cannot be introduced for the truth of the matter asserted. FRE Rule 801. Here, Ms. McDevitt attempts to attest to what she was told by an unidentified person at Solano County. Clearly, these statements are hearsay and are inadmissible. FRE Rule 801.

- - - Sustained

- - - - Denied

Paragraph 6 An objection is made on the grounds that Ms. McDevitt's statements lack foundation. A.l Credit Corp., supra, 265 F.3d at 637. The declaration does not contain facts to substantiate the conclusions rendered by Ms. McDevitt, thereby making such statements pure speculation and
4
OBJECTIONS AND MOTION TO STRIKE CERTAIN DECLARATIONS

Case4:09-cv-02306-CW Document251 Filed01/28/10 Page8 of 20

1 inadmissible. Slevin, supra, 120 F.Supp 2d at 835-836. Furthermore, the statements appear to be

2 in the nature of expert testimony, and therefore have improperly been brought before this Court as

3 there is no foundation as to Ms. McDevitt's expertise. FRE Rule 702; Daubert v. Merrell Dow

4 Pharmaceuticals, Inc., 509 U.S. 579,595 (1993); Sepulveda, supra, 237 F.R.D. at 235.

5

6

- - - Sustained

- - - - Denied

7

8

DECLARATION OF DONNA BROWN

9

Paragraph 6

10

Objection is made on the grounds that the statements contained in this paragraph violate

11 the hearsay rule as out of court statements cannot be introduced for the truth of the matter

12 asserted. FRE Rule 801. Here, Ms. Brown attempts to attest to what she was told by unidentified

13 IHSS providers. Clearly, these statements are hearsay and are inadmissible.

14

- - - Sustained

- - - - Denied

15

16 Objection to the Entire Declaration
17 The County hereby objects to the entirety of Ms. Brown's declaration on the grounds that
18 the evidence contained in the declaration is irrelevant and inadmissible as to the County.
19 Evidence that is not relevant is not admissible. FRE Rule 402. "Relevant evidence" is "Evidence
20 having any tendency to make the existence of any fact that is of consequence to the determination
21 of an action more probable or less probable than it would be without the evidence." FRE Rule
22 401; United States v. Boulware, 384 F.3d 794,805 (9th Cir. 2004). Ms. Brown is not a resident of
23 Fresno County, thereby making her entire declaration irrelevant to the claims asserted against the
24 County.
25

26

27

- - - Sustained

---'--- Denied

28
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OBJECTIONS AND MOTION TO STRIKE CERTAIN DECLARAnONS

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1

2

DECLARATION OF LISA BROWN

3

Paragraph 12

4

Objection is made on the grounds that Ms. Brown's statements lack foundation. A.I

5 Credit Corp., supra, 265 F.3d at 637. The declaration does not contain facts that substantiate the

6 conclusions rendered by Ms. Brown, thereby making such statements pure speculation and

7 inadmissible. Slevin, supra, 120 F.Supp.2d at 835-836.

8

9

- - - Sustained

- - - - Denied

10

11

Paragraph 13

12

Objection is made on the grounds that Ms. Brown's statements lack foundation. A.l

13 Credit Corp., supra, 265 F.3d at 637. The declaration does not contain facts that substantiate the

14 conclusions rendered by Ms. Brown, thereby making such statements pure speculation and

15 inadmissible. Slevin, supra, 120 F.Supp.2d at 835-836.

16

- - - Sustained

- - - - Denied

17

18

19

20

DECLARATION OF LYDIA DOMINGUEZ

21

Paragraph 6

22

Objection is made on the grounds that Ms. Dominguez's statements lack foundation. A.l

23 Credit Corp., supra, 265 F.3d at 637. The declaration does not contain facts that substantiate the

24 conclusions rendered by Ms. Dominguez, thereby making such statements pure speculation and

25 inadmissible. Slevin, supra, 120 F.Supp.2d at 835-836.

26

27
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- - - Sustained

- - - - Denied

6
OBJECTIONS AND MOTION TO STRIKE CERTAIN DECLARATIONS

Case4:09-cv-02306-CW Document251 Filed01/28/10 Page10 of 20

1

Objection to the Entire Declaration

2

The County hereby objects to the entirety of Ms. Dominguez's declaration on the grounds

3 that the evidence contained in the declaration is irrelevant and inadmissible as to the County.

4 Evidence that is not relevant is not admissible. FRE Rule 402. "Relevant evidenceII is "Evidence

5 having any tendency to make the existence of any fact that is of consequence to the determination

6 of an action more probable or less probable than it would be without the evidence. II FRE Rule

7 401; United States v. Boulware, supra, 384 F.3d at 805. Ms. Dominguez is not a resident of

8 Fresno County, thereby making her entire declaration irrelevant to the claims asserted against the

9 County.

10

- - - Sustained

- - - - Denied

11

12

13 DECLARATION OF PATSY MILLER
14 Paragraph 7
15 Objection is made on the grounds that Ms. Millerls statements lack foundation. A.l Credit
16 Corp" supra, 265 F.3d at 637. The declaration does not contain facts that substantiate the
17 conclusions rendered by Ms. Miller, thereby making such statements pure speculation and
18 inadmissible. Slevin, supra, 120 F.Supp.2d at 835-836.
19

20

- - - Sustained

- - - - Denied

21

22

23

24

Paragraph 8

25

Objection is made on the grounds that Ms. Miller's statements lack foundation. A.l Credit

26 Corp., supra, 265 F.3d at 637. The declaration does not contain facts that substantiate the

27 conclusions rendered by Ms. Miller, thereby making such statements pure speculation and

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inadmissible. Slevin, supra, 120 F.Supp.2d at 835-836. 7
OBJECTIONS AND MOTION TO STRIKE CERTAIN DECLARATIONS

Case4:09-cv-02306-CW Document251 Filed01/28/10 Page11 of 20

1

- - - Sustained

- - - - Denied

2

3

4

DECLARATION OF SIA CHUE YANG

5

Paragraph 6

6

Objection is made on the grounds that Ms. Yang's statements lack foundation. A.I. Credit

7 Corp" supra, 265 F.3d at 637. The declaration does not contain facts that substantiate the

8 conclusions rendered by Ms. Yang, thereby making such statements pure speculation and

9 inadmissible. Slevin, supra, 120 F.Supp.2d at 835-836.

10

- - - Sustained

- - - - Denied

11

12

13

14

Paragraph 7

15

Objection is made on the grounds that Ms. Yang's statements lack foundation. A.I. Credit

16 Corp., supra, 265 F.3d at 637. The declaration does not contain facts that substantiate the

17 conclusions rendered by Ms. Yang, thereby making such statements pure speculation and

18 inadmissible. Slevin, supra, 120 F.Supp.2d at 835-836.

19
20
21
22
23
24
25
26
27
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- - - Sustained

- - - - Denied

Paragraph 8 Objection is made on the grounds that Ms. Yang's statements lack foundation. A.I. Credit Corp., supra, 265 F.3d at 637. The declaration does not contain facts that substantiate the conclusions rendered by Ms. Yang, thereby making such statements pure speculation and inadmissible. Slevin, supra, 120 F.Supp.2d at 835-836.
8
OBJECTIONS AND MOTION TO STRIKE CERTAIN DECLARATIONS

Case4:09-cv-02306-CW Document251 Filed01/28/10 Page12 of 20

1

- - - Sustained

- - - - Denied

2

3

4

5

Paragraph 9

6

Objection is made on the grounds that Ms. Yang's statements lack foundation. A.I. Credit

7 Corp., supra, 265 F.3d at 637. The declaration does not contain facts that substantiate the

8 conclusions rendered by Ms. Yang, thereby making such statements pure speculation and

9 inadmissible. Slevin, supra, 120 F.Supp.2d at 835-836.

10

- - - Sustained

- - - - Denied

11

12

13

14

DECLARATION OF JULIE WEISSMAN-STEINBAUGH

15

Objection to the Entire Declaration

16

The County hereby objects to the entirety of Ms. Weissman-Steinbaugh's declaration on

17 the grounds that the evidence contained in the declaration is irrelevant and inadmissible as to the

18 County. Evidence that is not relevant is not admissible. FRE Rule 402. "Relevant evidence" is

19 "evidence having any tendency to make the existence of any fact that is of consequence to the

20 determination of an action more probable or less probable than it would be without the evidence."

21 FRE Rule 401; United States Boulware, supra, 384 F.3d at 805. Ms. Weissman-Steinbaugh is not

22 a resident of Fresno County, thereby making her entire declaration irrelevant to the claims

23 asserted against the County.

24
25
26
27
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- - - Sustained

- - - - Denied

9
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Paragraph 6 Objection is made on the grounds that Ms. Weissman-Steinbaugh's statements lack foundation. A.I. Credit Corp., supra, 265 F.3d at 637. The declaration does not contain facts that substantiate the conclusions rendered by Ms. Weissman-Steinbaugh, thereby making such statements pure speculation and inadmissible. Slevin, supra, 120 F.Supp.2d at 835-836.

- - - Sustained

- - - - Denied

Paragraph 7 Objection is made on the grounds that Ms. Weissman-Steinbaugh's statements lack foundation. A.I. Credit Corp., supra, 265 F.3d at 637. The declaration does not contain facts that substantiate the conclusions rendered by Ms. Weissman-Steinbaugh, thereby making such statements pure speculation and inadmissible. Slevin, supra, 120 F.Supp.2d at 835-836.

- - - Sustained

- - - - Denied

Paragraph 8 Objection is made on the grounds that Ms. Weissman-Steinbaugh's statements lack foundation. A.I. Credit Corp., supra, 265 F.3d at 637. The declaration does not contain facts that substantiate the conclusions rendered by Ms. Weissman-Steinbaugh, thereby making such statements pure speculation and inadmissible. Slevin, supra, 120 F.Supp.2d at 835-836.

- - - Sustained

- - - - Denied

DECLARATION OF LESLIE GORDON Objection to the Entire Declaration The County hereby objects to the entirety of Ms. Gordon's declaration on the grounds that
10
OBJECTIONS AND MOTION TO STRIKE CERTAIN DECLARATIONS

Case4:09-cv-02306-CW Document251 Filed01/28/10 Page14 of 20

the evidence contained in the declaration is irrelevant and inadmissible as to the County.

2 Evidence that is not relevant is not admissible. FRE Rule 402. "Relevant evidence" is "evidence

3 having any tendency to make the existence of any fact that is of consequence to the determination

4 of an action more probable or less probable than it would be without the evidence." FRE Rule

5 401; United States, supra, 384 F.3d at 805. As Ms. Gordon is not a resident of Fresno County,

6 her entire declaration is irrelevant to the claims asserted against the County.

7

- - - Sustained

- - - - Denied

8

9

10

Paragraph 5

11

Objection is made on the grounds that Ms. Gordon's statements lack foundation. A.I.

12 Credit Corp., supra, 265 F.3d at 637. The declaration does not contain facts that substantiate the

13 conclusions rendered by Ms. Gordon, thereby making such statements pure speculation and

14 inadmissible. Slevin, supra, 120 F.Supp.2d at 835-836.

15

- - - Sustained

- - - - Denied

16

17

18

Paragraph 6

19

Objection is made on the grounds that Ms. Gordon's statements lack foundation. A.I.

20 Credit Corp., supra, 265 F.3d at 637. The declaration does not contain facts that substantiate the

21 conclusions rendered by Ms. Gordon, thereby making such statements pure speculation and

22 inadmissible. Slevin, supra, 120 F.Supp.2d at 835-836.

23

24

- - - Sustained

- - - - Denied

25

26

Paragraph 7

27

Objection is made on the grounds that Ms. Gordon's statements lack foundation. A.I.

28
MCCORMICK. BARSTOW. SHEPPARD. WAYTE & CARRUTH LLP 5RIVERPARKPLAceE"ST
FRESNO, CA 93720-1501

Credit Corp., supra, 265 F.3d at 637. The declaration does not contain facts that substantiate the
11
OBJECTIONS AND MOTION TO STRIKE CERTAIN DECLARATIONS

Case4:09-cv-02306-CW Document251 Filed01/28/10 Page15 of 20

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
MCCORMICK, BARSTOW, SHEPPARD, WAYTE & CARRUTH LLP 5 RIYER PARK PLAce EIIsr
FRESNO. CA 93720-1501

conclusions rendered by Ms. Gordon, thereby making such statements pure speculation and inadmissible. Slevin, supra, 120 F.Supp.2d at 835-836.

- - - Sustained

- - - - Denied

DECLARATION OF CHARLENE AYERS Objection to the Entire Declaration. The County hereby objects to the entirety of Ms. Ayers' declaration on the grounds that the evidence contained in the declaration is irrelevant and inadmissible as to the County. Evidence that is not relevant is not admissible. FRE Rule 402. "Relevant evidence" is "evidence having any tendency to make the existence of any fact that is of consequence to the determination of an action more probable or less probable than it would be without the evidence." FRE Rule 401; United States v. Boulware, supra, 384 F.3d at 805. Ms. Ayers is not a resident of Fresno County, thereby making her entire declaration irrelevant to the claims asserted against the County. Thus, the declaration should be stricken in its entirety.

- - - Sustained

- - - - Denied

Paragraph 5 Objection is made on the grounds that Ms. Ayers' statements lack foundation. A.l Credit Corp., supra, 265 F.3d at 637. The declaration does not contain facts that substantiate the conclusions rendered by Ms. Ayer, thereby making such statements pure speculation and inadmissible. Slevin, supra, 120 F.Supp.2d at 835-836.

- - - Sustained

- - - - Denied

12
OBJECTIONS AND MOTION TO STRIKE CERTAIN DECLARATIONS

Case4:09-cv-02306-CW Document251 Filed01/28/10 Page16 of 20

1

Paragraph 7

2

Objection is made on the grounds that Ms. Ayers' statements lack foundation. A.l Credit

3 Corp., supra, 265 F.3d at 637. The declaration does not contain facts that substantiate the

4 conclusions rendered by Ms. Ayer, thereby making such statements pure speculation and

5 inadmissible. Slevin, supra, 120 F.Supp.2d at 835-836.

6

7

- - - Sustained

- - - - Denied

8

9

Paragraph 8

10

Objection is made on the grounds that Ms. Ayers' statements lack foundation. A.l Credit

11 Corp., supra, 265 F.3d at 637. The declaration does not contain facts that substantiate the

12 conclusions rendered by Ms. Ayer, thereby making such statements pure speculation and

13 inadmissible. Slevin, supra, 120 F.Supp.2d at 835-836.

14

15

- - - Sustained

- - - - Denied

16

17

18

19

20 DECLARATION OF WILLIE BEATRICE SHEPPARD
21

22

Objection to the Entire Declaration

23

The County hereby objects to the entirety of Mr. Sheppard's declaration on the grounds

24 that the evidence contained in the declaration is irrelevant and inadmissible as to the County.

25 Evidence that is not relevant is not admissible. FRE Rule 402. "Relevant evidence" is "evidence

26 having any tendency to make the existence of any fact that is of consequence to the determination

27 of an action more probable or less probable than it would be without the evidence." FRE Rule

28
MCCORMICK, BARSTOW, SHEPPARD, WAnE & CARRUTH LLP
5 RIVER PARK PLACE EAST FRESNo, CA 93720-1501

401; United States~. Boulware, supra, 384 F.3d at 805. Mr. Sheppard is not a resident of Fresno 13
OBJECTIONS AND MOTION TO STRIKE CERTAIN DECLARATIONS

Case4:09-cv-02306-CW Document251 Filed01/28/10 Page17 of 20

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
MCCORMICK, BARSTOW, SHEPPARO, WAYTE & CARRUTH LLP
5R!VERPARKPlAceEASl FRESNO,CA 93720-1501

County, thereby making his entire declaration irrelevant to the claims asserted against the County. Thus, the declaration should be stricken in its entirety.

- - - Sustained

- - - - Denied

Paragraph 5 Objection is made on the grounds that Mr. Sheppard's statements lack foundation. A.I. Credit Corp., supra, 265 F.3d at 637. The declaration does not contain facts that substantiate the conclusions rendered by Mr. Sheppard, thereby making such statements pure speculation and inadmissible. Slevin, supra, 120 F.Supp.2d at 835-836.

- - - Sustained

- - - - Denied

Paragraph 6

' Objection is made on the grounds that Mr. Sheppard's statements lack foundation. A.I.

Credit Corp., supra, 265 F.3d at 637. The declaration does not contain facts that substantiate the

conclusions rendered by Mr. Sheppard, thereby making such statements pure speculation and

inadmissible. Slevin, supra, 120 F.Supp.2d at 835-836.

- - - Sustained Paragraph 8

- - - - Denied

Objection is made on the grounds that Mr. Sheppard's statements lack foundation. A.I.

Credit Corp" supra, 265 F.3d at 637. The declaration does not contain facts that substantiate the

conclusions rendered by Mr. Sheppard, thereby making such statements pure speculation and

inadmissible. Slevin, supra, 120 F.Supp.2d at 835-836.

- - - Sustained

- - - - Denied

14
OBJECTIONS AND MOTION TO STRIKE CERTAIN DECLARATIONS

Case4:09-cv-02306-CW Document251 Filed01/28/10 Page18 of 20

1

Paragraph 9

2

Objection is made on the grounds that Mr. Sheppard's statements lack foundation, A.J.

3 Credit Corp" supra, 265 F,3d at 637. The declaration does not contain facts that substantiate the

4 conclusions rendered by Mr. Sheppard, thereby making such statements pure speculation and

5 inadmissible. Slevin, supra, 120 F.Supp.2d at 835-836.

6

- - - Sustained

- - - - Denied

7

8

DECLARATION OF HERBERT M. MEYER

9

Objection to the Entire Declaration.

10

The County hereby objects to the entirety of Mr. Meyerls declaration on the grounds that

11 the evidence contained in the declaration is irrelevant and inadmissible as to the County.

12 Evidence that is not relevant is not admissible. FRE Rule 402. "Relevant evidenceII is "evidence

13 having any tendency to make the existence of any fact that is of consequence to the determination

14 of an action more probable or less probable than it would be without the evidence. II FRE Rule

15 401; United States v, Boulware, supra, 384 F.3d at 805. Mr. Meyer is not a resident of Fresno

16 County, thereby making his entire declaration irrelevant to the claims asserted against the County.

17 Thus, the declaration should be stricken in its entirety.

18

19

- - - Sustained

- - - - Denied

20

21

Paragraph 7

22

Objection is made on the grounds that Mr. Meyer's statements lack foundation. A.J.

23 Credit Corp., supra, 265 F.3d at 637. The declaration does not contain facts that substantiate the

24 conclusions rendered by Mr. Meyer, thereby making such statements pure speculation and

25 inadmissible. Slevin, supra, 120 F.Supp.2d at 835-836.

26

27

- - - Sustained

- - - - Denied

28
MCCORMICK, BARSTOW, SHEPPARD, WAYTE & CARRUTH LLP 5 RIVER PARK PLAce eAST FRESNO,CA 93720-1501

15
OBJECTIONS AND MOTION TO STRIKE CERTAIN DECLARATIONS

Case4:09-cv-02306-CW Document251 Filed01/28/10 Page19 of 20

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
MCCORMICK. BARSTOW. SHEPPARD. WAnE & CARRUTH LLP
5 RIVE:R P"-RK Pl~CE EAST FRE.SNO,CA 93720-1501

Paragraph 8 Objection is made on the grounds that Mr. Meyer's statements lack foundation. A.l Credit Corp., supra, 265 F.3d at 637. The declaration does not contain facts that substantiate the conclusions rendered by Mr. Meyer, thereby making such statements pure speculation and inadmissible. Slevin, supra, 120 F.Supp.2d at 835-836.

- - - Sustained

- - - - Denied

Paragraph 9 Objection is made on the grounds that Mr. Meyer's statements lack foundation. A.l Credit Corp., supra, 265 F.3d at 637. The declaration does not contain facts that substantiate the conclusions rendered by Mr. Meyer, thereby making such statements pure speculation and inadmissible. Slevin, supra, 120 F.Supp.2d at 835-836.

- - - Sustained

- - - - Denied

Paragraph 10 Objection is made on the grounds that Mr. Meyerls statements lack foundation. A.l Credit Corp., supra, 265 F.3d at 637. Mr. Meyer's statements amount to nothing more than speculation as to what mayor may not happen. As a result, there are insufficient facts to establish the basis for this opinion. Slevin, supra, 120 F. Supp 2d. at 835-836 (stating that a declaration based on speculation is irrelevant and should not be considered). Moreover, the statements appear to be of the nature of expert testimony, and therefore are improperly before this court as there are no facts that would demonstrate that Mr. Meyer is qualified to provide expert testimony. FRE Rule 702; see also Sepulveda, supra, 237 F.R.D. at 235 (stating that the Court "must ensure that the basis of the expert opinion is not so flawed that it would be inadmissible as a matter of law.", quoting In re Visa Check/MasterMoney Antitrust LiNg., 280 F.3d at 135.
16
OBJECTIONS AND MOTION TO STRIKE CERTAIN DECLARATIONS

Case4:09-cv-02306-CW Document251 Filed01/28/10 Page20 of 20

1

- - - Sustained

- - - Denied

2

3

4 5

Dated: January~, 2010

6

McCORMICK, BARSTOW, SHEPPARD,

WA\\T

. TH LLP

7
8
9
10
11
29253/00173-1504440. v I
12

B ~.¥-~~~~~~::::::==~ ic ael G. Woods
Ti thy J. Buchanan Mandy L. Jeffcoach Attorneys for Defendant COUNTY OF FRESNO and FRESNO COUNTY IN-HOME SUPPORTIVE SERVICES PUBLIC AUTHORITY

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28
MCCORMICK, BARSTOW, SHEPPARD, WAYTE & CARRUTH LLP
5 RIVER PARK PLACE EAST FRESNO,CA 9372()..1501

17
OBJECTIONS AND MOTION TO STRIKE CERTAIN DECLARATIONS

 
 ( Case4:09-cv-0(7 2306-CW Document253 Filed01/29/10 Page1 of 7
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1 CRAIG J. CANNIZZO (State Bar No. 70379) MARK E. REAGAN (State Bar No. 143438)
2 GREG B SHERMAN (State Bar No. 253832) HOOPER, LUNDY & BOOKMAN, INC.
3 575 Market Street, Suite 2300 San Francisco, California 94105
4 Telephone: (415) 875-8500
Facsimile: (415) 875-8519
5 E-Mail: gshermanhea1th-Iaw.com

4
•4(//4 (Z5S

7 F!
-t ‘r, ‘c

so

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c. cYc

Efiiing

6 Attorneys for Plaintiffs

7

8
UNITED STATES DISTRICT COURT 9
NORTHERN DISTRICT OF CALIFORNIA, SAN FRANCISCO DIVISION 10

11 CALIFORNIA ASSOCIATION OF PUBLIC
12 AUTHORITIES, et al.,

13

Plaintiff,

14

vs.

15 ARNOLD SCHWARZENEGGER, Governor of the State of California; JOHN A.
16 WAGNER, Director of the California Department of Social Services; DAVID
17 MAXWELL-JOLLY, Director of the California Department of Health Care
18 Services; JOHN CHIANG, California State Controller,
19 Defendant.
20

CASE NO.

03441

a

NOTICE OF RELATED CASE
PURSUANT TO CIVIL L.R. 3-12 TO BE FILED IN CASE NO. c. 09-02306 (CW); ADMINISTRATIVE MOTION TO CONSIDER WHETHER CASES SHOULD BE RELATED PURSUANT TO CIVIL L.R. 7-11

CLASS ACTION

The Honorable Claudia Wilken

21

22

TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

23

PLEASE TAKE NOTICE that a related case Calfornia Association ofPublic Authorities

24 et at v. Schwarzenegger et al, was filed on January 25, 2010, in the United State District Court for

25 the Northern District of California. Pursuant to Civil Local Rules 3-12(b) and 7-11 of the United

26 State District Court for the Northern District of California, the California Association of Public

27 Authorities et al. (“CAPA”) submits this Administrative Motion to Consider Whether Cases

28 Should Be Related.

2O226 hi

2

Li

Li

NOTICE OF RELATED CASE PURSUANT TO CIVIL L.R. 3-12

C C Case4:09-cv-02306-CW Document253 Filed01/29/10 Page2 of 7

WJ
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Li

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U)

1 I. APPLICABLE STANDARD UNDER CIVIL L.R. 3-12

2

Under Civil Local Rule 3-12(a), an “action is related to another when: (1) The actions

3 concern substantially the same parties, property, transaction or event; and (2) It appears likely that

4 there will be an unduly burdensome duplication of labor and expense or conflicting results if the

5 cases are conducted before different judges.” Civil L.R. 3-12(a).

6

Whenever a party knows or believes that an action may be related to an action which is or

7 was pending in the Northern District, said party Hmust promptly file in the earliest-filed case an

8 Administrative Motion to Consider Whether Cases Should Be Related, pursuant to Civil L.R. 7-
L
9 11)”

10 II. Related Cases

11

The Calfornia Association ofPublic Authorities et al. v. Schwarzenegger et al. action

12 should be related to Martinez v. Schwarzenegger, Case No. C. 09-02306 CW and/or VL. v.

13 Wagner, Case No. CV 09-04668. Both of the apparently related cases are before the Honorable

14 Claudia Wilken.

15

The California Association ofPublic Authorities et al. v. Schwarzenegger et al. action, and

16 the apparently related cases involve substantially the same defendants and concern the same

17 wrongful act and occurrences, namely the passage and implementation of Assembly Bill X4 1 as it
.
18 relates to In-Home Supportive Services (“IHSS”) funding. As a result, the cases require

19 determination of substantially the same questions of fact and law. Specifically, each case involves

20 the State of California’s failure to comply with the federal law — including the Medicaid Act, the

21 Americans with Disabilities Act, and the Rehabilitation Act — when it dramatically reduced

22 funding to the IHSS program for purely buigetary reasons. As such, the following similar

23 questions of law and fact exist one or more. of the apparently related cases:

24

25

26

ITTIn addition to complying with Civil L.R. 7-11, a copy of the motion, together with proof of service pursuant to Civil L.R. 5-6, must be served on all known parties to each apparently related

27

action. A Chambers copy of the motion must be lodged with the assigned Judge in each apparently related case under Civil L.R. 5-1(b).” Civil L.R. 3-12(b).

28

2022631.1

2
NOTICE OF RELATED CASE PURSUANT TO CIVIL L.R. 3-12

C C Case4:09-cv-02306-CW Document253 Filed01/29/10 Page3 of 7

2
8
o
D -‘ W i< <
:i: °..

1

•

Whether the State failed to give the required consideration to the factors of

2

efficiency, economy, quality of care, and access to services prior to reducing IHSS

3

services, in violation of the federal Medicaid Act, 42 U. S.C. § 1396a(a)(30)(A);

4

•

Whether the decreased funding for IHSS services would be inconsistent with

5

Medicaid program’s mandated quality of care, and will not be sufficient to enlist

6

enough IHSS providers so that care and services under Medi-Cal are available at

7

least to the extent that such care and services are available to the general population

8

in the geographic area, in violation of the federal Medicaid Act, 42 U.s.c.

9

§ 1396a(a)(30)(A);

10

•

Whether decreased funding for IHSS services will violate the rights of Plaintiffs

11

and class members to be free from discrimination on the basis of their disability

12

under the ADA, 42 U.S.C. § 12132, by forcing disabled individuals who could

13

otherwise remain in their homes to enter nursing homes or other residential

14

institutions; and

15

•

Whether the decreased funding to IHSS services will violate the rights of Plaintiffs

16

and class members to be free from discrimination on the basis of their disability

17

under Section 504 of the Rehabilitation Act, 29 U.S.C. § 794(a), by forcing

18

.
disabled

.

.

.

individuals

who

could

.
otherwise

.
remain

.
in

their

homes

to

enter

nursing

19

homes or other residential institutions.

20

Accordingly, it appear likely that there will be an unduly burdensome duplication of labor

21 and expense or the possibility of confLicting results if the cases proceed before different judges.

22 L.R. 3-12(b)(2).

23 /1/

24 III

25 I/I

26 III

27 /7/

28 /7/

2022631.1

NOTICE OF RELATED CASE PURSUANT TO CIVIL L.R.3-12

C C Case4:09-cv-02306-CW Document253 Filed01/29/10 Page4 of 7

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1 III. CONCLUSION

2

As set forth above the Calfornia Association ofPublic Authorities et al. v.

3 Schwarzenegger et al. action is related to the Martinez v. Schwarzenegger, Case No. C. 09-02306

4 CW and/or VL. v. Wagner, Case No. CV 09-04668 actions.

5

6 DATED: January 2010 7 8 9

HOOPER, LTJNDY & BOOKMAN, INC.

By:

I

AIG J. CANNIZ ‘—

Attorneys for Plaintiffs

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

2022631.1

4
NOTICE OF RELATED CASE PURSUANT TO CIVIL L.R. 3-12

C C Case4:09-cv-02306-CW Document253 Filed01/29/10 Page5 of 7

1

PROOF OF SERVICE

2 STATE OF CALIFORNIA, COUNTY OF SAN FRANCISCO

3

At the time of service, I was over 18 years of age and not a party to this action. I am

employed in the County of San Francisco, State of California. My business address is 575 Market

4 Street, Suite 2300, San Francisco, California 94105.

5

On January 25, 2010, I served true copies of the following document(s) described as

NOTICE OF RELATED CASE PURSUANT TO CIVIL L.R. 3-12 TO BE FILED IN CASE

6 NO. C. 09-02306 (CW); ADMINISTRATIVE MOTION TO CONSIDER WHETHER

CASES SHOULD BE RELATED PURSUANT TO CIVIL L.R. 7-11 on the interested parties

7 in this action as follows:

8

SEE ATTACHED SERVICE LIST

9 BY MAIL: I enclosed the document(s) in a sealed envelope or package addressed to the persons

at the addresses listed in the Service List and placed the envelope for collection and mailing,

10 following our ordinary business practices. I am readily familiar with Hooper, Lundy &

Bookman, Inc.’s practice for collecting and processing correspondence for mailing. On the same

11 day that the correspondence is placed for collection and mailing, it is deposited in the ordinary

course of business with the United States Postal Service, in a sealed envelope with postage fully

g

12 prepaid.

o L1
o
DW
-‘

13

I declare under penalty of perjury under the laws of the United States of America that the

foregoing is true and correct and that I am employed in the office of a member of the bar of this

14 Court at whose direction the service was made.

15

Executed on January 25, 2010, at San Francisco, California.

16

-

17 o ‘18

DianaMorgan

I

19

20

21

22

23

24

25

26

27

28

2022631.1

NOTICE OF RELATED CASE PURSUANT TO CIVIL L.R. 3-12

C C Case4:09-cv-02306-CW Document253 Filed01/29/10 Page6 of 7

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1

SERVICE LIST

Putz, et al. v. Arnold Schwarzenegger, et al.

2

Anne Nelson Arkush

Stephen P. Berzon

3 Altshuler Berzon

Altshuler Berzon LLP

177 Post Street, Suite 300

177 Post Street, Suite 300

4 San Francisco, CA 94108

San Francisco, CA 94108

5 Gregory David Brown Office of the Attorney General
6 455 Golden Gate Avenue Suite 11000
7 San Francisco, CA 94102

Timothy John Buchanan McCormick Barstow, et al. 5 River Park Place East Fresno, CA 93720-1501

8 Susan M. Carson
Office of the Attorney General 9 455 Golden Gate Avenue
Suite 11000 10 San Francisco, CA 94102-7004

Scott Alan Kronland Altshuler Berzon, LLP 177 Post Street, Suite 300 San Francisco, CA 94108

11 Stacey M. Leyton Altshuler Berzon, LLP
12 177 Post Street, Suite 300 San Francisco, CA 94108
13

Karin S. Schwartz Office of the Attorney General 455 Golden Gate Avenue Suite 11000
San Francisco, CA 94102

14 David Abraham Silberman
San Mateo County Counsel’s Office 15 400 County Center
6 th Floor 16 Redwood City, CA 94063

Peder J. Thoreen Altshuler Berzon, LLP 177 Post Street, Suite 300 San Francisco, CA 94108

17 Emily Butler White Altshuler Berzon, LLP
18 177 Post Street, Suite 300 San Francisco, CA 94108
19
Michael A. Zwibelman 20 Office of the Attorney General
455 Golden Gate Avenue 21 Suite 11000
San Francisco, CA 94 102-7004 22
Anna Margaret Rich 23 National Senior Citizens Law Center
1330. Broadway, Suite 525 24 Oakland, CA 94612

Michael Gary Woods McCormick Barstow, et al. 5 River Park Place East Fresno, CA 93720-1501
Ann Esther Menasche Disability Rights California 1111 Sixth Avenue, Suite 200 San Diego, CA 92101
Charles Hobson Wolfinger, jr. Attorney at Law 4655 Cass Street, #314 San Diego, CA 92109-2811

25 Dara Lynn Schur Disability Rights California
26 Bay Area Regional Office 1330 Broadway, Suite 500
27 Oakland, CA 94612

Deborah Alyse Dorfman 3580 Wilshire Blvd., #902 Los Angeles, CA 90010

28

202263 1.1

NOTICE OF RELATED CASE PURSUANT TO CIVIL L.R. 3-12

C C Case4:09-cv-02306-CW Document253 Filed01/29/10 Page7 of 7

ci incUp, z(’o,—

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1 Frederick Philip Nisen Disability Rights California
2 Bay Area Regional Office 1330 Broadway, Suite 500
3 Oakland, CA 94612
4 Marilyn Lee Holle Disability Rights California
5 3580 Wilshire Blvd., Suite 902 Los Angeles, CA 90010
6 Paula D. Peariman
7 Western Law Center for Disability Rights Loyola Law School
8 919 Albany Street Los Angeles, CA 90015
9 Sujatha Jagadeesh Branch
10 Disability Rights California 100 Howe Avenue, Suite 235N
11 Sacramento, CA 95825
12 Eve Hedy Cervantez Altshuler Berzon LLP
13 177 Post Street, Suite 300 San Francisco, CA 94108
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

Jung Pham Disability Rights California Bay Area Regional Office 1330 Broadway, Suite 500 Oakland, CA 94612
Melinda Ruth Bird Disability Rights California 3580 Wilshire Blvd., Suite 902 Los Angeles, CA 90010
Shawna L Parks Western Law Center for Disability Rights Loyola Law School 919 Albany Street Los Angeles, CA 90015
Casey Austin Roberts Altshuler Berzon LLP 177 Post Street, Suite 300 San Francisco, CA 94108

202263 1.1

NOTICE OF RELATED CASE PURSUANT TO CIVIL L.R. 3-12

 
 Case4:09-cv-02306-CW Document254 Filed02/02/10 Page1 of 2

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA
RELATED CASE ORDER
A Motion for Administrative Relief to Consider Whether Cases Should be Related or a Sua Sponte Judicial Referral for Purpose of Determining Relationship (Civil L.R. 3-12) has been filed. The time for filing an opposition or statement of support has passed. As the judge assigned to the earliest filed case below that bears my initials, I find that the more recently filed case that I have initialed below is related to the case assigned to me, and such case shall be reassigned to me.

C 09-02306 CW

Martinez et al v. Schwarzenegger et al

C 10-00344 CRB Putz et al v. Schwarzenegger et al

I find that the above case is related to the case assigned to me. CW

ORDER
Counsel are instructed that all future filings in any reassigned case are to bear the initials of the newly assigned judge (“CW”) immediately after the case number. A case management conference in the reassigned case will be held on May 11, 2010, at 2:00 p.m. The parties shall adjust the dates for the disclosures and report required by FRCivP 16 and 26 accordingly. Unless otherwise ordered, any dates for hearing noticed motions are vacated and must be renoticed by the moving party before the newly assigned judge; any deadlines set by the ADR Local Rules remain in effect; and any deadlines established in a case management order continue to govern, except dates for appearance in court, which will be rescheduled by the newly assigned judge.

2/2/10 Dated:________________
Judge Claudia Wilken

-1-

Case4:09-cv-02306-CW Document254 Filed02/02/10 Page2 of 2

CERTIFICATE OF SERVICE
I certify that on the date stated below, I lodged a copy of this order with each judicial officer and I mailed a copy to each counsel of record or pro se party in the cases listed above.
Richard W. Wieking, Clerk

DATED: _______________________

By: Deputy Clerk

Copies to: Courtroom Deputies Case Systems Administrators Counsel of Record
Entered into Assignment Program:

(date)

-2-

 
 Case4:09-cv-02306-CW Document258 Filed02/11/10 Page1 of 2

1 STEPHEN P. BERZON (SBN 46540) SCOTT A. KRONLAND (SBN 171693)
2 STACEY M. LEYTON (SBN 203827) PEDER 1. THOREEN (SBN 217081)
3 ANNE N. ARKUSH (SBN 254985) EMILY B. WHITE (SBN 254294)
4 Altshuler Berzon LLP 177 Post Street, Suite 300
5 San Francisco, California 94108 Telephone: (415) 421-7151
6 Facsimile: (415) 362-8064 sberzon@altshulerberzon.com
7 skronland@altshulerberzon.com sleyton@altshulerberzon.com
8 pthoreen@altshulerberzon.com aarkush@altshulerberzon.com
9 ewhite@altshulerberzon.com

10 Attorneys for Plaintiffs

11

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

12

SAN FRANCISCO/OAKLAND DIVISION

13 SIA CHUE YANG, PATSY MILLER, LYDIA ) Case No. C 09-02306 CW

DOMINGUEZ, ALEX BROWN, by and through )

14 his mother and next friend Lisa Brown, DONNA ) PLAINTIFFS' OBJECTIONS TO STATE

BROWN, CHLOE LIPTON, by and through her ) DEFENDANTS' EVIDENCE IN

15 conservator and next friend Julie Weissman-

) SUPPORT OF STATE'S OPPOSITION

Steinbaugh, HERBERT M. MEYER, LESLIE ) TO MOTION FOR CLASS

16 GORDON, CHARLENE AYERS, WILLIE

) CERTIFICATION

BEATRICE SHEPPARD, and ANDY

)

17 MARTINEZ, on behalf of themselves and a class )

of those similarly situated; SERVICE

) DATE:

Submitted on Papers

18 EMPLOYEES INTERNATIONAL UNION

) LOCATION: Courtroom 2, 4th Floor

UNITED HEALTHCARE WORKERS WEST; )

19 SERVICE EMPLOYEES INTERNATIONAL

)

UNION UNITED LONG-TERM CARE

)

20 WORKERS; SERVICE EMPLOYEES

)

INTERNATIONAL UNION LOCAL 521; and )

21 SERVICE EMPLOYEES INTERNATIONAL

)

UNION CALIFORNIA STATE COUNCIL,

)

22

)

Plaintiffs,

)

23

)

v.

)

24

)

ARNOLD SCHW ARZENEGGER, Governor of )

25 the State of California; JOHN A. WAGNER,

)

Director of the California Department of Social )

26 Services; DAVID MAXWELL-JOLL Y, Director )

of the California Department of Health Care

)

27 Services; JOHN CHIANG, California State

)

Controller; FRESNO COUNTY; and FRESNO )

28 COUNTY IN-HOME SUPPORTIVE SERVICES)

PUBLIC AUTHORITY,

)

)

Defendants.

Case4:09-cv-02306-CW Document258 Filed02/11/10 Page2 of 2

1

Plaintiffs hereby assert the following objections to the evidence submitted by Defendants Arnold

2 Schwarzenegger, John A. Wagner, and David Maxwell-Jolly (collectively "State Defendants") in support

3 of State Defendants' opposition to Plaintiffs' motion for class certification.

4 Eileen Carroll Declaration (Dkt. 252)

5 Paragraph/ Exhibit

Grounds for Objection

6 ~5, Ex. A ("spreadsheet prepared by

Inadmissible hearsay under Fed. R. Evid. 801, 802.

[California Department of Social Services] Information in spreadsheet is offered for the truth of the 7 staff that sets forth the wages and benefits matters asserted (State Opp. at 2,4, 7, 9, 10, 12), and is

in the 21 counties as of July 1, 2009, after thus inadmissible hearsay. 8 the reduction in the State participation

level"). 9

Not sufficiently supported under Fed. R. Evid. 602, 701. Data and methodology leading to information reported

are not established, so foundation for personal knowledge

10

of these results is not established. As an example of the

spreadsheet's unreliability, the spreadsheet incorrectly

11

lists the pre-July 1, 2009 wage for Contra Costa County

as $11.25, but the pre-July 1, 2009 wage for Contra

12

Costa County was actually $11.50. See Roth Dec1.~5(b)

(Dkt. 43). Plaintiffs also object because State Defendants

13

have not indicated who in particular prepared the

spreadsheet. 14

~8, Ex. C ("chart CDSS staff prepared

Inadmissible hearsay under Fed. R. Evid. 801, 802.

15 setting forth the 'out' clause or 'reopener' Information in chart is offered for the truth of the matters

clause language, if any, contained in the asserted (State Opp. at 3, 8), and is thus inadmissible

16 MOU for each of those counties").

hearsay.

17

Not sufficiently supported under Fed. R. Evid. 602, 701.

Data and methodology leading to information reported

18

are not established, so foundation for personal knowledge

of the information contained in the chart is not

19

established.

20

21

Dated: February 11, 2010

22

23

24

25

26

27

STEPHEN P. BERZON (SBN 46540) SCOTT KRONLAND (SBN 171693) STACEY M. LEYTON (SBN 203827) PEDER 1. THOREEN (SBN 217081) ANNE N. ARKUSH (SBN 254985) EMILY B. WHITE (SBN 254294) Altshuler Berzon LLP
By:/s/ Emily B. White Emily B. White Attorneys for Plaintiffs

28

1

Plaintiffs' Objections to State Defendants' Evidence

 
 Case4:09-cv-02306-CW Document261 Filed02/11/10 Page1 of 3

1 STEPHEN P. BERZON (SBN 46540) SCOTT A. KRONLAND (SBN 171693)
2 STACEY M. LEYTON (SBN 203827) PEDER J. THOREEN (SBN 217081)
3 ANNE N. ARKUSH (SBN 254985) EMILY B. WHITE (SBN 254294)
4 Altshuler Berzon LLP 177 Post Street, Suite 300
5 San Francisco, California 94108 Telephone: (415) 421-7151
6 Facsimile: (415) 362-8064 sberzon@altshulerberzon.com
7 skronland@altshulerberzon.com sleyton@altshulerberzon.com
8 pthoreen@altshulerberzon.com aarkush@altshulerberzon.com
9 ewhite@altshulerberzon.com

10 Attorneys for Plaintiffs

11

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

12

SAN FRANCISCO/OAKLAND DIVISION

13 SIA CHUE YANG, PATSY MILLR, LYDIA ) Case No. C 09-02306 CW

DOMINGUEZ, ALEX BROWN, by and through )

14 his mother and next friend Lisa Brown, DONNA ) PLAINTIFFS’ OBJECTIONS TO

BROWN, CHLOE LIPTON, by and through her ) FRESNO DEFENDANTS’ EVIDENCE IN

15 conservator and next friend Julie Weissman-

) SUPPORT OF FRESNO DEFENDANTS’

Steinbaugh, HERBERT M. MEYER, LESLIE ) OPPOSITION TO MOTION FOR CLASS

16 GORDON, CHARLENE AYERS, WILLIE

) CERTIFICATION

BEATRICE SHEPPARD, and ANDY

)

17 MARTINEZ, on behalf of themselves and a class )

of those similarly situated; SERVICE

) DATE:

Submitted on Papers

18 EMPLOYEES INTERNATIONAL UNION

) LOCATION: Courtroom 2, 4th Floor

UNITED HEALTHCARE WORKERS WEST; )

19 SERVICE EMPLOYEES INTERNATIONAL )

UNION UNITED LONG-TERM CARE

)

20 WORKERS; SERVICE EMPLOYEES

)

INTERNATIONAL UNION LOCAL 521; and )

21 SERVICE EMPLOYEES INTERNATIONAL )

UNION CALIFORNIA STATE COUNCIL,

)

22

)

Plaintiffs,

)

23

)

v.

)

24

)

ARNOLD SCHWARZENEGGER, Governor of )

25 the State of California; JOHN A. WAGNER, )

Director of the California Department of Social )

26 Services; DAVID MAXWELL-JOLLY, Director )

of the California Department of Health Care

)

27 Services; JOHN CHIANG, California State

)

Controller; FRESNO COUNTY; and FRESNO )

28 COUNTY IN-HOME SUPPORTIVE SERVICES )

PUBLIC AUTHORITY,

)

Defendants.

)

)

Case4:09-cv-02306-CW Document261 Filed02/11/10 Page2 of 3

1

Plaintiffs hereby assert the following objections to the evidence submitted by Defendants Fresno

2 County and Fresno County In-Home Supportive Services Public Authority (collectively, “the County” or

3 “Fresno Defendants”) in support of Fresno Defendants’ opposition to Plaintiffs’ motion for class

4 certification.

5

6 Request for Judicial Notice of Declaration of Sanja Kovacevic (Dkt. 250)

7 Paragraph/ Exhibit

Grounds for Objection

8 Exhibit 1, ¶ 6 (“Fresno County’s wages Not sufficiently supported under Fed. R. Evid. 602, 701.

and benefits were negotiated through an No basis is provided for Ms. Kovacevic’s assertion; she

9 agreement with an assumption that the

fails to establish what “assumption[s]” she is talking

State maximum wages and benefits would about or how she knows them, and she fails to establish

10 remain at $12.10.”)

that she was party to the “negotait[ions].” Even if she

was present at negotiations, she could only offer an

11

opinion as to her own assumptions, not the County’s, and

certainly not the union’s. 12

Exhibit 1, ¶¶ 6 (“If Fresno County

Not sufficiently supported under Fed. R. Evid. 602, 701.

13 remains at the wage/benefit cost of

Data and methodology leading to results or speculation

$11.10, while the State maximum is

about budgetary calculations are not established, so

14 reduced to $10.10, the County would

foundation for personal knowledge of these results is not

incur an additional $5,947,265 in costs on established.

15 an annual basis . . . .”), 7 (“[T]he county

would still realize increased costs of

16 $2,081,543 annually . . . .”), 8

(“$5,356,632 is a loss that is attributed to

17 the IHSS program.”), 9 (“Of this

discretionary portion, approximately 66%

18 is used for IHSS program costs . . . .”), 10

(“[I]n order to transfer money . . . to pay

19 for the cost of maintaining IHSS provider

wages, the County must make a finding

20 that a transfer of funds from these

programs to Social Services would

21 constitute the most cost-effective use of

available resources to maximize client

22 outcomes. This is not reasonably

likely.”), 11 (“The largest portion of the

23 Health Realignment allocation is

expended in largely non-discretionary

24 areas . . . .”), 12 (“Mental Health

Realignment funds are utilized to meet

25 four basic State mandates . . . .”), 13 (“If

such a plan is not achieved, several

26 hundred additional county positions and

corresponding critical services would

27 have to be eliminated in order to balance

expenses and revenues.”), 14 (“[T]he

28 Governor’s May 14th budget proposal

1

Plaintiffs’ Objections to Fresno Defendants’ Evidence

Case4:09-cv-02306-CW Document261 Filed02/11/10 Page3 of 3

1 would reduce services to elderly, children

2

and needy families in Fresno County by approximately $25.8 Million beyond any

3

reductions that Fresno County has already included in its budget.”)

4

5 Dated: February 11, 2010
6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

STEPHEN P. BERZON (SBN 46540) SCOTT KRONLAND (SBN 171693) STACEY M. LEYTON (SBN 203827) PEDER J. THOREEN (SBN 217081) ANNE N. ARKUSH (SBN 254985) EMILY B. WHITE (SBN 254294) Altshuler Berzon LLP By:/s/ Emily B. White
Emily B. White Attorneys for Plaintiffs
2

Plaintiffs’ Objections to Fresno Defendants’ Evidence

 
 FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

 LYDIA DOMINGUEZ, by and through

her mother and next friend Lisa

Brown; ALEX BROWN, by and

through his mother and next friend

Lisa Brown; D ONNA BROWN, by and

through her conservator and next

friend Julie Weissman-

Steinbaugh; CHLOE LIPTON, by and

through her conservator and next

friend Julie Weissman-Steinbaugh;

HERBERT M. M EYER, on behalf of

themselves and a class of those

 similarly situated; L ESLIE GORDON,
on behalf of themselves and a

class of those similarly situated;

CHARLENE AYERS, on behalf of

themselves and a class of those

similarly situated; W ILLIE BEATRICE

SHEPPARD, on behalf of themselves

and a class of those similarly

situated; ANDY MARTINEZ, on

behalf of themselves and a class

of those similarly situated; S ERVICE

EMPLOYEES INTERNATIONAL UNION

UNITED HEALTH CARE WORKERS

WEST;



3363

3364

DOMINGUEZ v. S CHWARZENEGGER

 SERVICE EMPLOYEES INTERNATIONAL
UNION UNITED LONG-TERM CARE WORKERS; SERVICE EMPLOYEES INTERNATIONAL UNION LOCAL 521; SERVICE EMPLOYEES INTERNATIONAL UNION CALIFORNIA STATE COUNCIL,
Plaintiffs-Appellees,

v.

ARNOLD SCHWARZENEGGER,

Governor of the State of

California; JOHN A. W AGNER, Director of the California



Department of Social Services;

DAVID MAXWELL-JOLLY, Director of

the California Department of

Health Care Services; J OHN CHIANG

California State Controller,

Defendants-Appellants,

No. 09-16359
D.C. No. 4:09-cv-02306-CW
OPINION

and

FRESNO COUNTY; FRESNO COUNTY IN-HOME SUPPORTIVE SERVICES PUBLIC AUTHORITY,
 Defendants.

Appeal from the United States District Court for the Northern District of California
Claudia Wilken, District Judge, Presiding
Argued and Submitted January 19, 2010—Pasadena, California
Filed March 3, 2010

DOMINGUEZ v. S CHWARZENEGGER

3365

Before: Stephen Reinhardt, William A. Fletcher and Milan D. Smith, Jr., Circuit Judges.

Opinion by Judge Milan D. Smith, Jr.

3368

DOMINGUEZ v. S CHWARZENEGGER

COUNSEL
Stephen P. Berzon, Scotta A. Kronland, Stacey M. Leyton, Peder J. Thoreen, and Anne N. Arkush of Altshuler Berzon LLP, San Francisco, California, for the plaintiffs-appellees.
Edmund G. Brown, Jr., Attorney General of California, Douglas N. Press, Senior Assistant Attorney General, Susan M. Carson, Supervising Deputy Attorney General, and Gregory D. Brown and Michael A. Zwibelman, Deputy Attorneys General, San Francisco, California, for the State defendantsappellants.
OPINION
MILAN D. SMITH, JR., Circuit Judge:
In 1973, the State of California established the In-Home Supportive Services (IHSS) program to provide in-home assistance and care to low-income elderly and disabled persons who otherwise would be unable to remain safely in their homes. See Cal. Welf. & Inst. Code § 12300. PlaintiffsAppellees, a putative class comprised of recipients of the State’s IHSS program and the unions who represent IHSS providers, seek to enjoin state legislation that reduces the state contribution to wages paid to IHSS providers because it is preempted by Section 30(A) of the Medicaid Act. The district court issued a preliminary injunction. We affirm.

DOMINGUEZ v. S CHWARZENEGGER

3369

FACTUAL AND PROCEDURAL BACKGROUND

Under Title XIX of the Social Security Act (the Medicaid Act), 42 U.S.C. § 1396 et seq., the federal government grants states funds to use towards state-administered programs that provide medical assistance to low income individuals. 1 To receive federal funds, states must administer their programs in compliance with individual “State plans for medical assistance,” which require approval by the federal Secretary of Health and Human Services. 42 U.S.C. § 1396-1. The California Department of Health Care Services (Department) is designated the “single State agency established or designated to administer or supervise the administration of the [State] plan.” 42 C.F.R. § 431.10(b).

IHSS is one of the programs for which California receives

federal funding under its version of Medicaid, known as

Medi-Cal. Medi-Cal operates via a prospective reimburse-

ment system, whereby the State “sets reimbursement rates for

specific services, regardless of where those services are per-

formed.” Orthopaedic, 103 F.3d at 1493. IHSS recipients

receive a host of “supportive services . . . [,] which make it

possible for the recipient to establish and maintain an inde-

pendent living arrangement. ” Cal. Welf. & Inst. Code

§ 12300(b). These services, which are provided in the benefi-

ciary’s home, include assistance with ambulation, bathing,

oral hygiene, grooming, dressing, bowel and bladder care,

feeding, and self-administration of medications.

Id.

§ 12300(b)-(d). There are over 360,000 IHSS providers serv-

ing 440,000 individuals in California; sixty-two percent of

IHSS recipients receive care from an IHSS provider who is

1For a more detailed discussion of the Medicaid Act, we refer the reader to our prior decisions. See, e.g., Cal. Pharm. Ass’n v. Maxwell-Jolly , slip op. at 3331-61 (9th Cir. March 3, 2010) ( California Pharmacists II ); Indep. Living Ctr. of S. Cal., Inc. v. Maxwell-Jolly , 572 F.3d 644 (9th Cir. 2009) (Independent Living II); Indep. Living Ctr. of S. Cal., Inc. v. Shewry, 543 F.3d 1050 (9th Cir. 2008) ( Independent Living I); Orthopaedic Hosp. v. Belshe, 103 F.3d 1491 (9th Cir. 1997).

3370

DOMINGUEZ v. S CHWARZENEGGER

also a relative. In many cases, supportive services are provided by a parent, who is eligible to receive payment for caring for his or her child only upon leaving full-time employment or if the parent is unable to obtain full-time employment because no other suitable provider is available and the child would be left with inadequate care. See Cal. Welf. & Inst. Code § 12300(e).

The IHSS program is paid for and administered through a combination of federal, state, and county funds. The State has authorized counties to provide for the delivery of IHSS services by one of two methods: first, a county may hire IHSS providers directly; or second, a county may contract with a nonprofit consortium (NPC) or establish a public authority (PA)—an entity separate from the county that performs public and essential governmental functions necessary to deliver IHSS services. See Cal. Welf. & Inst. Code §§ 12302, 12301.6(a)-(b). Fifty-six of the State’s fifty-eight counties have established a NPC or PA. NPCs and PAs are considered employers of IHSS providers for purposes of collective bargaining over wages, hours, and other terms and conditions of employment, although IHSS recipients retain the right to hire, fire, and supervise the work of their individual IHSS provider. Id. § 12301.6(c).

In counties that have established a NPC or PA, wages and benefits are established through collective bargaining between the NPC or PA and the providers’ union. Cal. Welf. & Inst. Code § 12301.6(c). Before any increase in wages or benefits may take effect, it must be approved by the Department, which determines whether the increase is consistent with federal law and ensures that federal financial participation is available. Id. § 12306.1(a).

For the IHSS program, the California legislature has

directed the Department to establish a provider reimburse-

ment rate methodology that: (1) is consistent with the func-

tions and duties of NPCs and PAs; (2)

“[m]akes any

DOMINGUEZ v. S CHWARZENEGGER

3371

additional expenditure of state general funds subject to appro-

priation in the annual Budget Act”; and (3) “[p]ermits county-

only funds to draw down federal financial participation con-

sistent with federal law. ” Id. § 14132.95(j)(2)(A)(i)-(iii). In

establishing its rate-setting methodology, the Department is

also authorized to “[d]eem the market rate for like work in

each county . . . to be the cap for increases in payment rates

for individual practitioner services, ” and “[p]rovide for con-

sideration of county input concerning the rate necessary to

ensure access to services in that county.

” Id.

§ 14132.95(j)(2)(C).

Following the passage of the American Recovery and Rein-

vestment Act of 2009 (ARRA), the federal government con-

tributes approximately sixty-two percent of the overall cost of

the IHSS program.2 Of the remaining “non-federal share,” the

State contributes sixty-five percent while the county contrib-

utes thirty-five percent. Cal. Welf. & Inst. Code § 12306(b).

However, the State’s contribution is subject to a statutory cap.

Prior to implementation of the statute at issue in this case,

California Welfare & Institutions Code § 12306.1(d)(6)

(effective July 1, 2009), the State contributed sixty-five per-

cent of the non-federal share up to $12.10 per hour.

Id.

§ 12306.1(c)-(d). That statutory cap has increased over time,

beginning at $8.10 per hour in 2000 and reaching $12.10 by

way of four statutory increases. See id. § 12306.1(d)(1)-(5).

However, on February 20, 2009, the Governor signed § 12306.1(d)(6) into law. Scheduled to take effect July 1, 2009, § 12306.1(d)(6) reduces the statutory maximum for which the State would contribute its proportionate share for IHSS wages and benefits from $12.10 per hour to $10.10 per hour. In other words, the State’s maximum contribution to wages and benefits would be reduced from sixty-five percent of the non-federal share of an hourly rate up to $12.10 to

2Prior to enactment of the ARRA, the federal government contributed fifty percent of the program’s costs.

3372

DOMINGUEZ v. S CHWARZENEGGER

sixty-five percent of the non-federal share of an hourly rate up to $10.10.

The new law does not require counties to reduce wages and benefits paid to IHSS service providers. Counties are permitted to make up the difference between the State’s current contribution and any reduction that may result from the State’s decreased contribution. Currently, thirty-four of the fifty-six NPCs and PAs pay IHSS providers $10.10 per hour or less in wages and benefits, so there would be no reduction in the State’s contribution in any of those counties, including Los Angeles County in which forty-two percent of all IHSS services are provided. Twenty-two counties are, however, directly affected by the rate change. According to Plaintiffs, in response to § 12306.1(d)(6), fourteen of those counties that were paying wages and benefits of more than $10.10 per hour have thus far submitted Rate Change Requests to the Department of Social Services (DSS), seeking to reduce wages effective July 1, 2009. 3 All of these Rate Change Requests were approved by DSS and the Department.

On May 26, 2009, Plaintiffs brought this action challenging § 12306.1(d)(6) under the Supremacy Clause, claiming that in enacting and implementing § 12306.1(d)(6), the State failed to comply with the procedural and substantive requirements of 42 U.S.C. § 1396a(a)(30)(A) (hereafter § 30(A)).4 After noting that the State conceded that the legislature did not con-

3On May 1, 2009, DSS issued All-County Information Notice No. I-3409 notifying counties of § 12306.1(d)(6). The notice instructed: “Counties currently providing wages and individual health benefits above $10.10 must submit a PA Rate Change Request to reflect the change in the maximum amount in which the state will participate. A letter of intent to complete a Rate Change Request must be submitted to [DSS] by June 1, 2009 from each of the counties affected by the statutory change. ”
4Plaintiffs also alleged unlawful discrimination under the Americans with Disabilities Act and Rehabilitation Act. The district court did not address Plaintiffs’ ADA or Rehabilitation Act claims and they are not before us on appeal.

DOMINGUEZ v. S CHWARZENEGGER

3373

sider the § 30(A) factors prior to adopting § 12306.1(d)(6), the district court granted the preliminary injunction. Defendants appealed.

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1292(a)(1). A district court’s decision to grant or deny a preliminary injunction is reviewed for abuse of discretion. Indep. Living II, 572 F.3d at 651. Reviewing for abuse of discretion, first, we “determine de novo whether the trial court identified the correct legal rule to apply to the relief requested.” United States v. Hinkson , 585 F.3d 1247, 1262 (9th Cir. 2009) (en banc). If the trial court did not identify the correct legal rule, it abused its discretion. Id. Second, we must determine if the district court’s “application of the correct legal standard was (1) ‘illogical,’ (2) ‘implausible,’ or (3) without ‘support in inferences that may be drawn from the facts in the record.’ ” Id. (quoting Anderson v. City of Bessemer City , 470 U.S. 564, 577 (1985)).

In granting a request for a preliminary injunction, a district court abuses its discretion if it “base[s] its decision on an erroneous legal standard or clearly erroneous findings of fact. ” Earth Island Inst. v. U.S. Forest Serv. , 442 F.3d 1147, 1156 (9th Cir. 2006), abrogated on other grounds by Winter v. Natural Res. Def. Council, Inc. , 129 S. Ct. 365 (2008). We review conclusions of law de novo and findings of fact for clear error. Id. Under this standard, “[a]s long as the district court got the law right, it will not be reversed simply because the appellate court would have arrived at a different result if it had applied the law to the facts of the case. ” Id. (internal quotation marks omitted).

DISCUSSION

[1] In seeking a preliminary injunction in a case in which the public interest is involved, Plaintiffs must show that: (1)

3374

DOMINGUEZ v. S CHWARZENEGGER

they are likely to succeed on the merits; (2) they are likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in their favor; and (4) an injunction is in the public interest. Cal. Pharms. Ass’n v. Maxwell-Jolly, 563 F.3d 847, 849 (9th Cir. 2009) ( California Pharmacists I) (citing Winter, 129 S. Ct. at 376); see also Am. Trucking Ass’ns, Inc. v. City of Los Angeles. , 559 F.3d 1046, 1052 (9th Cir. 2009).

I. Likelihood of Success on the Merits

[2] Section 30(A) provides that a State plan must “provide such methods and procedures relating to . . . the payment for . . . care and services . . . as may be necessary . . . to assure that payments are consistent with efficiency, economy, and quality of care. ” 42 U.S.C. § 1396a(a)(30)(A) (hereafter § 30(A)). In Orthopaedic, we held that § 30(A) requires

the Director [to] set hospital outpatient reimbursement rates that bear a reasonable relationship to efficient and economical hospitals’ costs of providing quality services, unless the Department shows some justification for rates that substantially deviate from such costs. To do this, the Department must rely on responsible cost studies, its own or others’, that provide reliable data as a basis for its rate setting.

103 F.3d at 1496. The principal issue in this appeal is whether the district court erred in holding that Orthopaedic applies to the State’s enactment of California Welfare & Institutions Code § 12306.1(d)(6).

[3] As we will explain, both the legislature and the Department recognize that reimbursement rates—that is, providers’ wages and benefits—are directly correlated to ensuring that services are consistent with efficiency, economy, and quality of care, and sufficient to ensure access to services under the IHSS program. Following passage of § 12306.1(d)(6), coun-

DOMINGUEZ v. S CHWARZENEGGER

3375

ties, unsurprisingly, reduced the hourly wage paid to IHSS providers. As we explained in Orthopaedic, “payments for [Medi-Cal] services must be consistent with efficiency, economy, and quality of care, and . . . those payments must be sufficient to enlist enough providers to provide access to Medicaid recipients.” 103 F.3d at 1496. Because section 12306.1(d)(6) directly affects what Medi-Cal providers are paid for providing services, it falls within § 30(A). Thus, we hold that before enacting legislation that has the effect of lowering payments to providers—here, § 12306.1(d)(6)—the State must study the impact of that decision on the statutory factors set forth in § 30(A). See California Pharmacists II , slip op. at 3346.

A. The Application of § 30(A) to Cal. Welf. & Inst. Code § 12306.1(d)(6)

The State argues that Orthopaedic does not apply to § 12306.1(d)(6) because that section does not set medical reimbursement rates. According to the State, Orthopaedic is concerned with ensuring that the State follows adequate procedures to assure that reimbursement rates are consistent with the statutory factors set forth in § 30(A)—efficiency, economy, access, and quality of care. However, § 12306.1(d)(6) neither sets rates, nor changes the procedure in place, i.e., the collective bargaining process, to ensure that wages and benefits paid to IHSS providers are consistent with those statutory factors. Rather, § 12306.1(d)(6) merely lowers the State’s contribution toward wages and benefits set by the counties pursuant to collective bargaining.

[4] We are not persuaded by the State’s attempt to distinguish its rate of reimbursement to providers from its contribution to the amount counties pay providers in the IHSS context. The State claims that it has removed itself from the ratesetting process and left it up to the counties and providers to negotiate rates through collective bargaining. However, by limiting its contribution to its portion of the non-federal share,

3376

DOMINGUEZ v. S CHWARZENEGGER

the State injects itself into the collective bargaining process. Indeed, the statutory cap that the State sets on its contribution provides a powerful bargaining chip to both providers and NPCs or PAs during negotiations over wages and benefits. Prior to § 12306.1(d)(6), providers could seek hourly wages and benefits up to $12.10 knowing that counties would have to contribute just 35 percent of their non-federal share. After the passage of the current § 12306.1(d)(6), providers confront the reality that any hourly wage above $10.10 would be borne entirely by the county.

Similarly, the State argues that the collective bargaining process is an adequate procedure under Orthopaedic to assure that rates are consistent with efficiency, economy, and quality of care, and sufficient to ensure access. That may be true, though we note that nothing in the record demonstrates that the Department has conducted any analysis or study regarding the effect of the collectively bargained rates on the statutory factors. But, in any event, Plaintiffs are not challenging those collectively bargained rates, nor are they challenging the collective bargaining process as a method of establishing rates. Rather, they are challenging the procedural adequacy of the legislature’s decision to decrease its funding of those rates. As we have explained, decreasing the amount the State contributes to those rates is as integral to the collective bargaining process as the negotiations themselves, because it directly impacts the amount at which rates will ultimately be set.

The record proves the point in this case. Approximately fourteen counties submitted Rate Change Requests after receiving notice of § 12306.1(d)(6). At least two of those Rate Change Requests expressly state that the decision to reduce the hourly wage for IHSS providers “is due to the change in the State Participation Rate, effective July 1, 2009. ” These changes demonstrate that the amount the State determines it will contribute to IHSS providers’ wages and benefits alters the amount counties are willing to pay IHSS providers for their services—something that the State itself recognized as

DOMINGUEZ v. S CHWARZENEGGER

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impacting IHSS recipients’ access to services. See Cal. Welf. & Inst. Code § 14132.95(j)(2)(C).5

The Department itself has acknowledged the relationship between reimbursement rates and access to in-home supportive services. In the State plan, the Department has articulated its policy that “reimbursement rates for Personal Care Services shall not be less than levels necessary to achieve adequate access to these services, but shall not exceed the lesser of specified limits, consistent with the requirements of [§ 30(A)].” The State plan also provides that “[t]o the extent that the Department finds that sufficient access to services is available, any rate increases granted under this program shall be no greater than the funds appropriated by the Legislature for such purpose. ” (emphasis added). The Department has thus recognized that rate increases are subject to the availability of State funds and has expressly conditioned its approval over such increases on a finding that sufficient access to services is otherwise available. The corollary must also be true. That is, the same oversight exists for any decrease in rates brought about by the availability of State funds. The Department is thus well aware that prior to approving reimbursement rates established through collective bargaining, it must determine whether sufficient access to services is available. Cf. Orthopaedic, 103 F.3d at 1497 (rejecting the State’s argument

5Indeed, in establishing the IHSS program, the State left the bulk of administrative duties to the counties. However, before entrusting the counties to administer the program, the State authorized counties to provide for the delivery of IHSS services by either contracting directly with IHSS providers or by establishing NPCs or PAs that would engage with providers in collective bargaining. See Cal. Welf. & Inst. Code § 12301.6(c). The State further directed the Department to establish a provider reimbursement rate methodology that would be consistent with the manner in which NPCs and PAs were constituted. See id. § 14132.95(j)(2)(A)(i). In directing the Department to consider a host of relevant factors in establishing its rate-setting methodology, the State recognized that the hourly wage at which providers would be paid would have a direct impact upon “access to services in that county. ” Id. § 14132.95(j)(2)(C).

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DOMINGUEZ v. S CHWARZENEGGER

that it does not have to pay the costs associated with quality of care because hospitals are required to provide such care as a result of contractual obligations and licensing requirements).

Likewise, the Department has recognized the direct link between the State’s change in contribution rate and the resulting change in reimbursement rates. In April 2009, the Department sent the United States Department of Health and Human Services (HHS) an analysis of § 12306.1(d)(6), providing its arguments as to why § 12306.1(d)(6) did not violate newly enacted requirements of ARRA. That analysis explained the reduction in the State’s contribution under § 12306.1(d)(6), including that “funding has been reduced so that the maximum wage participation level will be $10.10 per hour starting July 1, 2009. As a result, the State’s conditional approvals of the PA rates are no longer effective and each of the counties in question will need to request the State’s approval of another PA rate. . . . If in connection with that a county then chooses to negotiate different wages in excess of the $10.10 maximum wage participation level, it will be doing so voluntarily and not because of any State requirements. ” Thus, the State explicitly invalidated its prior approval of PA rates, previously negotiated via collective bargaining, as a result of § 12306.1(d)(6).

[5] In any event, the State’s obligation to consider whether providers’ “payments are consistent with efficiency, economy, and quality of care, ” § (30)(A), is independent of whatever wages and benefits are set pursuant to collective bargaining. Notably, in concluding that § 12306.1(d)(6) did not render the State ineligible for increased funding under ARRA, HHS advised the State that if the Department were to approve provider wage rates at a level less than that recommended by the county, “the State would need to assure that the lack of funding from local sources will not result in lowering the amount, duration, scope or quality of care and services available under the plan. ”

DOMINGUEZ v. S CHWARZENEGGER

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The State argues that there are in excess of 14,000 IHSS

providers listed in county registries, implying that there can

be no problem with “access” to services following the legisla-

ture’s decision to cut its contribution to wages and benefits

under § 12306.1(d)(6). But the fact that there were 14,000

available IHSS providers in county registries

before

§ 12306.1(d)(6)’s rate cut took effect does little to ensure suf-

ficiency of access to quality services after a reduction in

wages and benefits. Regardless, as we explained in Orthopae-

dic, “[d]e facto access, produced by factors totally unrelated

to reimbursement levels, does not satisfy the requirement of

[§ 30(A)].” 103 F.3d at 1498. Sixty-two percent of IHSS

recipients receive care from an IHSS provider who is also a

relative. Allowing the State to rely on the fact that so many

IHSS recipients depend on care from a relative, who may

often have no other choice than to provide such services,

would allow the State “to ignore the relationship of reim-

bursement levels to provider costs when determining whether

payments are sufficient to ensure access to quality services. ”

Id. Moreover, by focusing on quantity of providers, the State

fails to consider potential effects on quality of care.

The State’s argument also misses the point. “We do not require plaintiffs to show the State has committed a substantive violation of § 30(A)’s access provision when they can show that the State did not comply with § 30(A)’s procedural components.” California Pharmacists II , slip op. at 3357. Therefore, whether there were to remain an excess of available IHSS providers in county registries after the decrease in wages and benefits has little bearing on the State’s procedural compliance with § 30(A). See Independent Living II, 572 F.3d at 657 (discussing this court’s “process-oriented view” of § 30(A)).

B. Consideration of Costs

[6] The State next argues that Orthopaedic is inapposite to this case because Orthopaedic instructs the State to consider

3380

DOMINGUEZ v. S CHWARZENEGGER

the costs to service providers when its sets reimbursement rates, 103 F.3d at 1496, but providers of IHSS services do not have “costs” that can be reimbursed. Rather, sixty percent of providers are spouses, parents, or other relatives of the beneficiaries, and approximately fifty percent live with the recipients they serve. The State contends that it would thus be “virtually impossible” for it to obtain “cost studies” with respect to IHSS services, and so Orthopaedic, which holds that states should consider costs, should not apply.

We rejected a similar argument in Independent Living II . There, the Director argued that there was “no established mechanism for obtaining cost data from physicians on the costs they incur for providing each of these [covered] services.” 572 F.3d at 652 (brackets in original) (internal quotation marks omitted). Having determined that § 30(A) clearly applied to the State’s decision to cut providers’ reimbursement rates, we rejected the Director’s argument, and held that “[i]n the absence of such cost data, the Director could not have complied with § 30(A).” Id. The same holds true here. Since we have determined that the State should have studied the impact of its decreased contribution to providers’ wages and benefits prior to passing § 12306.1(d)(6), the State is not ipso facto immunized from challenges to its actions because it had no system in place to make such an assessment.

Furthermore, there does not seem to be anything inherently difficult about studying IHSS providers’ “costs” since there is undoubtedly a way to measure what it costs providers to care for IHSS recipients. The State argues that it cannot study costs because IHSS providers are providing “only their time and labor” and are not paid “rates for specific services, but rather receive hourly wages and benefits for the work they perform.” We disagree. The hourly wage paid to an IHSS provider is the rate to which they are entitled for providing specific services. See Cal. Welf. & Inst. Code § 14132.95(j)(1) (“[R]eimbursement rates for personal care services shall be equal to the rates in each county for the same mode of ser-

DOMINGUEZ v. S CHWARZENEGGER

3381

vices in the [IHSS] program. ” (emphases added)). Indeed, those services are expressly enumerated in the governing statute. See id. § 12300(b).

[7] In addition, while the State “need not follow a rigid formula,” Orthopaedic, 103 F.3d at 1498, for determining what it costs providers to care for IHSS recipients, they must rely on something. The State offers nothing to support its assertion that it would be “nonsensical and virtually impossible” to comply with Orthopaedic’s requirements in the IHSS context. To the contrary, the State concedes that the July 2008 Report to the Legislature, Public Authorities and Nonprofit Consortia in the Delivery of In-Home Supportive Services, SFY 2006/2007 (the July 2008 Report) contains extensive data regarding quality and access in the IHSS system, including: the number of providers available to work on provider registries for each county; data on service shortages and the availability of emergency back-up providers; data on PA/NPC rates and IHSS provider wages and benefits by county; data from provider and consumer satisfaction surveys and PA/NPC surveys; as well as what it costs PAs and NPCs to deliver services. In fact, the State argues that the July 2008 Report satisfies § 30(A)’s requirements—a contention to which we turn below. Yet, the State cannot have it both ways: either it is able to comply with § 30(A), or it is not.

At the very least, the State may look to what it costs providers of analogous services, such as in-home nursing care, as a means of considering providers’ costs. Indeed, in determining the “cap for increases in payment rates for individual practitioner services,” the Department is similarly authorized to look to the market rate for “like work in each county.” Cal. Welf. Inst. Code § 14132.95(j)(2)(C)(i).

[8] Accordingly, we hold that the district court did not err in holding that § 30(A) applies to the State’s enactment of § 12306.1(d)(6).

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DOMINGUEZ v. S CHWARZENEGGER

C. State Compliance with § 30(A)

Next, the State argues that while it was under no obligation

to do so, it complied with everything that

Orthopaedic

requires by preparing the 2008 Report. The district court did

not consider this report because it believed that the State con-

ceded that the legislature did not consider § 30(A) prior to

enacting § 12306.1(d)(6).

[9] We agree that, at oral argument before the district court, the State conceded that the legislature did not consider any analysis of the § 30(A) factors prior to enacting § 12306.1(d)(6). Not only did the State fail to raise this claim before the district court, thus waiving the issue, see United States v. Flores-Montano , 424 F.3d 1044, 1047 (9th Cir. 2005) (issues not raised to the district court are normally deemed waived subject to three “narrow exceptions”), it took the position that any consideration of § 30(A) would be impossible.

[10] In any event, the 2008 Report is inadequate for purposes of § 30(A). Nowhere does the 2008 Report contain any references to § 12306.1(d)(6), let alone “study the impact of the contemplated rate change(s) on the statutory factors prior to setting rates, or in a manner that allows those studies to have a meaningful impact on rates before they are finalized. ” California Pharmacists II , slip op. at 3360-61. Rather, the 2008 Report is the annual report that DSS is statutorily required to provide the legislature, regarding the efficacy of counties’ elections to establish a PA or contract with an NPC to deliver services. See Cal. Welf. & Inst. Code § 12301.6(o). While the annual report includes assessments of the quality of care being provided in the IHSS program, it contains no discussion of a contemplated rate change that would either increase or decrease payment rates. Finally, in the report on which the State relies, forty-three percent of PA/NPCs reported a “critical shortage of available providers that affected a specific subpopulation of IHSS consumers. ” That

DOMINGUEZ v. S CHWARZENEGGER

3383

conclusion belies the State’s assertion that current wages and benefits—those in effect prior to passage of § 12306.1(d)(6) —are consistent with § 30(A)’s statutory factors.

II. Irreparable Harm

The State next argues that the district court erred in concluding that Plaintiffs established irreparable harm absent injunctive relief. In holding that Plaintiffs made a sufficient showing of irreparable harm, the district court made two factual findings, which we review for clear error. Earth Island Inst., 442 F.3d at 1156. First, the district court held that wage reductions would cause IHSS providers to leave employment, leaving IHSS recipients without IHSS assistance. Second, the district court concluded that IHSS providers would also suffer immediate and irreparable harm, due to the fact that a reduction in providers’ wages and benefits would result in financial injury that providers would be unable to recover due to the State’s Eleventh Amendment immunity.

[11] On appeal, the State’s primary argument is that Plaintiffs failed to submit any credible evidence that a reduction in the State’s contribution, resulting in a decrease in wages to IHSS providers, would cause IHSS recipients to go without care. However, the State takes no position on whether Plaintiffs may establish irreparable injury to IHSS providers as opposed to IHSS recipients. As we stated in California Pharmacists II, to show a likelihood of irreparable injury, “plaintiffs need only show harm to Medi-Cal service providers or their members.” Slip op. at 3358; see also California Pharmacists I, 563 F.3d at 850. Here, Plaintiffs have submitted ample evidence of harm to IHSS providers, including that fourteen counties have sought to reduce wages and benefits in the wake of § 12306.1(d)(6), which would impact many providers’ ability to afford such basic necessities as food, clothing, utilities, and rent. Accordingly, we hold that the district court did not abuse its discretion in concluding that Plaintiffs estab-

3384

DOMINGUEZ v. S CHWARZENEGGER

lished irreparable harm absent injunctive relief, as its finding regarding provider harm was not clearly erroneous.

III. Balance of Equities and the Public Interest

[12] As to the final two elements necessary to obtain a preliminary injunction in a case in which the public interest is involved, we have repeatedly recognized that individuals’ interests in sufficient access to health care trump the State’s interest in balancing its budget. See Independent Living II , 572 F.3d at 659; California Pharmacists II, slip op. at 3360. (recognizing the important public interest in social welfare cases of safeguarding access to health care for Medicaideligible individuals). We continue to do so here, especially in light of evidence in the record that suggests that reductions in providers’ wages and benefits may have an adverse, rather than beneficial, effect on the State’s budget, such that it would actually save the State money if it maintained its current level of funding of the IHSS program. See California Pharmacists I, 563 F.3d at 852 (balance of equities and public interest weighed in favor of Medi-Cal providers where the impact of the injunction on the State’s budget crisis would be minimal).

[13] The State argues that if this injunction is upheld, “it will be unclear whether the State may ever undertake any action to reduce its payments ” to Medi-Cal service providers. This statement wholly misreads our Medicaid jurisprudence. If the State makes a policy decision to decrease providers’ reimbursement rates, and fully complies with the requirements of this and our other decisions, it will not be barred by current federal Medicaid law from doing so. Accordingly, we hold that the district court did not abuse its discretion in concluding that the balance of hardships and the public interest weighed in favor of enjoining implementation of California Welfare & Institutions Code § 12306.1(d)(6).

CONCLUSION

The district court properly determined that § 30(A) of the Medicaid Act applies to the State’s enactment of California

DOMINGUEZ v. S CHWARZENEGGER

3385

Welfare & Institutions Code § 12306.1(d)(6). The district court correctly held that Plaintiffs demonstrated a likelihood of success on the merits of their Supremacy Clause claim, and did not abuse its discretion in holding that the balance of hardships tips sharply in Plaintiffs’ favor. Accordingly, we affirm the district court’s order granting the motion for a preliminary injunction.

AFFIRMED.

 
 Case4:09-cv-02306-CW Document266 Filed03/19/10 Page1 of 9

1 Michael G. Woods, # 58683 Timothy J. Buchanan, # 100409
2 McCORMICK, BARSTOW, SHEPPARD, WAYTE & CARRUTH LLP
3 P.O. Box 28912 5 River Park Place East
4 Fresno, CA 93720-1501 Telephone: (559) 433-1300
5 Facsimile: (559) 433-2300

(SPACE BELOW FOR FILING STAMP ONLY)

6 Attorneys for Defendants COUNTY OF FRESNO and FRESNO COUNTY IN-
7 HOME SUPPORTIVE SERVICES PUBLIC AUTHORITY
8 UNITED STATES DISTRICT COURT
9 NORTHERN DISTRICT OF CALIFORNIA
10 SAN FRANCISCO/OAKLAND DIVISION
11

12 SIA CHUE YANG, et al.
13 Plaintiffs,
14 v.
15 ARNOLD SCHWARZENEGGER,
16 Governor of the State of California; JOHN A. WAGNER, Director of the California
17 Department of Social Services; DAVID MAXWELL-JOLLY, Director of the
18 California Department of Health Care Services; JOHN CHIANG, California State
19 Controller; FRESNO COUNTY; and FRESNO COUNTY IN-HOME
20 SUPPORTIVE SERVICES PUBLIC AUTHORITY,
21 Defendants.
22

Case No. C 09-02306 CW
STIPULATION FOR PROTECTIVE ORDER RELATING TO CONFIDENTIAL RECORDS PRODUCED BY PARTIES AND ORDER THEREON

23 PLAINTIFFS SIA CHUE YANG, e t al., (“Plaintiffs”), through thei r attorney of record herein,
24 Stacey Leyton of Altshuler Berzon LLP, De fendants ARNOLD SCHWARZENEGGER, JOHN
25 A. WAGNER, DAVID MAXWELL-JOLLY and JOHN CHIANG (“State Defendants”) through
26 their attorney of record, Susan M. C arson of the California Of fice of the Attorney General, an d
27 Defendants COUNTY OF FRES NO and F RESNO COUNTY IN-HOME SUPPORTIVE
28
1
STIPULATION FOR PROTECTIVE ORDER

Case4:09-cv-02306-CW Document266 Filed03/19/10 Page2 of 9

1 SERVICES PUBLIC AUTHORITY ("County Defenda nts"), through its at torney of record

2 herein, Michael G. W oods of McCorm ick, Barstow, Sheppard, W ayte & Carruth LLP hereby

3 enter into the following Stipulation for Protective Order Relating to Confidential Records:

4

1. This Stipulation and Order governs th e handling of confidential docum ents,

5 depositions and deposition exhibi ts, interrogatory answ ers, responses to requests to produce,

6 responses to requests to adm it, and other wr itten, recorded or graphic m atter (“discovery

7 material”) produced or obtained from any part y (“the producing party”) during the proceedings

8 in this action.

9

2. Any party producing “discovery m aterial” in this action which contains or

10 discloses tax returns, trade secrets, unpublishe d financial data, m edical records and other

11 documents subject to federal and state constitutional and statutory rights to privacy, including but

12 not limited to, the Health Insurance Portability and Accountability Act (HIPAA), California Civil

13 Code sections 1798 et s eq. and Welfare and Institutions Code sections 4514, 5328 and 10850,

14 and documents or other inform ation of a non-public nature consider ed by a party to be private,

15 commercially sensitive and/or proprietary, m ay designate such discovery material as

16 “Confidential,” which shall be so designated by appropriate notic e to the parties or by marking

17 the documents as such. In the ev ent that any such m aterial previously produced in discovery in

18 this action is so designated by a party after this stipulation is signed, the party shall prom ptly

19 notify the other parties of such designation in writing, specifying the materials so designated.

20

3. The producing party m ay, on the record of a deposition or by written notice to

21 counsel for all parties no later than 72 hours after rece ipt of a deposition tr anscript, designate

22 portions thereof as “Confidential” under the term s of this Stipulation and Order. During the 72-

23 hour period, all transcripts and the inform ation contained therein will be deem ed to be

24 “Confidential” in their entirety under the terms of this Stipulation and Order. In the event that no

25 designation of “Confidentia lity” is m ade within the 72 -hour period, th is Stipulation and Order

26 shall not apply to the deposition transcript. Only those portions of a tran script of a deposition

27 marked “Confidential” s hall be so treated, except that all copies of deposition transcripts that

28 2
STIPULATION FOR PROTECTIVE ORDER

Case4:09-cv-02306-CW Document266 Filed03/19/10 Page3 of 9

1 contain confidential matter shall be prominently marked “Confidential” on the cover thereof and,

2 if and when filed with the clerk, shall be filed under seal

3

4. Challenging confidentiality designations:

4

a. Unless a prom pt challenge to a producing party’s confidentiality

5 designation is necessary to avoid foreseeable substantial unfairness, unnecessary econom ic

6 burdens, or a later significant disruption or delay of the litigation, a party does not waive its right

7 to challenge a confidentiality designation by electing not to mount a challenge promptly after the

8 original designation is disclosed.

9

b. The challenging party shall initiate the dispu te resolution process b y

10 providing written notice of each designation it is challenging and describing the bas is for each

11 challenge. To avoid ambiguity as to whether a challenge has been made, the written notice must

12 recite that the challenge to confidentiality is being made according to this specific paragraph of

13 the Protective Order. T he parties shall attempt to resolve each challenge in good faith and m ust

14 begin the process by conferring direc tly within fourteen days of the date of service of notice. In

15 conferring, the challeng ing party m ust explain th e basis for its b elief that th e confidentiality

16 designation was not proper and m ust give the pr oducing party an opportunity to review the

17 designated material, to reconsider the circum stances, and, if no change in designation is offered,

18 to explain the basis for the chosen designation. A challenging party m ay proceed to the next

19 stage of the challenge process onl y if it has engaged in this m eet and confer p rocess first o r

20 establishes that the producing party is unwilling to participate in the meet and confer process in a

21 timely manner.

22

c. A party tha t elects to p ress a ch allenge to a c onfidentiality designation

23 may file and serve a m otion under Civil Local Rule 7 that identifies the challenged material and

24 sets forth in detail the basis for the challenge. Each such motion m ust be accom panied by a

25 competent declaration that affirm s that the m ovant has com plied with the meet and confer

26 requirements imposed in the preceding paragra ph and that se ts forth with spe cificity the

27 justification for the confidentiality designation that was given by the producing party in the m eet

28 and confer dialogue. The burden of persuasion in any such challenge proceeding shall be on the 3
STIPULATION FOR PROTECTIVE ORDER

Case4:09-cv-02306-CW Document266 Filed03/19/10 Page4 of 9

1 producing party. Until the court rules on the challe nge, the discovery m aterial in question will

2 remain “confidential” and be afforde d the leve l of protection to whic h it is entitled under the

3 producing party’s designation.

4

5. “Confidential” discovery m aterial shall be used only for th e prosecution and/or

5 defense of this action, and under no circumstances other than thos e specifically provided for in

6 this or subsequent court orders shall be disclosed to persons other than the following:

7

a. Outside or inside counsel that have appeared in this action or are actively

8 engaged in the preparation of this action, and re gular and temporary employees of such counsel

9 assisting in the conduct of this action, including employees of any firm retained to reproduce the

10 discovery material for use in accordance with this Stipulation and Order;

11

b. Experts or consultants assisting counsel in this litigation;

12

c. Parties or employees of any party to this action who are re quired to assist

13 counsel in the conduct of this action;

14

d. Directors, officers, and e mployees of parties who are noticed for

15 depositions or designated as trial witnesses and their counsel, or who are identified on the face of

16 the “Confidential” dis covery material as an au thor, addressee, subject or recipient of th e

17 discovery material;

18

e. Deponents, and their co unsel, during the cours e of depositions taken in

19 this action, but only for purposes relating to this litigation;

20

f. The court and its personnel;

21

g. Other persons only upon order of the court, or upon written stipulation of

22 and signed by the party that produced the Confidential discovery material.

23

6. Confidential discovery material may be disclosed pursuant to paragraphs 5b, 5c,

24 5d, 5e and 5g upon the condition that said material shall be used by any such person only for the

25 purposes of this action and for no other purpose, and shall not be used by him/her in any business

26 affairs of his/her em ployer or in his/her own affairs or be im parted by him /her to any other

27 person or entity or agency for any reason. Before dis closure is made to any such person, such

28 person shall sign the “Agreement to Be Bound by Protective Order,” attached as Exhibit A. 4
STIPULATION FOR PROTECTIVE ORDER

Case4:09-cv-02306-CW Document266 Filed03/19/10 Page5 of 9

1

7. If a party is served with a subpoena or an order issued in other litigation that

2 would compel disclosure of any information or items designated in this action as Confidential,

3 that party must promptly notify the producing party in writing. Such notification m ust include a

4 copy of the subpoena or court order. The party must also promptly notify in writing the party

5 who caused the subpoena or order to issue in the ot her litigation that some or all of the m aterial

6 covered by the subpoena or order is the subject of this Protective Order. Such notification shall

7 include a copy of this P rotective Order. The purpose of im posing these duties is to a lert the

8 interested parties to the existe nce of this P rotective Order and to afford the producing party in

9 this case an opportunity to try to protect its confidentiality intere sts in the court from which the

10 subpoena or order issued. The producing party shall bear the burdens and the expenses of

11 seeking protection in that court of its confid ential material, and nothing in these provisions

12 should be construed as authorizi ng or encouraging a receiving party in this action to disobey a

13 lawful directive from another court.

14

8. If a receiv ing party learns that, by inadve rtence or otherw ise, it has d isclosed

15 protective material to any pers on or in any circum stance not au thorized under this Protective

16 Order, the receiving party m ust immediately (a) notify th e producing party in writing of the

17 unauthorized disclosures, (b) use its best efforts to retrieve all copies of the protected m aterial,

18 (c) inform the person or persons to whom unauthorized disclosures were made of all the terms of

19 this Protective Order, and (d) request such pe rson or persons to execute the “Acknowledgment

20 and Agreement to Be Bound,” attached as Exhibit A.

21

9. Whenever any Confidential discovery m aterial is introduced, or elicited at a

22 deposition, pretrial hearing or ot her pretrial proceeding, such por tions of the proceedings which

23 concern the Confidential discovery m aterial shall be conducted so that only those persons

24 authorized hereunder to have acce ss to such m atter shall be pres ent. Prior to introducing or

25 eliciting Confidential discovery material at the trial of this action, the party seeking to introduce

26 or elicit the Confidential discovery material obtained from the other party shall notify the court

27 and the counsel of the other party of its intent to introduce or elicit such matter, specifying with

28 particularity such m atter, and the co urt shall determine whether the po rtions of the tria l which 5
STIPULATION FOR PROTECTIVE ORDER

Case4:09-cv-02306-CW Document266 Filed03/19/10 Page6 of 9

1 concern the m atter so specified sh all be conducted so that only thos e persons authorized

2 hereunder to have access to such matter shall be present.

3

10. Without written perm ission from the pr oducing party or a court ord er secured

4 after appropriate notice to all inte rested persons, a party m ay not file in the public re cord in this

5 action any protected m aterial. A party that seeks to file under se al any protected m aterial must

6 comply with Civil Local Rule 79-5.

7

11. Entering into, agreeing to and/or produc ing or receiving m aterials or otherwise

8 complying with the terms of this Stipulation and Order shall not:

9

a. Operate as an adm ission by any party that any particular discovery

10 material contains or reflects trade secrets, proprietary or commercial information or othe r

11 confidential matter; or,

12

b. Prejudice in any way the rights of any party to object to the production of

13 documents it considers not subject to discovery; or,

14

c. Prejudice in any way the rights of a party to seek a court determination:

15

(i) Whether particular discovery materials should be produced; or,

16

(ii) If produced, whether such materials should be confidential; or,

17

d. Prejudice in any way the rights of a party to apply to the court for a further

18 protective order relating to any confidential information.

19

12. This Stipulation has no effect upon, and its scope shall not extend to, any party’s

20 use of its own confidential information.

21

13. Upon conclusion of this litigation, all “Confidential” discovery materials supplied

22 by the parties and all copies thereof shall be returned to the producing party or shall be

23 destroyed, at the electio n of the producing party. W hether the Confidential material is returned

24 or destroyed, the receiving party must submit a written certification to the producin g party that

25 identifies all the Conf idential material that was returned or destroyed a nd that af firms that the

26 receiving party has not retained any copies , compilations, summaries or other for ms of

27 reproducing or capturing any of the Confiden tial material. Notwithstanding this provision,

28 counsel are entitled to retain an archival copy of all pleadings; motion papers; trial, deposition, 6
STIPULATION FOR PROTECTIVE ORDER

Case4:09-cv-02306-CW Document266 Filed03/19/10 Page7 of 9

1 and hearing transcripts; legal m emoranda; correspondence; deposition and tr ial exhibits; expert

2 reports; attorney work product and expert work product, even if such m aterials contain

3 Confidential material. Any such ar chival copies that contain or c onstitute Confidential material

4 remain subject to this Protective Order.

5

STIPULATED AND AGREED TO:

6 Dated: March ___, 2010
7
8

McCORMICK, BARSTOW, SHEPPARD, WAYTE & CARRUTH LLP

9 10 11 12 13 Dated: March ___, 2010 14

By: Michael G. Woods Timothy J. Buchanan
Attorneys for Defendant COUNTY OF FRESNO and FRESNO COUNTY IN-HOME SUPPORTIVE SERVICES PUBLIC AUTHORITY
ALTSHULER BERZON LLP

15 16 17 18 19 20 Dated: March ___, 2010

By: Stephen P. Berzon Scott A. Kronland Stacey M. Leyton Peder J. Thoreen Anne N. Arkush
Attorneys for Plaintiffs
OFFICE OF THE ATTORNEY GENERAL

21

22

By:

23

Susan M. Carson Attorneys for State Defendants

24

25

26

27

28 7
STIPULATION FOR PROTECTIVE ORDER

Case4:09-cv-02306-CW Document266 Filed03/19/10 Page8 of 9

1

2

ORDER

3

The Court, having read the above Stipulation entered by a nd between Plaintiffs, State

4 Defendants and County Defendants, and good cause appearing therefore,

5

IT IS HEREBY ORDERED as above stipulated.

6

7 Date: 3/19/2010 8 9

________________________________
The Honorable Claudia Wilken Judge of the District Court

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 8
STIPULATION FOR PROTECTIVE ORDER

Case4:09-cv-02306-CW Document266 Filed03/19/10 Page9 of 9

1

EXHIBIT A

2

ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

3 I, _____________________________ [name], of _____________________________________
4 [address], declare under penalty of perjury that I have read in its entirety and understand the
5
6 Stipulated Protective Order that was issued by the United States District Court for the Northern

7 District of California in the case of Yang v. Schwarzenegger, Case No. C 09-2306 (CW). I agree

8 to comply with and to be bound by all the terms of this Stipulated Protective Order and I

9 understand and acknowledge that failure to so comply could expose me to sanctions and
10 punishment in the nature of contempt. I solemnly promise that I will not disclose in any manner 11
any information or item that is subject to this Stipulated Protective Order to any person or entity 12
except in strict compliance with the provisions of this Order. I further agree to submit to the 13 14 jurisdiction of the United States District Court for the Northern District of California for the
15 purpose of enforcing the terms of this Stipulated Protective Order, even if such enforcement

16 proceedings occur after termination of this action. I hereby appoint

17 __________________________ [name] of _______________________________________
18 [address and telephone number] as my California agent for service of process in connection with 19
this action or any proceedings related to enforcement of this Stipulated Protective Order. 20
Date: _________________________________ 21 22 City and State: _________________________________
23 Printed name: ______________________________

24 Signature: __________________________________

25

26

27

28 9
STIPULATION FOR PROTECTIVE ORDER

 
 Case4:09-cv-02306-CW Document269 Filed04/02/10 Page1 of 17

1 STEPHEN P. BERZON (SBN 46540)

SCOTT A. KRONLAND (SBN 171693)

2 STACEY M. LEYTON (SBN 203827)

PEDER J. THOREEN (SBN 217081)

3 ANNE N. ARKUSH (SBN 254985)

EMILY B. WHITE (SBN 254294)

4 Altshuler Berzon LLP

177 Post Street, Suite 300

5 San Francisco, California 94108

Telephone: (415) 421-7151

6 Facsimile: (415) 362-8064

sberzon@altshulerberzon.com

7 skronland@altshulerberzon.com

sleyton@altshulerberzon.com

8 pthoreen@altshulerberzon.com

aarkush@altshulerberzon.com

9 ewhite@altshulerberzon.com

Attorneys for Plaintiffs

10

UNITED STATES DISTRICT COURT

11

FOR THE NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO/OAKLAND DIVISION

12

SIA CHUE YANG, PATSY MILLER, LYDIA ) Case No. C 09-02306 CW

13 DOMINGUEZ, ALEX BROWN, by and through )

his mother and next friend Lisa Brown, DONNA )

14 BROWN, CHLOE LIPTON, by and through her ) CLASS ACTION

conservator and next friend Julie Weissman-

)

15 Steinbaugh, HERBERT M. MEYER, LESLIE ) PLAINTIFFS’ NOTICE OF MOTION

GORDON, CHARLENE AYERS, WILLIE

) AND MOTION TO COMPEL

16 BEATRICE SHEPPARD, and ANDY

) PRODUCTION OF DOCUMENTS;

MARTINEZ, on behalf of themselves and a class ) MEMORANDUM OF POINTS AND

17 of those similarly situated; SERVICE

) AUTHORITIES IN SUPPORT

EMPLOYEES INTERNATIONAL UNION

)

18 UNITED HEALTHCARE WORKERS WEST; ) Date: To Be Set

SERVICE EMPLOYEES INTERNATIONAL ) Time: To Be Set

19 UNION UNITED LONG-TERM CARE

) Location: To Be Set

WORKERS; SERVICE EMPLOYEES

)

20 INTERNATIONAL UNION LOCAL 521; and )

SERVICE EMPLOYEES INTERNATIONAL )

21 UNION CALIFORNIA STATE COUNCIL,

)

)

22

Plaintiffs,

)

)

23

v.

)

)

24 ARNOLD SCHWARZENEGGER, Governor of )

the State of California; JOHN A. WAGNER, )

25 Director of the California Department of Social )

Services; DAVID MAXWELL-JOLLY, Director )

26 of the California Department of Health Care

)

Services; JOHN CHIANG, California State

)

27 Controller; FRESNO COUNTY; and FRESNO )

COUNTY IN-HOME SUPPORTIVE SERVICES )

28 PUBLIC AUTHORITY,

)

)

Defendants.

)

)

Case4:09-cv-02306-CW Document269 Filed04/02/10 Page2 of 17

1

TABLE OF CONTENTS

2

TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

3

NOTICE OF MOTION AND MOTION TO COMPEL PRODUCTION OF DOCUMENTS. . . . . . . . . . 1

4

MEMORANDUM OF POINTS AND AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

5

BACKGROUND. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

6

A. Factual History.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

7

B. Procedural History. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

8

C. The Present Discovery Dispute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

9

ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

10

A. The Documents Sought Are Highly Relevant... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

11

B. State Defendants Have Failed to Demonstrate That Any of the Documents

12

Sought Are Privileged... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

13

C. State Defendants’ Remaining Objections Are Meritless.. . . . . . . . . . . . . . . . . . . . . . . . . 11

14

D. Plaintiffs Are Entitled To Their Reasonable Expenses... . . . . . . . . . . . . . . . . . . . . . . . . . 12

15 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

16

17

18

19

20

21

22

23

24

25

26

27

28

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Case4:09-cv-02306-CW Document269 Filed04/02/10 Page3 of 17

1

TABLE OF AUTHORITIES

2

FEDERAL CASES

3 Dominguez v. Schwarzenegger,

___ WL ___, 2010 WL 715396 (9th Cir. Mar. 3, 2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 6

4

Federal Trade Commission v. Warner Communications Inc.,

5

742 F.2d 1156 (9th Cir. 1984). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

6 Independent Living Ctr. of S. Cal., Inc. v. Maxwell-Jolly,

572 F.3d 644 (9th Cir. 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

7

Kaufman v. Board of Trustees,

8

168 F.R.D. 278 (C.D. Cal. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

9 In re McKesson Governmental Entities Average Wholesale Price Litigation,

___ F.R.D. ___, 2009 WL 3706898 (N.D. Cal. Nov. 4, 2009).. . . . . . . . . . . . . . . . . . . . . . . . . . 11

10

Olmstead v. L.C. ex rel. Zimring,

11

527 U.S. 581 (1999).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9

12 Orthopaedic Hospital v. Belshe,

103 F.3d 1491 (9th Cir. 1997). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

13

Sanchez v. Johnson,

14

2001 WL 1870308 (N.D. Cal. Nov. 19, 2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

15 Trevino v. ACB American, Inc., 232 F.R.D. 612 (N.D. Cal. 2006).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
16 FEDERAL STATUTES AND RULES
17 ARRA, Pub.L. No. 111-5, 123 Stat. 115. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
18 42 U.S.C. §1396a(a)(30). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
19 42 U.S.C. §1396d.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
20 Fed. R. Civ. P. 26.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 10
21 Fed. R. Civ. P. 37.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 12
22 STATE STATUTES
23 Cal. Welf. & Inst. Code §12300.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 3
24 Cal. Welf. & Inst. Code §12300.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
25 Cal. Welf. & Inst. Code §12301.6. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
26 Cal. Welf. & Inst. Code §12306.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
27 Cal. Welf. & Inst. Code §12306.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
28

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Case4:09-cv-02306-CW Document269 Filed04/02/10 Page4 of 17

1

MISCELLANEOUS

2 8B Charles Alan Wright, et al., Federal Practice & Procedure §2288.. . . . . . . . . . . . . . . . . . . . . . . . . . 12

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

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Case4:09-cv-02306-CW Document269 Filed04/02/10 Page5 of 17

1

NOTICE OF MOTION AND MOTION TO COMPEL PRODUCTION OF DOCUMENTS

2

Please take notice that at a date, time, and location to be set by the Court, Plaintiffs will and

3 hereby do move to compel State Defendants to produce certain documents that they have refused to

4 produce in response to a valid discovery request. Specifically, Plaintiffs seek the production of all

5 documents memorializing or relating to communications between State Defendants and officials of the

6 federal government, or internal communications between State Defendants or any of their officers,

7 employees, or agents, discussing, analyzing, reflecting, or otherwise relating to California Welfare and

8 Institutions Code Section 12306.1(d)(6). State Defendants have wrongfully withheld such documents

9 and have also refused to produce logs that would enable Plaintiffs and the Court to assess State

10 Defendants’ asserted privileges. Counsel for Plaintiffs and State Defendants have met and conferred in

11 writing and telephonically and been unable to resolve this issue.

12

This Motion is made pursuant to Rule 37 of the Federal Rules of Civil Procedure. This Motion

13 is based on this Notice of Motion and Motion, the accompanying Memorandum of Points and

14 Authorities, the declaration of Peder J. Thoreen in support thereof, any oral argument that may be heard,

15 the complete files and record of this action, and such other and further matters as the Court may properly

16 consider.

17

Dated: April 2, 2010

Respectfully submitted,

18

STEPHEN P. BERZON

SCOTT A. KRONLAND

19

STACEY M. LEYTON

PEDER J. THOREEN

20

ANNE N. ARKUSH

EMILY B. WHITE

21

22

By: /s/ Peder J. Thoreen

Peder J. Thoreen

23

Attorneys for Plaintiffs

24

25

26

27

28

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Case4:09-cv-02306-CW Document269 Filed04/02/10 Page6 of 17

1

MEMORANDUM OF POINTS AND AUTHORITIES

2

Plaintiffs, In-Home Supportive Services (“IHSS”) consumers and unions representing IHSS

3 providers, brought this suit to challenge the reduction of rates paid to IHSS providers on the ground that

4 the reduction violates federal law. By the present motion, Plaintiffs seek the production of critical

5 documents that Defendants Arnold Schwarzenegger, John A. Wagner, David Maxwell-Jolly, and John

6 Chiang (“State Defendants”), have wrongfully refused to produce in discovery. These documents sought

7 reflect internal State communications, and communications between the State and the federal

8 government, related to the state statute which enacted the cuts at issue in this case, California Welfare

9 and Institutions Code §12306.1(d)(6) (“Section 12306.1(d)(6)”), including communications related to

10 the federal American Recovery and Reinvestment Act (“ARRA”).

11

On March 3, 2010, the Ninth Circuit affirmed the preliminary injunction in this case that

12 enjoined the implementation of Section 12306.1(d)(6). In that opinion, the Ninth Circuit relied

13 expressly upon the very type of documents sought by Plaintiffs by this motion. And yet State

14 Defendants have continued to withhold these documents, inexplicably claiming that they are “not

15 relevant to any issue in this lawsuit.” As indicated by the Ninth Circuit’s decision and detailed below,

16 the importance of these documents could not be clearer, and State Defendants’ objections – primarily

17 based on the documents’ alleged irrelevance – fail. Because State Defendants’ position is without

18 substantial justification, Plaintiffs also seek reimbursement of expenses, including reasonable attorneys’

19 fees, incurred in bringing this motion.

20

BACKGROUND

21 A. Factual History

22

California established the IHSS program to provide assistance with the tasks of daily living to

23 low-income elderly and/or disabled persons “who cannot safely remain in their homes or abodes of their

24 own choosing unless these services are provided.” Cal. Welf. & Inst. Code §12300(a). The types of

25 services provided through the program include assistance with bathing, dressing, cooking, feeding,

26 bowel and bladder care, self-administration of medication, and cleaning. Id. §§12300(b), (c). The

27 program also authorizes, under some circumstances, protective supervision for mentally impaired

28

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Case4:09-cv-02306-CW Document269 Filed04/02/10 Page7 of 17

1 individuals and educational and paramedical services such as the administration of medication and

2 injections. Id. §§12300(b), 12300.1.

3

Because the vast majority of IHSS consumers receive services as part of California’s Medicaid

4 program (“Medi-Cal”), the federal government pays a certain percentage of these costs, known as the

5 Federal Medical Assistance Percentage or “FMAP.” See 42 U.S.C. §1396d(b). That amount is generally

6 50% of providers’ wages and benefits, but in 2009, Congress passed the ARRA (commonly known as

7 the Stimulus Act), which increased the federal share to approximately 62%. ARRA, Pub. L. No. 111-5,

8 §5001(b)-(c), 123 Stat. 115. Of the remaining cost, often referred to as the “non-federal share,” counties

9 pay 35 percent and the state pays 65 percent of wages up to the current statutory cap of $12.10 per hour,

10 above which the State will not share the costs. Cal. Welf. & Inst. Code §§12306, 12306.1(c)-(d).

11

The IHSS program is administered by counties, which may establish public authorities to provide

12 for the delivery of IHSS services. Cal. Welf. & Inst. Code §12301.6(a). These public authorities are

13 considered employers of IHSS providers for some purposes, including bargaining about providers’

14 wages and benefits. Id. §12301.6(c)(1). As a result, the rates paid to IHSS providers vary by county.

15

In early 2009, the California Legislature held the Third Extraordinary Legislative Session to

16 adopt emergency budget measures. As part of this session, the Legislature enacted Senate Bill No. 6

17 (“SBX3 6”), §9, which amended Cal. Welf. & Inst. Code §12306.1(d) to add the following provision

18 (Section 12306.1(d)(6)):

19

(6) Notwithstanding [other provisions of Section 12306.1], the state shall participate as

provided in subdivision (c) in a total cost of wages up to nine dollars and fifty cents

20

($9.50) per hour and in individual health benefits up to sixty cents ($0.60) per hour.

21 Section 12306.1(d)(6) thus reduces the maximum IHSS provider rate in which the State will participate

22 from $12.10 per hour to $10.10 per hour ($9.50 in wages; $0.60 in benefits). The provision was to

23 become effective July 1, 2009.

24 B. Procedural History

25

On June 4, 2009, Plaintiffs filed this action, alleging that the proposed reduction in providers’

26 wages would violate the federal Medicaid Act, the Americans with Disabilities Act, and the

27 Rehabilitation Act. Plaintiffs’ Medicaid Act claims are based on a provision of that Act which requires

28 that the State ensure that payments for care “are consistent with . . . quality of care and are sufficient to

3

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Case4:09-cv-02306-CW Document269 Filed04/02/10 Page8 of 17

1 enlist enough providers so that care and services are available under the plan at least to the extent that

2 such care and services are available to the general population in the geographic area.” 42 U.S.C.

3 §1396a(a)(30)(A) (“Section 30(A)”). Plaintiffs allege that Section 12306.1(d)(6) will reduce payments

4 to IHSS providers in a manner inconsistent with this mandate, and that, as interpreted by the Ninth

5 Circuit in cases such as Independent Living Ctr. of S. Cal., Inc. v. Maxwell-Jolly, 572 F.3d 644 (9th Cir.

6 2009), and Orthopaedic Hosp. v. Belshe, 103 F.3d 1491 (9th Cir. 1997), Section 30(A) required State

7 Defendants to analyze the impact of Section 12306.1(d)(6) on the factors set forth in Section 30(A) prior

8 to the enactment of the statute.

9

One of State Defendants’ primary defenses to this claim is their contention that Section

10 12306.1(d)(6) does not set payment rates at all. Instead, they have argued, Section 12306.1(d)(6) merely

11 lowers the cap on wages and benefits to which the State will contribute, but that those wages and 12 benefits are set by the counties, not the State.1 Plaintiffs have responded that Section 12306.1(d)(6)

13 undoubtedly influences the wages set by counties, effectively lowering those wages. Plaintiffs have

14 further relied upon the fact that the State, which is charged with complying with the Medicaid Act,

15 reviews and gives final approval to all provider wage rates proposed by counties.

16

In this regard, Plaintiffs have relied on the fact that the passage of Section 12306.1(d)(6)

17 invalidated the then-current rates for all counties paying over $9.50 per hour and the State required those

18 counties to submit new rate requests in response to the new statute. The invalidation of current rates 19 above $9.50 was done specifically to comply with the ARRA.2 To support this argument, Plaintiffs have

20

21

1 State Defendants have made this argument numerous times, including: Dkt. #95 at 3:19 - 4:3,

12:4-5 (“The State has no influence in determining what the wages and benefits will be in each

22 county.”), 12:16-17 (“The state does not determine what the wages and benefits will be.”), 12:21-23

(“the wages and benefits paid to IHSS workers are established through the collective bargaining process

23 in which the state has no involvement”); Dkt. #163 at 2:5-6 (“As State defendants have repeatedly

explained, the State does not set the wages and benefits for IHSS providers, the counties do.”); 9th Cir. 24 Dkt. #31 (“§ 12306.1(d)(6) does not set any reimbursement rates”), 10 (“the statute [§12306.1(d)(6)]

does not require counties to reduce wages and benefits paid to IHSS providers”); 18 (“§ 12306.1(d)(6) 25 does not set any reimbursement rates”).

26

2 A condition of receiving billions of dollars in Medicaid funds through the ARRA was that the

27 State not require counties to increase their percentage of the non-federal share of existing rates. See ARRA §5001(g)(2). If Section 12306.1(d)(6) had not had the effect of rescinding approval of rates

28 above $9.50, it would have violated this requirement by forcing certain counties to maintain their prior rates and bear a greater percentage of providers’ wages.

4

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Case4:09-cv-02306-CW Document269 Filed04/02/10 Page9 of 17

1 cited certain communications between the State Defendants and the federal government regarding the

2 interaction of the ARRA and Section 12306.1(d)(6). See Dkt. #19 ¶¶2-6 & Exhs. A-E.3 In those

3 communications, the State admitted that Section 12306.1(d)(6) had the effect of invalidating the present

4 wage rates: “[T]he State’s conditional approvals of the [public authority (“PA”)] rates are no longer

5 effective and each of the counties in question will need to request the State’s approval of another PA

6 rate.” Dkt. #19, Exh. A at 5.

7

On June 26, 2009, the Court granted Plaintiffs’ motion for a preliminary injunction and enjoined

8 the implementation of §12306.1(b)(6), concluding that Plaintiffs had demonstrated a likelihood of

9 success on their claim that Section 12306.1(d)(6) violates Section 30(A). Dkt. #130, 131. State

10 Defendants appealed the preliminary injunction, and it was affirmed by the Ninth Circuit on March 3,

11 2010. Dominguez v. Schwarzenegger, ___ WL ___, 2010 WL 715396 (9th Cir. Mar. 3, 2010).

12

Both this Court and the Ninth Circuit rejected State Defendants’ contention that Section

13 12306.1(d)(6) does not effectively set rates. Dkt. #131 at 10; 2010 WL 715396, at *4-*5. In its

14 published opinion affirming the preliminary injunction, the Ninth Circuit expressly relied on

15 communications between the State and the federal government relating to the interaction between the

16 ARRA and Section 12306.1(d)(6):

17

[T]he [California Department of Health Care Services] has recognized the direct link

between the State’s change in contribution rate and the resulting change in reimbursement

18

rates. In April 2009, the Department sent the United States Department of Health and

Human Services (HHS) an analysis of § 12306.1(d)(6), providing its arguments as to why

19

§ 12306.1(d)(6) did not violate newly enacted requirements of ARRA. That analysis

explained the reduction in the State’s contribution under § 12306.1(d)(6), including that

20

“funding has been reduced so that the maximum wage participation level will be $10.10

per hour starting July 1, 2009. As a result, the State’s conditional approvals of the PA

21

rates are no longer effective and each of the counties in question will need to request the

State’s approval of another PA rate. . . . If in connection with that a county then chooses

22

to negotiate different wages in excess of the $10.10 maximum wage participation level, it

will be doing so voluntarily and not because of any State requirements.” Thus, the State

23

explicitly invalidated its prior approval of PA rates, previously negotiated via collective

bargaining, as a result of § 12306.1(d)(6).

24

25

26

3 The Union Plaintiffs or their affiliates were involved in some of these discussions, which is

27 how they obtained the limited communications they presented to the Court. Plaintiffs do not seek the production of documents that they possess and have already filed with the Court. But there are

28 obviously many communications as to which the Union Plaintiffs were not a party. Otherwise, State Defendants would have nothing to withhold.

5

Plaintiffs’ Motion to Compel Production of Documents; Memorandum of Points and Authorities in Support, Case No. C09-02306 CW

Case4:09-cv-02306-CW Document269 Filed04/02/10 Page10 of 17

1 2010 WL 715396, at *5.4 Elsewhere, the Ninth Circuit also cited a May 1, 2009, “All-County

2 Information Notice” issued by the Department of Social Services, which instructed that, in light of

3 Section 12306.1(d)(6), “Counties currently providing wages and individual health benefits above $10.10

4 must submit a PA Rate Change Request to reflect the change in the maximum amount in which the state

5 will participate.” 2010 WL 715396, at *2, n.3.

6 C. The Present Discovery Dispute

7

On December 22, 2009, Plaintiffs served State Defendants with their first set of requests for

8 production of documents. Thoreen Decl., Exh. A. State Defendants responded to those requests on

9 February 26, 2010. Id., Exh. B. The present motion relates to only one of the requests. That request,

10 and State Defendants’ response, are as follows:

11

REQUEST NO. 3:

12

All documents memorializing or relating to communications between State

13

Defendants and officials of the federal government, or internal communications between

State Defendants or any of their officers, employees, or agents, discussing, analyzing,

14

reflecting, or otherwise relating to §12306.1(d)(6).

15

RESPONSE TO REQUEST 3:

16

State defendants object to this request on the grounds that it is overbroad, vague,

ambiguous, burdensome and compound. The request also seeks documents that are

17

confidential and subject to the attorney/client privilege, attorney work-product doctrine,

and deliberative process privilege. Moreover, this request is not calculated to lead to the

18

discovery of admissible evidence and requests documents that are not relevant to any

issue in this lawsuit. Therefore, State defendants will not produce any documents in

19

response to this request.

20 Id. at 5. On March 9, 2010, Plaintiffs sent State Defendants a letter outlining a number of deficiencies in
21 State Defendants’ objections to Request No. 3, including pointing out that, in affirming the preliminary
22

23

4 The Ninth Circuit also cited the following exchange between the State and the federal

government regarding the ARRA and Section 12306.1(d)(6): 24

Notably, in concluding that § 12306.1(d)(6) did not render the State ineligible for

25

increased funding under ARRA, HHS advised the State that if the Department were to

approve provider wage rates at a level less than that recommended by the county, “the

26

State would need to assure that the lack of funding from local sources will not result in

27

lowering the amount, duration, scope or quality of care and services available under the

plan.”

28 2010 WL 715396, at *6.
6

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Case4:09-cv-02306-CW Document269 Filed04/02/10 Page11 of 17

1 injunction in this case, the Ninth Circuit specifically relied on documents responsive to this request

2 related to the ARRA. Thoreen Decl., Exh. C at 3. On March 19, State Defendants responded as

3 follows:

4

State defendants stand by their objections to this overly broad request. However,

to the extent that plaintiffs have narrowed the request to “communications [that] discuss

5

the impact of section 12306.1(d)(6) on access and quality of IHSS services” that may be

“relevant to plaintiffs’ substantive Medicaid claim and Olmstead claims,” State

6

defendants do not have any such documents.[] To the extent that this request also seeks

documents related to communications regarding the impact of the American Recovery

7

and Reinvestment Act (ARRA), such communications are not only privileged, but also

not relevant to any issue in this lawsuit. State defendants will not undertake the unduly

8

burdensome task of searching for documents that may be related to ARRA and section

12306.1(d)(6). Moreover, to the extent that these communications also included your

9

client, SEIU, plaintiffs have equal access to the documents. Indeed, plaintiffs submitted

many of these documents to the district court in support of their motion for preliminary

10

injunction. Finally, your citation to the Ninth Circuit’s decision regarding the appeal of

the preliminary injunction, does not support your position here. The Ninth Circuit’s only

11

reference to ARRA concerns the increased percentage of federal funding available under

the Act. For all these reasons, plaintiffs [sic] will not produce any documents in response

12

to this request.

13 Thoreen Decl., Exh. D at 1-2.

14

In a separate portion of that letter addressing State Defendants’ assertion of privileges, they

15 stated: “we have determined that the attorney/client privilege would only apply to documents that would

16 be responsive to Request No. 3 and the communications between the State and federal government

17 officials regarding whether the State would lose ARRA funding as a result of the enactment of section

18 12306.1(d)(6).” Id. at 2. But State Defendants refused to produce a privilege log as to those documents,

19 on the ground that they are allegedly “totally unrelated to any issue in this lawsuit.” Id. Defendants

20 further noted that their asserted “deliberative process privilege” only potentially applies “to Request No.

21 3 and those communications related to ARRA as described above.” Id. at 3. Again, State Defendants

22 refused to produce a privilege log or otherwise comply with the requirements for asserting the

23 deliberative process privilege. Id.

24

Plaintiffs and State Defendants held a telephonic meet and confer on March 24, 2010, during

25 which Plaintiffs’ counsel stated that the present motion would be necessary if State Defendants

26 continued to refuse to at least produce responsive documents related to Section 12306.1(d)(6) and the

27 ARRA. Thoreen Decl. ¶6. The parties have been unable to resolve their differences through this meet

28 and confer process. Id.

7

Plaintiffs’ Motion to Compel Production of Documents; Memorandum of Points and Authorities in Support, Case No. C09-02306 CW

Case4:09-cv-02306-CW Document269 Filed04/02/10 Page12 of 17

1

ARGUMENT

2

By this motion, Plaintiffs seek an order compelling State Defendants to produce documents

3 responsive to Request No. 3. Plaintiffs are entitled to these documents because they are relevant to

4 Plaintiffs’ claims, or – at the very least – “reasonably calculated to lead to the discovery of admissible

5 evidence.” Fed. R. Civ. P. 26(b)(1); see Kaufman v. Board of Trustees, 168 F.R.D. 278, 280 (C.D. Cal.

6 1996) (“Rule 26(b) is liberally interpreted to permit wide-ranging discovery . . . . The burden of proof is

7 on the party opposing discovery to claim lack of relevancy and privilege.”). Plaintiffs are also entitled to

8 their expenses incurred in bringing this motion, including the reasonable attorneys’ fees, because State

9 Defendants’ refusal to produce the documents in question was not “substantially justified.” See Fed. R.

10 Civ. P. 37(a)(5).

11 A. The Documents Sought Are Highly Relevant.

12

State Defendants’ internal communications, and communications with the federal government,

13 regarding Section 12306.1(d)(6) – the entire reason this case was brought – are highly relevant to this

14 litigation, and Request No. 3 is at least reasonably calculated to lead to the discovery of admissible

15 evidence.

16

The documents sought are particularly relevant to whether Section 12306.1(d)(6) would have the

17 effect of reducing rates paid to IHSS providers. As described above, the Ninth Circuit relied heavily on

18 documents that would be responsive to this request, namely, communications between the State and the

19 federal government regarding the interaction of Section 12306.1(d)(6) and the ARRA, in concluding that

20 Section 12306.1(d)(6) would reduce rates. State Defendants’ bald assertion that responsive documents

21 related to Section 12306.1(d)(6) and the ARRA are “not relevant to any issue in this lawsuit” flies in the 22 face of the Ninth Circuit’s reasoning.5

23

24

5 In addition, as noted above, the ARRA significantly increased the percentage of IHSS

providers’ wages paid by the federal government. This fact is relevant to Plaintiffs’ claims under the 25 Americans with Disabilities Act and the Rehabilitation Act. Those acts, as interpreted by the Supreme

Court in Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581 (1999), prohibit the “[u]njustified isolation” of 26 disabled persons. Id. at 597. Plaintiffs have alleged that the reduction in wages caused by Section

27 12306.1(d)(6) will result in a shortage of IHSS providers which, in turn, will force many IHSS recipients into institutions in violation of Olmstead. However, the Supreme Court held in Olmstead that

28 The State’s responsibility, once it provides community-based treatment to qualified
8

Plaintiffs’ Motion to Compel Production of Documents; Memorandum of Points and Authorities in Support, Case No. C09-02306 CW

Case4:09-cv-02306-CW Document269 Filed04/02/10 Page13 of 17

1

Similarly, the May 1 All-County Information Notice cited by the Ninth Circuit demonstrates that

2 Section 12306.1(d)(6) invalidated existing rates, further disproving State Defendants’ assertion that

3 counties bear the sole responsibility for provider rates. The existence of this notice suggests that the

4 State Defendants had internal communications regarding the impact of Section 12306.1(d)(6) on rates.

5 Those communications would be responsive to Request No. 3 and, like the notice itself, are relevant to

6 State Defendants’ contention that Section 12306.1(d)(6) did not affect rates.

7

For all of these reasons, State Defendants’ internal communications and communications with

8 the federal government regarding Section 12306.1(d)(6) are highly relevant to this litigation, and

9 Plaintiffs are therefore entitled to the documents sought.

10 B. 11

State Defendants Have Failed to Demonstrate That Any of the Documents Sought Are Privileged.

12

State Defendants have asserted attorney/client, attorney work product, and deliberative process

13 privileges with respect to the documents at issue.6 But they have refused to produce privilege logs on the

14 (false) ground that the documents are not relevant and that creating a log would therefore impose an

15 undue burden. See Thoreen Decl., Exh. D at 2-3.

16

17

18 persons with disabilities, is not boundless. The reasonable-modifications regulation

19

speaks of “reasonable modifications” to avoid discrimination, and allows States to resist

modifications that entail a “fundamenta[l] alter[ation]” of the States’ services and

20

programs.

21 527 U.S. at 603. This “fundamental alteration” defense allows a state to avoid liability if “in the allocation of available resources, immediate relief for the plaintiffs would be inequitable, given the
22 responsibility the State has undertaken for the care and treatment of a large and diverse population of
persons with . . . disabilities.” Id. at 604. Although not determinative, the amount of financial resources 23 available to the State is relevant to this affirmative defense. State Defendants’ communications related
to the ARRA and Section 12306.1(d)(6) are at least reasonably calculated to lead the discovery of 24 admissible evidence regarding the impact of the ARRA (and its increased FMAP) on the resources
available to the State to fund the IHSS program and competing programs. Although State Defendants 25 stated in their March 19 letter that they have no responsive document related to Plaintiffs’ Olmstead
26 claims, it is unclear whether this was intended to include responsive documents demonstrating the ARRA’s impact on a fundamental alteration defense.

27

6 State Defendants further object on the ground that the responsive documents are “confidential,”

28 but, without more, that is not a valid objection. In any event, the Court has entered a protective order, which should address any confidentiality concerns.

9

Plaintiffs’ Motion to Compel Production of Documents; Memorandum of Points and Authorities in Support, Case No. C09-02306 CW

Case4:09-cv-02306-CW Document269 Filed04/02/10 Page14 of 17

1

As described above, the documents at issue are relevant to this litigation. To the extent that any

2 such documents are allegedly privileged, State Defendants must produce a log with sufficient specificity

3 “to enable [Plaintiffs] to assess the claim” of privilege. Fed. R. Civ. P. 26(b)(5)(A)(ii). State

4 Defendants are wrong in contending, in their March 19 letter, that their general descriptions of the types

5 of documents that are allegedly privileged “more than compl[y] with Rule 26.” See Trevino v. ACB

6 American, Inc., 232 F.R.D. 612, 618 (N.D. Cal. 2006) (party withholding allegedly privileged documents

7 “must produce a privilege log detailing all such documents” (emphasis in original)); see also Fed. R.

8 Civ. P. 26, 1993 adv. comm. notes. State Defendants’ description of the allegedly-privilege documents

9 is as follows:

10

[T]he communications plaintiffs seek were between and among attorneys representing

various State departments, including defendants Department of Health Care Services and

11

the Department of Social Services, concerning SEIU’s position regarding the availability

of ARRA funding and the enactment of section12306.1(d)(6). These communications

12

also concern the State’s attorneys’ impressions and analysis of SEIU’s communications

with federal officials.

13

Thoreen Decl., Exh. D at 3. State Defendants also describe as privileged “communications between the

14

State and federal governments regarding whether the State would lose ARRA funding.” Id. at 2. These

15

general descriptions do not provide sufficient specificity to permit Plaintiffs to assess the asserted

16

privilege.

17

For example, Plaintiffs have a right to know the names of the individuals sending and receiving

18

the communications to determine whether they privilege has been waived. State Defendant’s own letter

19

indicates that the privilege is likely waived as to at least some of the allegedly privileged

20

communications. As noted, they include within the description of privileged documents

21

“communications between the State and federal government officials regarding whether the State would

22

lose ARRA funding.” But those documents, admittedly shared with non-clients (i.e., federal government

23

officials), are no longer protected by any privilege.

24

Further, as Plaintiffs advised State Defendants in their March 9 letter, State Defendants have

25

entirely failed to comply with the requirements for asserting the deliberative process privilege. That

26

privilege applies only to documents that are both “predecisional” and “deliberative”; it generally does

27

not apply to purely factual material; and it yields where a litigant’s need for the deliberative materials or

28

10

Plaintiffs’ Motion to Compel Production of Documents; Memorandum of Points and Authorities in Support, Case No. C09-02306 CW

Case4:09-cv-02306-CW Document269 Filed04/02/10 Page15 of 17

1 the need for accurate fact-finding outweigh the government’s interest in non-disclosure. Federal Trade

2 Comm’n v. Warner Communications Inc., 742 F.2d 1156, 1161 (9th Cir. 1984); In re McKesson

3 Governmental Entities Average Wholesale Price Litig., ___ F.R.D. ___, 2009 WL 3706898, at *5-*6

4 (N.D. Cal. Nov. 4, 2009); Sanchez v. Johnson, 2001 WL 1870308, at *4-*6 (N.D. Cal. Nov. 19, 2001).

5 “The burden of articulating the basis for the assertion of the deliberative process privilege is with the

6 party asserting the privilege.” In re McKesson, 2009 WL 3706898, at *7. And “the privilege must be

7 strictly confined within the narrowest possible limits consistent with the logic of its principles.”

8 Sanchez, 2001 WL 1870308, at *6 (quotation marks and citation).

9

In accordance with these principles, in order to invoke the privilege State Defendants must

10 provide a declaration from the head of each relevant agency (or someone of similar status) who must

11 have personally reviewed the documents for which the privilege is asserted and who must declare, with

12 respect to each such document:

13

1) specific facts demonstrating why each document is “deliberative” and “predecisional”;

2) specific facts concerning: a) the degree and type of harm that would result from

14

requiring production of each document; and b) what type of protective order would be

necessary to reduce that harm or, alternatively, why a protective order would not reduce

15

this harm; and 3) what portions of each document are deliberative and, if specific sections

are purely factual, why those sections cannot be produced.

16

17 In re McKesson, 2009 WL 3706898, at *6-*7. State Defendants cannot avoid this obligation based on

18 their erroneous claim that the documents in question are not relevant.

19 C. State Defendants’ Remaining Objections Are Meritless.

20

State Defendants’ remaining, boilerplate objections are meritless. The request is not vague,

21 ambiguous, or compound. It simply seeks State Defendants’ internal communications and

22 communications with the federal government regarding Section 12306.1(d)(6). Because all responsive

23 documents must relate to this specific statute, they should be easily identifiable. Nor is the request

24 overbroad. For the reasons described above, any or all of the communications sought may be directly

25 relevant to Plaintiffs claims and, at the very least, are reasonably calculated to lead to the discovery of

26 admissible evidence.

27

Finally, the request is not unduly burdensome. Section 12306.1(d)(6) was enacted in early 2009.

28 Therefore, the time frame at issue is reasonably limited. Further, State Defendants have presented no

11

Plaintiffs’ Motion to Compel Production of Documents; Memorandum of Points and Authorities in Support, Case No. C09-02306 CW

Case4:09-cv-02306-CW Document269 Filed04/02/10 Page16 of 17

1 basis upon which to believe that the amount of responsive material is extraordinarily voluminous. Given

2 the limited nature of the subject matter, it is highly unlikely that retrieving responsive documents will be

3 unduly burdensome.

4 D. Plaintiffs Are Entitled To Their Reasonable Expenses.

5

When a motion to compel discovery is granted, the Court “must . . . require the party . . . whose

6 conduct necessitated the motion . . . to pay the movant’s reasonable expenses incurred in making the

7 motion, including attorneys’ fees.” Fed. R. Civ. P. 37(a)(5)(A); see Fed. R. Civ. P. 37, 1970 adv. comm.

8 notes (“expenses should ordinarily be awarded”).

9

Neither of the only potentially applicable exceptions to an award of expenses – either that the

10 opposing parties’ nondisclosure was “substantially justified” or that other circumstances exists that

11 would “make an award of expenses unjust” (Fed. R. Civ. P. 37(a)(5)(A)(ii) & (iii)) – apply here. It can

12 hardly be said that State Defendants were substantially justified in asserting that the responsive

13 documents are “not relevant to any issue in this lawsuit” when the Ninth Circuit relied on precisely the

14 same type of documents when affirming the preliminary injunction. Nor are there any circumstances

15 that would make an award of expenses unjust. To the contrary, an award of expenses will further the

16 purpose of Fed. R. Civ. P. 37(a)(5)(A) by deterring abuses in the discovery process requiring Court

17 involvement. See Fed. R. Civ. P. 37, 1970 adv. comm. notes; 8B Charles Alan Wright, et al., Federal

18 Practice & Procedure §2288 (3d ed. 2010).

19

Plaintiffs’ expenses through March 31, 2010, totaling $5,827.00, are detailed and supported in

20 the accompanying declaration of Peder Thoreen at ¶¶7-11 & Exh. E. Plaintiffs will supplement their

21 expenses upon the filing of their reply brief.

22 ///

23 ///

24

25

26

27

28

12

Plaintiffs’ Motion to Compel Production of Documents; Memorandum of Points and Authorities in Support, Case No. C09-02306 CW

Case4:09-cv-02306-CW Document269 Filed04/02/10 Page17 of 17

1

CONCLUSION

2

For all of these reasons, the Court should grant Plaintiffs’ motion to compel and award Plaintiffs

3 their reasonable expenses incurred in bringing this motion.

4

Dated: April 2, 2010

Respectfully submitted,

5

STEPHEN P. BERZON

SCOTT A. KRONLAND

6

STACEY M. LEYTON

PEDER J. THOREEN

7

ANNE N. ARKUSH

EMILY B. WHITE

8

9

By: /s/ Peder J. Thoreen

10

Peder J. Thoreen

Attorneys for Plaintiffs

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

13

Plaintiffs’ Motion to Compel Production of Documents; Memorandum of Points and Authorities in Support, Case No. C09-02306 CW

 
 Case4:09-cv-02306-CW Document272 Filed04/05/10 Page1 of 1

United States District Court For the Northern District of California

1

2

3

4 IN THE UNITED STATES DISTRICT COURT
5

6

FOR THE NORTHERN DISTRICT OF CALIFORNIA

7

8 SIA CHUF YANG, et al.,

9

Plaintiffs,

10

v.

11 ARNOLD SCHWARZENEGGER, et al.

12

Defendants.

/

13

No. C 09-02306 CW
ORDER OF REFERENCE TO MAGISTRATE JUDGE

14

15

Pursuant to Local Rule 72-1, IT IS HEREBY ORDERED that

16 Plaintiff’s Motion to Compel Production of Documents and all

17 further discovery motions filed in the above-captioned case are

18 referred to a Magistrate Judge. Counsel will be advised of the

19 date, time and place of appearance by notice from the assigned

20 Magistrate Judge.

21 22 Dated: 4/5/2010 23

CLAUDIA WILKEN United States District Judge

24 25 cc: Wings; Assigned M/J w/mo.

26

27

28

 
 Case4:09-cv-02306-CW Document275 Filed04/21/10 Page1 of 9

1 EDMUND G. BROWN JR. Attorney General of California
2 SUSAN M. CARSON Supervising Deputy Attorney General
3 State Bar No. 135875 JENNIFER A. BUNSHOFT
4 Deputy Attorney General State Bar No. 197306
5 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102-7004
6 Telephone: (415) 703-5580 Fax: (415) 703-5480
7 E-mail: susan.carson@doj.ca.gov Attorneys for Defendants
8

9

IN THE UNITED STATES DISTRICT COURT

10

FOR THE NORTHERN DISTRICT OF CALIFORNIA

11

12

LYDIA DOMINGUEZ, PATSY MILLER, CV 09-2306 CW (JL) 13 ALEX BROWN, by and through his mother

and next friend Lisa Brown, DONNA 14 BROWN, CHLOE LIPTON, by and

STATE DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MOTION TO

through her conservator and next friend

COMPEL

15 Julie Weissman-Steinbaugh, HERBERT M.

MEYER, LESLIE GORDON, CHARLENE Date: 16 AYERS, WILLIE BEATRICE SHEPPARD, Time:

May 12, 2010 9:30 a.m.

and ANDY MARTINEZ, on behalf of 17 themselves and a class of those similarly

Courtroom: F, 15th Floor, Federal Building, San Francisco

situated; SERVICE EMPLOYEES 18 INTERNATIONAL UNION UNITED

Trial Date March 21, 2011

HEALTHCARE WORKERS WEST; 19 SERVICE EMPLOYEES

Action Filed: May 26, 2009

INTERNATIONAL UNION UNITED 20 LONG-TERM CARE WORKERS;

SERVICE EMPLOYEES 21 INTERNATIONAL UNION LOCAL 521;

and SERVICE EMPLOYEES 22 INTERNATIONAL UNION CALIFORNIA

STATE COUNCIL, 23

Plaintiffs, 24

v. 25

26 ARNOLD SCHWARZENEGGER, Governor of the State of California, et al.,
27 Defendants.
28
1 STATE DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MOTION TO COMPEL (CV 09-2306 CW)

Case4:09-cv-02306-CW Document275 Filed04/21/10 Page2 of 9

1

INTRODUCTION

2

Plaintiffs’ motion, that seeks to compel State defendants to produce confidential, privileged

3 communications unrelated to any issue in this case, is baseless. Plaintiffs’ attempts to justify their

4 sweeping request to produce internal communications among State defendants and other

5 administration attorneys and officials should be rejected. They are merely attempting to obtain

6 communications between and among State officials regarding an issue that is unrelated to any

7 claim or defense asserted in this case, but that relate to an issue raised by plaintiff SEIU with the

8 federal agency charged with administering the Medicaid program regarding the American

9 Recovery and Reinstatement Act (ARRA). Plaintiffs should not be permitted to delve into the

10 internal deliberations about whether Welfare and Institutions Code section 12306.1(d)(6) would

11 potentially violate a provision of ARRA such that the State of California would be denied billions

12 of dollars in stimulus funds. ARRA is not at issue here, and to the extent that this issue was at all

13 relevant to the Medicaid Act cause of action, that issue was resolved by the Ninth Circuit in its

14 opinion, affirming the district court’s preliminary injunction of section 12306.1(d)(6). Plaintiffs’

15 attempt to tie the ARRA issue to the ADA claim and a defense to that claim that State defendants

16 have not raised, should also be rejected. The bottom line here is that none of the documents

17 plaintiffs seek are relevant and they are all unquestionably privileged. Plaintiffs’ motion to

18 compel should be denied.

19

RELEVANT FACTS

20

A. Factual Background

21

State defendants generally agree with plaintiffs’ description of the In-Home Supportive

22 Services (IHSS) program and the enactment of Welfare and Institutions Code section

23 12306.1(d)(6). Plaintiffs acknowledge that the union plaintiffs were involved in discussions with

24 the federal government and State defendants regarding whether section 12306.1(d)(6) would

25 violate section 5001(g)(2) of the American Recovery and Reinstatement Act. Plaintiffs’ Motion

26 at 4 n. 2; 5 n. 3. In fact, plaintiff SEIU initially raised the issue with the Centers for Medicare and

27 Medicaid Services (CMS), the federal agency charged with administering the Medicaid program.

28 Declaration of Toby Douglas ¶ 5.
2

STATE DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MOTION TO COMPEL (CV 09-2306 CW)

Case4:09-cv-02306-CW Document275 Filed04/21/10 Page3 of 9

1

In order to respond from inquiries from CMS and issues raised by SEIU, over 50 senior

2 legal and program staff from the Governor’s Office, the Department of Finance, the California

3 Health and Human Services Agency as well as State defendants, Department of Health Care

4 Services (DHCS) and the Department of Social Services (DSS) met and deliberated over a two-

5 month period. Douglas Decl. ¶ 5. The memoranda outlining the State’s position on the potential

6 impact of section 12306.1(d)(6) on receipt of federal funds under ARRA were set forth in two

7 memoranda, both of which were provided to SEIU. See Declaration of Carol Golubock in

8 Support of Plaintiffs’ Motion for Preliminary Injunction ¶ 2, 4, Exhs. A, C, respectively.

9 Ultimately, CMS, the federal agency charged with administering the Medicaid program,

10 determined that section 12306.1(d)(6) would not cause the State to be in violation of section

11 5001(g)(2) of ARRA. See Golubock Decl. ¶ 6, Exh. D.

12

B. Procedural History

13

While plaintiffs give a fairly accurate description with regard to the proceedings in the

14 district court and Ninth Circuit with regard to their motion for preliminary injunction, what

15 plaintiffs do not state is that the issue regarding what the State must do in order to comply with

16 section 1396a(a)(30)(A) of the Medicaid Act has been resolved. Despite State defendants’

17 arguments that the State does not set the level of wages and benefits paid to IHSS providers such

18 that it should be required to comply with the Ninth Circuit’s decisions in Orthopaedic Hosp. v.

19 Belshe and California Pharmacists II, the Ninth Circuit has concluded otherwise.

20

The Ninth Circuit recently held “that before enacting Legislation that has the effect of

21 lowering payments to providers – here, § 12306.1(d)(6) – the State must study the impact of that

22 decision on the statutory factors section in § 30(A). Dominguez v. Schwarzenegger, 596 F.3d

23 1065, *12 (9th Cir. 2010), citing California Pharmacists II, 2010 U.S. App. LEXIS 4530, at *13.

24 The Ninth Circuit specifically rejected State defendants’ argument that because the State does not

25 set the level of wages and benefits paid to IHSS providers, it was not required to conduct a study

26 prior to enactment of section 12306.1(d)(6). “We are not persuaded by the State’s attempt to

27 distinguish its rate of reimbursement to providers from its contribution to the amount counties

28 pay to providers in the IHSS context.” Id. at 13 (emphasis in original).
3 STATE DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MOTION TO COMPEL (CV 09-2306 CW)

Case4:09-cv-02306-CW Document275 Filed04/21/10 Page4 of 9

1

ARGUMENT

2 I. 3

PLAINTIFFS HAVE FAILED TO SHOW THAT THE DOCUMENTS THEY SEEK ARE RELEVANT TO ANY CLAIM OR DEFENSE AT ISSUE IN THIS LITIGATION

4

Rule 26(b)(1) of the Federal Rules of Civil Procedure provides in pertinent part: “Parties

5 may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or

6 defense . . . .” Thus, the parties and the court should “focus on the actual claims and defenses

7 involved in the action.” Advisory Committee Notes, 2000 Amendment; see also Trevino v. ACB

8 American, Inc., 232 F.R.D. 612, 615, 616 (N.D. Cal.2006) (documents not relevant to issues

9 raised in suit were not required to be produced). Although the court may permit discovery

10 relevant to the subject matter of the lawsuit, the party must establish “good cause” for the

11 requested discovery. In re: Subpoena to Michael Witzel, 531 F.3d 113, 118 (1st Cir. 2008).

12

Here, there is nothing relevant about communications State defendants may have had

13 amongst themselves or with the federal government about section 12306.1(d)(6) and the

14 American Recovery and Reinstatement Act (ARRA) to any of the claims or defenses in this

15 litigation. The Medicaid Act issues in this matter are quite straightforward: Did State defendants

16 violate section 1396a(a)(30)(a) of the Medicaid Act because they failed to conduct a study under

17 the Ninth Circuit’s decision in Orthopaedic Hospital v. Belshe, 103 F.3d 1490 (9th Cir. 1997)

18 prior to the Legislature enacting section 12306.1(d)(6)? The Ninth Circuit has determined that

19 State defendants must conduct such a study. The court specifically rejected State defendants’

20 explanations for why they did not believe that Orthopaedic applied. Thus, plaintiffs’ claim that

21 “[t]he documents are particularly relevant to whether Section 12306.1(d)(6) would have the effect

22 of reducing rates paid to IHSS providers” has been resolved by the Ninth Circuit. Plaintiffs’ 23 Motion at 8.1 Whether section 12306.1(d)(6) would have the effect of lowering wages and

24 benefits for IHSS providers no longer matters. The Ninth Circuit has found that the reduction of

25 the State’s contribution “[b]ecause section 12306.1(d)(6) directly affects what Medi-Cal providers

26 are paid for providing services, its falls within § 30(A)” and that “the State must study the impact

27 1 State defendants have filed a petition for certiorari, however, with the U.S. Supreme
28 Court.
4 STATE DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MOTION TO COMPEL (CV 09-2306 CW)

Case4:09-cv-02306-CW Document275 Filed04/21/10 Page5 of 9

1 of [the reduction] on the statutory factors set forth in § 30(A).” Dominguez, 596 F.3d at *12.

2 Thus, plaintiffs’ claim that “State Defendants’ internal communications and communications with

3 the federal government regarding Section 12306.1(d)(6) are highly relevant to this litigation” is

4 baseless.

5

Plaintiffs’ contention that these communications are relevant to the “fundamental alteration

6 defense” to the ADA claim is also meritless. Plaintiffs’ Motion at 8-9 n. 5. There are two

7 problems with this contention: (1) State defendants have not asserted a fundamental alteration

8 defense to plaintiffs’ claims under the Americans with Disabilities Act;2 and, (2) even if State

9 defendants were to argue the fundamental alteration defense, plaintiffs already have the

10 information they claim they would need, the percentage of federal funding available to the State

11 for paying for IHSS. Thus, plaintiffs have utterly failed to establish the relevance of these

12 privileged communications to any issue that remains in this lawsuit. In fact, plaintiffs did not

13 seek, or apparently need, these confidential communications while litigating the issue of whether

14 the State’s reduction of the maximum contribution for wages and benefits in the preliminary

15 injunction briefing. In other words, plaintiffs litigated this issue without the communications they

16 seek here, and it was resolved in their favor.

17

The internal, privileged communications regarding whether the State would be in violation

18 of a provision of ARRA are simply not relevant to any claim or issue in the case. The only

19 defense to which any information regarding ARRA might apply has not been asserted by

20 defendants, and if it were, the information plaintiffs would need to counter it is public information

21 -- that is the percentage of federal funding available to the State for Medicaid services provided.

22 There is simply no basis for plaintiffs’ claim that the communications sought “are at least

23 reasonably calculated to lead [to] the discovery of admissible evidence regarding the impact of

24 the ARRA (and its increased FMAP) on the resources available to the State to fund the IHSS

25

26

2 In opposition to plaintiffs’ motion for preliminary injunction, State defendants’ argued

that plaintiffs could not prove an essential element of their ADA claim, causation. Moreover, this

27 is the first time plaintiffs have asserted that they need these privileged communications to respond

to a potential fundamental alteration defense. They did not raise this is their meet and confer

28 communications with State defendants. Thoreen Decl. ¶ 4, Exh. C.

5

STATE DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MOTION TO COMPEL (CV 09-2306 CW)

Case4:09-cv-02306-CW Document275 Filed04/21/10 Page6 of 9

1 program and competing programs.” Plaintiffs’ Motion at 9. Accordingly, plaintiffs have failed to

2 show that there is “good cause” for the court to order production of privileged communications

3 between and among high-ranking State legal and program staff.

4 II. STATE DEFENDANTS HAVE PROPERLY RAISED THE ATTORNEY/CLIENT AND

5

DELIBERATIVE PROCESS PRIVILEGES IN RESPONSE TO PLAINTIFFS’ REQUEST FOR IRRELEVANT DOCUMENTS

6

In response to plaintiffs’ request for internal communications within the State

7 Administration regarding whether section 12306.1(d)(6) would violate a subsection of ARRA,

8 State defendants raised both the attorney/client and deliberative process privileges. The

9 deliberative process privilege” permits the government to withhold documents that reflect

10 advisory opinions, recommendations and deliberations comprising part of a process by which the

11 government decisions and policies are formulated.” Federal Trade Comm’n v. Warner

12 Communications, 742 F.2d 1156, 1161 (9th Cir. 1984), citing NLRB v. Sears, Roebuck & Co., 421

13 U.S. 132, 150 (1975). “It was developed to promote frank and independent discussion among

14 those responsible for making governmental decisions, . . . and also to protect against premature

15 disclosure of proposed agency policies or decisions.” Federal Trade Comm’n, 742 F.2d at 1161

16 (citations omitted). Two requirements must be met for the privilege to apply: (1) the document

17 must be predecisional; and (2) the document must be deliberative in nature, containing opinions,

18 recommendations, or advice about agency policies. Id. Although the privilege is a qualified one,

19 the party seeking the privileged documents must show that its need overrides the government’s

20 interest in nondisclosure. The factors to be considered are (1) the relevance of the documents

21 sought; (2) the availability of other evidence; (3) the government’s role in the litigation; and (4)

22 the “extent to which disclosure would hinder frank and independent discussion regarding

23 contemplated policies and decisions.” Id.

24

Here, State defendants have properly raised the deliberative process privilege in response to

25 plaintiffs’ request for “internal communications between State Defendants or any of their officers,

26 employees, or agents, discussing, analyzing, reflecting, or otherwise §12306.1(d)(6).” See

27 Response to Document Request No. 3. Plaintiffs’ Motion at 6; Douglas Decl. ¶ 6. .On the other

28 hand, plaintiffs have failed to meet a single factor that would warrant production of these internal,
6 STATE DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MOTION TO COMPEL (CV 09-2306 CW)

Case4:09-cv-02306-CW Document275 Filed04/21/10 Page7 of 9

1 confidential communications. First, as set forth above, the documents sought are not relevant to a

2 single claim or defense at issue in this litigation. Second, in the event that the State were to claim

3 the fundamental alteration defense – and it has not – plaintiffs already have the only relevant

4 piece of information they would need, the percentage of federal funding that would be available

5 to the State to offset its costs regarding the IHSS program. In addition, plaintiffs already possess

6 the memoranda that set forth the State’s position with regard to the issues raised regarding section

7 12306.1(d)(6) and ARRA, to the extent that such position might be relevant. Third, the State

8 defendants are the primary defendants in this action that concerns the enactment of a State statute.

9 Finally, if production were ordered of these internal, deliberative communications, the free flow

10 of ideas and candid exchange of opinions and advice among high-ranking program and legal staff

11 would certainly be chilled. Douglas Decl. ¶ 7. Indeed, if every time a political actor –here, SEIU

12 – could obtain the internal communications among State government official concerning an issue

13 that the actor raised with the federal officials charged with overseeing the administration of a

14 State’s program, written communication among the State staff would surely cease. State staff

15 would be unable to communicate in writing for fear that its internal deliberations could be used

16 against it in the political arena. State defendants cannot imagine a scenario more chilling than

17 this. Under all the circumstances here, plaintiffs have utterly failed to overcome the State’s need

18 to keep these deliberative, predecisional communications confidential. Thus, the deliberative

19 process privilege precludes the production of these internal communications.3

20

Under Fed. R. Evid. 501, issues with regard to the attorney/client privilege are to be

21 determined under State law. Under California law, lawyer-client communications are presumed

22 to be confidential. Cal. Evid. Code § 917; see also Cal. Evid. Code §§ 952, 954. Here, many if

23 not most of the confidential communications among State staff involved attorneys providing legal

24

25

3 Given the nature of the documents – almost exclusively emails among high-ranking

legal and program staff throughout the Administration from the Governor’s Office to the State

26 defendants, State defendants should not be required to search and retrieve every email from over

50 staff members’ computers in order to individually list each and every communication. To

27 require State defendants to undertake this onerous task given the utter irrelevance of the

communications and the severe budgetary constraints currently facing the State would constitute

28 undue burden and require undue expense.

7

STATE DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MOTION TO COMPEL (CV 09-2306 CW)

Case4:09-cv-02306-CW Document275 Filed04/21/10 Page8 of 9

1 advice. Douglas Decl. ¶ 6. State defendants properly raised the attorney/client privilege in

2 response to plaintiffs’ Request for Production No. 3. As with the deliberative process privilege,

3 the number of staff with potentially privileged communications is in the dozens. It would be

4 unduly burdensome and oppressive to require State defendants to search and retrieve hundreds of

5 emails related to the legal position the State took and the analysis the State provided to CMS and

6 SEIU with regard to the issues SEIU raised regarding section 12306.1(d)(6) and ARRA.

7 Plaintiffs already have these final documents. They have no need for all the deliberative

8 communications that occurred among State program and legal staff.

9 III. STATE DEFENDANTS SHOULD NOT BE REQUIRED TO PAY FOR PLAINTIFFS’

10

EXPENSES IN BRINGING THIS MOTION BECAUSE ITS REFUSAL TO PRODUCE THE REQUESTED DOCUMENTS IS SUBSTANTIALLY JUSTIFIED

11

A party may recover its expenses if a discovery motion is granted and the opposing party’s

12 objection was not “substantially justified.” Fed. R. Civ. Proc. Rule 37(a)(4)(A). The relevant

13 inquiry is the substantive bases for a party’s objections. Neumont v. Monroe, 225 F.R.D. 266,

14 268 (S.D. Fla. 2004) (magistrate erred when it considered the outcome of defendants’ objections,

15 not the background for their assertion).

16

Here, State defendants’ position with regard to the irrelevance and privileged nature of the

17 documents plaintiffs seek is more than substantially justified. The documents are not relevant to

18 any claim or defense in this case. In addition, they are subject to the deliberative process and

19 attorney/client privileges. If any party would be entitled to recover expenses, it would be State

20 defendants for being required to respond to this baseless motion to compel. Therefore, plaintiffs’

21 request to be reimbursed for their expenses in bringing this motion should be denied.

22 ///

23 ///

24 ///

25 ///

26 ///

27 ///

28 ///

8 STATE DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MOTION TO COMPEL (CV 09-2306 CW)

Case4:09-cv-02306-CW Document275 Filed04/21/10 Page9 of 9

1

CONCLUSION

2

Plaintiffs’ motion to compel the production of documents that are not relevant to any claim

3 or defense in this action and which are unquestionably privileged should be denied. Plaintiffs

4 have utterly failed to establish that they need any of these documents to litigate a single issue in

5 this case. And, they have failed to show that State defendants’ objections to producing these

6 confidential and privileged documents are not substantially justified. Therefore, plaintiffs’

7 motion to compel should be denied.

8 Dated: April 21, 2010

Respectfully submitted,

9 10 11 12 13
SF2009403964
14 20269286.docx

EDMUND G. BROWN JR. Attorney General of California /S/ Susan M. Carson SUSAN M. CARSON Supervising Deputy Attorney General Attorneys for Defendants

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9 STATE DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MOTION TO COMPEL (CV 09-2306 CW)

 
 Case4:09-cv-02306-CW Document371 Filed06/29/10 Page1 of 3

United States District Court For the Northern District of California

1

2

3

4

5 IN THE UNITED STATES DISTRICT COURT
6

7

FOR THE NORTHERN DISTRICT OF CALIFORNIA

8

9 LYDIA DOMINGUEZ, et al.,

10

Plaintiffs,

11

v.

12 ARNOLD SCHWARZENEGGER, et al.,

13

Defendants.

14

No. C 09-02306 CW

ORDER GRANTING

PLAINTIFFS’

APPLICATION FOR A

TEMPORARY

RESTRAINING ORDER

AND ORDER TO SHOW

CAUSE WHY

PRELIMINARY

/

INJUNCTION SHOULD

NOT ISSUE

15 IT IS HEREBY ORDERED that, pending an order by the Court as to
16 whether a preliminary injunction should issue, Defendants ARNOLD
17 SCHWARZENEGGER, Governor of the State of California; JOHN A.
18 WAGNER, Director of the California Department of Social Services;
19 DAVID MAXWELL-JOLLY, Director of the California Department of
20 Health Care Services; JOHN CHIANG, California State Controller;
21 FRESNO COUNTY; and FRESNO COUNTY IN-HOME SUPPORTIVE SERVICES PUBLIC
22 AUTHORITY; and their officers, agents, servants, employees, and
23 attorneys, and those persons in active concert or participation
24 with them, are HEREBY RESTRAINED AND PROHIBITED from implementing
25 the Fresno County rate change reducing hourly wages of IHSS
26 providers from $10.25 to $8.00 and benefits from $0.85 to $0.60,
27 and Defendants WAGNER and MAXWELL-JOLLY SHALL HEREBY RESCIND their
28

Case4:09-cv-02306-CW Document371 Filed06/29/10 Page2 of 3

United States District Court For the Northern District of California

1 approval of such rate change request. This rescission must be in

2 writing and be sent to Fresno County within one business day from

3 the date of this order. At the same time, a copy shall be

4 submitted to Plaintiffs' counsel and to the Court, along with a

5 declaration under penalty of perjury verifying that it was sent.

6

IT IS FURTHER ORDERED that all Defendants take all actions

7 necessary to ensure that no providers’ wages are reduced to the

8 $8.00 per hour wage rate and $0.60 per hour benefit contribution.

9 To the extent that Defendants have already taken action in

10 preparation for implementing the new rate, Defendants shall take

11 all steps necessary to reverse such actions. State Defendants are

12 ordered to complete updating the Case Management, Information and

13 Payrolling System ("CMIPS") within five business days from the date

14 of this order so that it reflects the $10.25 per hour wage rate for

15 IHSS providers in Fresno County. Within seven business days from

16 the date of this order, State Defendants shall serve and file a

17 declaration verifying that they have complied with this order.

18

The papers submitted by Plaintiffs in support of their

19 temporary restraining order request will be deemed to be their

20 motion for a preliminary injunction. Because the temporary

21 restraining order will remain in effect until the Court issues an

22 order as to whether a preliminary injunction should issue,

23 Defendants may file their opposition to the motion for a

24 preliminary injunction whenever they wish. However, State and

25 Fresno Defendants shall coordinate their oppositions and file them

26 on the same date. Plaintiffs shall reply within one week of the

27 filing of Defendants’ oppositions. The motion will be decided on

28 the papers unless a hearing date is set by the Court.

2

Case4:09-cv-02306-CW Document371 Filed06/29/10 Page3 of 3

United States District Court For the Northern District of California

1

A reasoned written order will follow.

2

3

IT IS SO ORDERED.

4 Dated: 06/29/10
5
6

CLAUDIA WILKEN United States District Judge

7

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 Case4:09-cv-02306-CW Document403 Filed08/31/10 Page1 of 31

1 STEPHEN P. BERZON (SBN 46540)

SCOTT A. KRONLAND (SBN 171693)

2 STACEY M. LEYTON (SBN 203827)

PEDER J. THOREEN (SBN 217081)

3 Altshuler Berzon LLP

177 Post Street, Suite 300

4 San Francisco, California 94108

Telephone: (415) 421-7151

5 Facsimile: (415) 362-8064

sberzon@altshulerberzon.com

6 skronland@altshulerberzon.com

sleyton@altshulerberzon.com

7 pthoreen@altshulerberzon.com

[Additional Counsel on Signature Page]

8

Attorneys for Plaintiffs

9

UNITED STATES DISTRICT COURT

10

FOR THE NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO/OAKLAND DIVISION

11

LYDIA DOMINGUEZ, PATSY MILLER, ALEX

) Case No. C 09-02306 CW

12 BROWN, by and through his mother and next friend )

Lisa Brown, DONNA BROWN, CHLOE LIPTON, by )

13 and through her conservator and next friend Julie

) SECOND AMENDED COMPLAINT

Weissman-Steinbaugh, HERBERT M. MEYER,

) FOR DECLARATORY AND

14 LESLIE GORDON, CHARLENE AYERS, WILLIE ) INJUNCTIVE RELIEF

BEATRICE SHEPPARD, ANDY MARTINEZ, and )

15 CAROLYN STEWART, on behalf of themselves and a )

class of those similarly situated; SERVICE

)

16 EMPLOYEES INTERNATIONAL UNION UNITED )

HEALTHCARE WORKERS WEST; SERVICE

)

17 EMPLOYEES INTERNATIONAL UNION UNITED )

LONG-TERM CARE WORKERS; SERVICE

)

18 EMPLOYEES INTERNATIONAL UNION LOCAL )

521; SERVICE EMPLOYEES INTERNATIONAL )

19 UNION CALIFORNIA STATE COUNCIL; UNITED )

DOMESTIC WORKERS OF AMERICA, AFSCME, )

20 LOCAL 3930, AFL-CIO; and CALIFORNIA UNITED )

HOMECARE WORKERS,

)

21

)

Plaintiffs,

)

22

)

v.

)

23

)

ARNOLD SCHWARZENEGGER, Governor of the )

24 State of California; JOHN A. WAGNER, Director of the )

California Department of Social Services; DAVID

)

25 MAXWELL-JOLLY, Director of the California

)

Department of Health Care Services; JOHN CHIANG, )

26 California State Controller; FRESNO COUNTY; and )

FRESNO COUNTY IN-HOME SUPPORTIVE

)

27 SERVICES PUBLIC AUTHORITY,

)

)

28

Defendants.

)

)

Second Amended Complaint; Case No. C09-02306 CW

Case4:09-cv-02306-CW Document403 Filed08/31/10 Page2 of 31

1

INTRODUCTION

2

1. This case challenges California Welfare and Institutions Code Section 12306.1(d)(6)

3 (“Section 12306.1(d)(6)”), which provides for the reduction of the wages and benefits of In-Home

4 Supportive Services (“IHSS”) providers, as well as the State’s approval and implementation of certain

5 county-proposed IHSS rate decreases.

6

2. Under Section 12306.1(d)(6), the maximum hourly wage and benefit rate that the State

7 will help fund would be reduced by two dollars per hour, effective July 1, 2009. Plaintiffs seek a

8 declaratory judgment that Section 12306.1(d)(6) is unlawful and an injunction to prevent Defendants

9 from implementing this provision. Section 12306.1(d)(6) would cause severe and irreparable harm to

10 tens of thousands of Californians, pushing already low-wage IHSS providers into poverty and forcing

11 the institutionalization of, or otherwise harming, some IHSS recipients who will be unable to obtain

12 in-home care.

13

3. The IHSS program presently provides critical assistance to hundreds of thousands of

14 low-income seniors and persons with disabilities, primarily as part of the state’s Medicaid program

15 (“Medi-Cal”). Elderly and/or disabled individuals who are unable to perform certain basic tasks of

16 daily living – for example, bathing, dressing, feeding themselves, or taking necessary medications – are

17 provided with in-home assistance that permits them to remain out of institutional care. With the help

18 of IHSS providers, these IHSS consumers are able to remain safely in their homes, at a cost to the State

19 of far less than the cost of institutional care.

20

4. IHSS providers’ wages and benefits are funded through a combination of federal, state,

21 and county funds. The State contributes a percentage of wages and benefits up to a maximum amount

22 established by state law. In enacting Section 12306.1(d)(6), the California Legislature reduced the

23 maximum amount of the wages and benefits of IHSS providers for which the State will share costs by

24 over 15%, to $9.50 per hour in wages and $.60 per hour in benefits, effective July 1, 2009. The State

25 then notified counties to submit notices of their plans to reduce wages and benefits to these levels for

26 the reduction to take effect by that date. In many counties that currently pay wages and/or benefits

27 above the newly reduced maximum amount, Section 12306.1(d)(6) would cause IHSS providers’

28 wages and benefits to drop significantly from their current levels. The consequences for many IHSS

1
Second Amended Complaint; Case No. C09-02306 CW

Case4:09-cv-02306-CW Document403 Filed08/31/10 Page3 of 31

1 consumers in these counties would be dire, because their providers would be unable or unwilling to

2 continue working at the reduced wage rate. Many consumers would be unable to hire IHSS providers

3 and would either be deprived of critical IHSS services or be forced into nursing homes.

4

5. IHSS wages and benefits are set through a process, established by state statute, that

5 involves the state legislature establishing the maximum amount of wages and benefits the State will

6 help fund, county proposals of wage and benefit amounts, and state agency approval of

7 county-proposed rates. In May 2010, Fresno County submitted a rate change request to the State,

8 seeking reduction of the IHSS hourly provider wage from $10.25 to $8.00 and the hourly provider

9 health care contribution from $0.85 to $0.60. On information and belief, in June 2010, the State

10 approved or will approve that rate reduction request with an effective date of July 1, 2010.

11

6. Plaintiffs have filed this action because Section 12306.1(d)(6) and the State’s approval

12 of material county rate decreases are preempted by the federal Medicaid Act, 42 U.S.C.

13 §1396a(a)(30)(A). Prior to enacting Section 12306.1(d)(6), the State failed to give the required

14 consideration to the impact of the statute on the efficiency, economy, and quality of care of Medi-Cal

15 services, and on access to Medi-Cal services. On information and belief, prior to approving Fresno

16 County’s rate decrease request, the State failed to give the required consideration to these factors, and,

17 absent injunctive relief, the State will continue to fail to give this required consideration prior to

18 approving other counties’ material rate decrease requests in the future.

19

7. In addition, Section 12306.1(d)(6) and the State’s approval of the Fresno County rate

20 decrease are preempted by the federal Medicaid Act, 42 U.S.C. §1396a(a)(30)(A), because the reduced

21 IHSS provider wages and benefits that would result from implementation of Section 12306.1(d)(6) and

22 the Fresno County rate decrease would produce Medi-Cal services that are not consistent with the

23 required standards of efficiency, economy, and quality of care, and would not provide sufficient access

24 to Medi-Cal services.

25

8. Finally, implementation of Section 12306.1(d)(6) and/or the Fresno County rate

26 decrease would violate the anti-discrimination provisions of the Americans with Disabilities Act

27 (“ADA”), 42 U.S.C. §12132, and Section 504 of the Rehabilitation Act, 29 U.S.C. §794(a), by forcing

28 many IHSS consumers to enter nursing homes or other institutions, despite their desire and ability to

2
Second Amended Complaint; Case No. C09-02306 CW

Case4:09-cv-02306-CW Document403 Filed08/31/10 Page4 of 31

1 remain in their homes.

2

JURISDICTION

3

9. This action arises under:

4

(a) Title XIX of the Social Security Act, 42 U.S.C. §1396a(a)(30)(A);

5

(b) The Americans with Disabilities Act, 42 U.S.C. §12132;

6

(c) The Rehabilitation Act, 29 U.S.C. §794(a);

7

(d) The Supremacy Clause, U.S. Const., Art. VI, cl. 2; and

8

(e) 42 U.S.C. §1983.

9

10. This Court has subject matter jurisdiction under 28 U.S.C. §§1331 and 1343.

10

11. This Court is empowered to issue a declaratory judgment pursuant to 28 U.S.C. §§2201

11 and 2202.

12

VENUE

13

12. Venue is proper under 28 U.S.C. §1391(b) because all Defendants reside in California

14 and at least one Defendant resides in the Northern District of California, and because a substantial part

15 of the events or omissions giving rise to the claims occurred or will occur in the Northern District of

16 California, where many Plaintiffs or their members live and work.

17

INTRADISTRICT ASSIGNMENT

18

13. Pursuant to Local Rule 3-2(c)-(d), intra-district assignment to the San Francisco or

19 Oakland Division is proper because at least one Defendant resides in San Francisco County, and

20 because a substantial part of the events or omissions giving rise to the claims occurred or will occur in

21 Alameda, Contra Costa, Marin, Mendocino, Napa, San Francisco, San Mateo and Sonoma counties.

22

PARTIES

23

14. Plaintiff Patsy Miller is a 72-year-old resident of Fresno County. Plaintiff suffers from

24 multiple disabilities, including fibromyalgia, rheumatoid arthritis, diabetic neuropathy, irritable bowel

25 syndrome, and clinical depression. Plaintiff Miller has been receiving IHSS services for about 15

26 years, but has had the same provider for more than eight years. Plaintiff Miller receives about 80 hours

27 of IHSS services per month. Plaintiff Miller requires assistance with cleaning, shopping, cooking,

28 transportation, and personal care. If her provider’s wages were cut, Plaintiff Miller knows that it would

3
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Case4:09-cv-02306-CW Document403 Filed08/31/10 Page5 of 31

1 be very difficult for her provider to continue working with her. Plaintiff Miller fears it would be hard

2 to find anyone who could replace her provider. Plaintiff Miller does not have anyone else to rely on.

3 Without her provider, Plaintiff Miller worries she may be forced into a nursing home where her quality

4 of life will be seriously diminished.

5

15. Plaintiff Lydia Dominguez is an 81-year-old resident of Alameda County. She suffers

6 from osteoporosis and has problems with her eyes and with her right arm. As a result of her condition,

7 Plaintiff Dominguez has had multiple operations and at least ten significant accidents. In addition, she

8 is mostly unable to walk and she depends heavily on a walker and assistance from others. Plaintiff

9 Dominguez is authorized to receive 24 hours of IHSS services per week pursuant to the Medi-Cal

10 program for assistance with bathing, cooking, laundry, cleaning, and paying her bills. Without this

11 assistance, Plaintiff Dominguez could not live on her own, and would be forced into a nursing home.

12 If the IHSS wages and benefits are reduced below their current level, Plaintiff Dominguez’s provider

13 will be forced to look for another job. Plaintiff Dominguez will not be able to find another provider to

14 work for less than this amount, and will be forced into a nursing home.

15

16. Plaintiff Alex Brown, a 17-year-old resident of Fresno County, appears in this action

16 through his mother and next friend, Lisa Brown. Plaintiff Alex Brown has Down Syndrome, and

17 requires protective supervision and assistance with tasks of daily living (including bathing, grooming,

18 dressing, and eating) in order to remain in his home. Plaintiff Alex Brown is not able to appear on his

19 own behalf to litigate this action because his developmental disability prevents him from understanding

20 the nature of the action or communicating about it with others. Lisa Brown, Plaintiff Alex Brown’s

21 next friend and mother, is Plaintiff Alex Brown’s sole parent and his IHSS provider. Ms. Brown

22 formerly worked as a food scientist but has been caring for her son full-time since 1998, and began

23 being paid for his care through IHSS in 2002. Ms. Brown receives $10.25 per hour for 195 hours per

24 month of care for her son through the IHSS program, and her personal savings are limited to a few

25 hundred dollars. Ms. Brown is concerned that, if Fresno County reduces its wages, she would be

26 unable to afford her monthly mortgage payment and so would lose her home. Plaintiff Alex Brown

27 does not have any other relatives who could assume responsibility for his care or take him into their

28 home. If Ms. Brown loses her home, she will be forced to live in her car because she has no alternative

4
Second Amended Complaint; Case No. C09-02306 CW

Case4:09-cv-02306-CW Document403 Filed08/31/10 Page6 of 31

1 housing. If that happens, Ms. Brown will be forced to put her son in a community care facility or

2 developmental center. Ms. Brown is concerned about that possibility because it will limit her son’s

3 freedom and contact with family members, and because there has been abuse in such facilities and her

4 son is unable to express himself if he is harmed.

5

17. Plaintiff Donna Brown, a 45-year-old resident of Solano County, has multiple sclerosis

6 and is paralyzed from the neck down. Plaintiff Brown is unable to perform basic tasks such as eating

7 or showering without assistance, and is authorized to receive 283 hours in IHSS services per month.

8 Four IHSS providers assist Plaintiff Brown with meal preparation, eating, getting out of bed, basic

9 hygiene, giving her medication, bathing, dressing, emptying her catheter, and taking her to doctor’s

10 appointments and exercises. Plaintiff Brown could not live independently without their assistance. At

11 least some of Plaintiff Brown’s IHSS providers would be unable to continue working for her if the

12 IHSS wages and benefits were reduced below their current level, and Plaintiff Brown believes it would

13 be difficult for her to find new IHSS providers at less than that wage rate. The quality of Plaintiff

14 Brown’s care would suffer, and she worries that she might be forced into a nursing home which would

15 deprive her of her current freedom, independence, and community involvement.

16

18. Plaintiff Chloe Lipton, a 37-year-old resident of Alameda County, appears in this action

17 through her conservator and next friend, Julie Weissman-Steinbaugh. Plaintiff Lipton has multiple

18 disabilities, including cerebral palsy, visual impairment, mental retardation, and anxiety disorder. She

19 requires round-the-clock assistance to live on her own, and is authorized to receive the maximum

20 number of IHSS hours per month pursuant to Medi-Cal as well as services from a state regional center

21 for individuals with developmental disabilities. Plaintiff Lipton is not able to appear on her own behalf

22 to litigate this action because her developmental disability prevents her from understanding the nature

23 of the action or communicating about it with others. Plaintiff Lipton has had trouble finding IHSS

24 providers, and if Alameda County reduces the IHSS wages and benefits, Plaintiff Lipton’s current

25 IHSS providers may leave their jobs and Plaintiff Lipton may be unable to find IHSS providers who

26 would work for her. Weissman-Steinbaugh and her husband have served as conservators of Plaintiff

27 Lipton’s person and estate since Plaintiff Lipton’s mother died in 2002, because Plaintiff Lipton’s

28 relatives were not willing to assume responsibility for her care. Both Weissman-Steinbaugh and her

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1 husband are disabled, and so cannot provide Plaintiff Lipton with the care she needs in order to remain

2 in her home. If Plaintiff Lipton is unable to find IHSS providers, she may be forced to enter a nursing

3 home, where her freedom to go out in the community will be greatly restricted. This would be

4 disastrous for Plaintiff Lipton’s quality of life.

5

19. Plaintiff Herbert M. Meyer is a 78-year-old resident of Marin County. Plaintiff Meyer is

6 quadriplegic and so requires assistance with getting in and out of bed, bathing, dressing and undressing,

7 getting into his wheelchair, preparation of his meals, bowel and bladder care, cleaning his apartment,

8 and transportation to appointments. Without this assistance, Plaintiff Meyer could not live

9 independently. Plaintiff Meyer is currently authorized to receive 272 hours of IHSS services per month

10 pursuant to Medi-Cal for assistance with these tasks. Plaintiff Meyer was cared for by the same IHSS

11 provider for more than twelve years, until she died from cancer earlier in 2009, and then temporarily by

12 his son, but is now cared for by non-relative providers. If Marin County were to reduce the wages and

13 benefits of IHSS providers below their current rate, Plaintiff Meyer does not believe that he will be

14 able to find an IHSS provider. If that happens, Plaintiff Meyer will be forced to enter a skilled nursing

15 facility, which will require him to surrender his freedom and control over his transportation, money,

16 and community activities. Plaintiff Meyer does not believe he will receive a high quality of health care

17 in a skilled nursing facility and would be devastated if he has to enter one.

18

20. Plaintiff Leslie Gordon is a resident of Alameda County and a recipient of IHSS

19 services. Plaintiff Gordon has cerebral palsy and needs a caregiver to be present between the hours of

20 11 p.m. and 8 a.m. in case she needs to get out of bed during an emergency. She is authorized to

21 receive 283 hours of IHSS services under the Medi-Cal program, and has five IHSS providers who

22 provide such overnight care. Plaintiff Gordon is concerned that, if Alameda County cuts the IHSS

23 wages and benefits, her IHSS providers will have to quit and she will be unable to find replacements

24 for her IHSS providers. If this happens, Plaintiff Gordon may be forced into a nursing home.

25

21. Plaintiff Charlene Ayers is a 64-year-old resident of Alameda County. She has been

26 legally blind since 1972, and her vision deteriorated significantly in January 2008. She has other health

27 issues such as diabetes and agoraphobia. Plaintiff Ayers has received IHSS services for over a year and

28 is authorized for 108 hours of IHSS services per month. These services include cooking, cleaning,

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1 personal care, shopping, laundry, and assistance going out into the community. Plaintiff Ayers’ IHSS

2 provider will have to look for other work if Alameda County reduces the IHSS wages and benefits

3 below the current rate, and Plaintiff Ayers does not believe that she will be able to find a suitable

4 replacement for less than the current wage of $11.50 per hour. If Plaintiff Ayers cannot find a suitable

5 IHSS provider, she will be unable to cook, clean effectively, or go out into the community the way she

6 is able to now. She will also have difficulty administering her medication.

7

22. Plaintiff Willie Beatrice Sheppard is a 81-year-old resident of Alameda County. She

8 suffers from arthritis and has had a stroke. As a result, she cannot walk very well and needs assistance

9 to go out in the community. Although she can perform light tasks around her house, she cannot do

10 anything difficult. Plaintiff Sheppard is authorized for 41.7 hours of IHSS services per month,

11 including cooking, cleaning, bathing, shopping, and mobility assistance. Plaintiff Sheppard’s IHSS

12 provider will have to look for other work if her wages fall below $11.50 per hour. If Plaintiff

13 Sheppard’s IHSS provider leaves, Plaintiff Sheppard does not believe she will be able to find someone

14 to replace her. It would be very difficult to Plaintiff Sheppard to live on her own without help, and she

15 is afraid that she would be forced to enter a nursing home. Plaintiff Sheppard used to work in a nursing

16 home, and does not believe she would receive a high quality of care if she entered one. For this reason,

17 she wants to live in her home as long as possible.

18

23. Plaintiff Andy Martinez is a 77-year-old resident of Fresno County. He suffers from

19 diabetes, and has very limited mobility due to a knee injury. As a result, he can hardly walk, and needs

20 assistance with cooking, cleaning, bathing, shopping, and personal care. Plaintiff Martinez is

21 authorized for 180 hours of IHSS services per month, which are performed by his wife. If Plaintiff

22 Martinez’s wife’s IHSS provider wages and benefits are reduced, they will not be able to make ends

23 meet. As it is, they are barely able to pay their bills. Plaintiff Martinez believes that they would have

24 to move to a cheaper apartment, but this would be extremely difficult because he can hardly move and

25 his wife would not be able to move them both. Plaintiff Martinez has been in rest homes before, and

26 believes that they do not provide a good quality of care. For this reason, he does not want to go to a

27 nursing facility.

28

24. Plaintiff Carolyn Stewart is a 65-year-old resident of Fresno County. She suffers from

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1 diabetes, high blood pressure, and heart trouble. As the result of an accident and, later, a stroke, she

2 experiences extreme pain and stiffness in her back and right side, and she cannot use her right hand

3 most of the time. Due to pain in her legs, Plaintiff Stewart uses a walker and a wheelchair. Plaintiff

4 Stewart needs assistance with all of her daily tasks, including food preparation, laundry, grocery

5 shopping, bathing, toilet assistance, and transportation to doctor’s appointments. Plaintiff Stewart is

6 authorized for approximately 109-118 hours of IHSS services per month. Plaintiff Stewart’s IHSS

7 provider will have to reduce her hours or quit if her wages are reduced to $8.00 per hour. Plaintiff

8 Stewart is worried that she will not be able to find another provider if her current IHSS provider quits;

9 she has had difficulty finding reliable IHSS providers in the past. Plaintiff Stewart believes she will

10 likely have to go into a nursing home if she is unable to find an IHSS provider. She has no family

11 members who could assist her if she were unable to find an IHSS provider.

12

25. Plaintiff Service Employees International Union United Healthcare Workers West

13 (“UHW”) is an unincorporated association whose members include approximately 55,000 IHSS

14 workers in 11 counties. Some members provide services for their minor children. Plaintiff UHW is an

15 affiliate of the Service Employees International Union (“SEIU”). UHW was established to improve the

16 wages, benefits, and working conditions of service employees, including IHSS providers, throughout

17 California. UHW has for years been an advocate for IHSS consumers and quality of care. Some of

18 UHW’s IHSS worker members currently earn wages of more than $9.50 per hour, including those in

19 Calaveras ($9.75 per hour), Contra Costa and Sonoma ($11.50 per hour), Fresno ($10.25 per hour),

20 Marin ($11.55 per hour), Sacramento ($10.40 per hour), and Yolo ($10.50 per hour) counties. In

21 addition, some of UHW’s IHSS worker members currently earn benefits of more than $.60 per hour. If

22 Section 12306.1(d)(6) took effect, the wages of members in Contra Costa County would be reduced to

23 $10.32 per hour, and the wages and benefits of members in other counties would also be reduced.

24 UHW’s members would be irreparably harmed by these reductions in IHSS wages and/or benefits.

25 UHW members also would be harmed by the State’s approval and implementation of the Fresno

26 County-proposed reduction in IHSS rates from $11.10 to $8.60 in hourly wages and benefits, or of any

27 other county-proposed reductions in IHSS rates in counties where UHW represents IHSS providers.

28 UHW brings this suit on behalf of its members, who would have standing to sue in their own right and

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1 whose personal participation in this litigation is not necessary, in order to enjoin Defendants from

2 implementing Section 12306.1(d)(6) or otherwise reducing IHSS wages and benefits unlawfully.

3

26. Plaintiff Service Employees International Union United Long-Term Care Workers

4 (“ULTCW”) is an unincorporated association whose members include approximately 175,000 IHSS

5 workers in 10 counties. Some members provide services for their minor children. Plaintiff ULTCW is

6 an affiliate of SEIU. ULTCW was established to improve the wages, benefits, and working conditions

7 of service employees, including IHSS providers, throughout California. ULTCW has for years been an

8 advocate for IHSS consumers and quality of care. Some of ULTCW’s IHSS worker members currently

9 earn wages of more than $9.50 per hour, including those in Alameda, Monterey, Napa, Santa Cruz, and

10 Solano counties, who all earn $11.50 per hour; Mendocino County, who earn $9.90 per hour; and San

11 Benito County, who earn $10.50 per hour. In addition, some of ULTCW’s IHSS worker members

12 currently earn benefits of more than $.60 per hour. If Section 12306.1(d)(6) took effect, the wages of

13 members in Napa County would be reduced to $10.20 per hour, the wages of members in Mendocino

14 County would be reduced to $9.64 per hour, and the wages and benefits of members in other counties

15 may also be reduced. ULTCW’s members would be irreparably harmed by these reductions in IHSS

16 wages and benefits. ULTCW members also would be harmed by the State’s approval and

17 implementation of other county-proposed reductions in IHSS rates in counties where ULTCW

18 represents IHSS providers. ULTCW brings this suit on behalf of its members, who would have

19 standing to sue in their own right and whose personal participation in this litigation is not necessary, in

20 order to enjoin Defendants from implementing Section 12306.1(d)(6) or otherwise reducing IHSS

21 wages and benefits unlawfully.

22

27. Plaintiff Service Employees International Union Local 521 (“Local 521”) is an

23 unincorporated association whose members include approximately 15,000 IHSS workers in Santa Clara

24 County and San Mateo County. Some members provide services for their minor children. Local 521 is

25 an affiliate of SEIU. Local 521 was established to improve the wages, benefits, and working

26 conditions of service employees, including IHSS providers, in Central Northern California. Local 521,

27 through its predecessor unions, has long been an advocate for IHSS consumers and quality of care. All

28 of Local 521’s IHSS worker members currently earn wages of more than $9.50 per hour and at least

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1 some of UHW’s IHSS worker members currently earn benefits of more than $.60 per hour. Members

2 in Santa Clara County currently earn wages of $12.20 per hour, and members in San Mateo County

3 currently earn wages of $11.50 per hour. If Section 12306.1(d)(6) took effect, these members’ wages

4 and benefits would be reduced to below current amounts. Local 521’s members would be irreparably

5 harmed by these reductions in IHSS wages and benefits. Local 521 members also would be harmed by

6 the State’s approval and implementation of other county-proposed reductions in IHSS rates in counties

7 where Local 521 represents IHSS providers. Local 521 brings this suit on behalf of its members, who

8 would have standing to sue in their own right and whose personal participation in this litigation is not

9 necessary, in order to enjoin Defendants from implementing Section 12306.1(d)(6) or otherwise

10 reducing IHSS wages and benefits unlawfully.

11

28. Plaintiff Service Employees International Union California State Council (“California

12 State Council”) is a state-wide affiliate of SEIU. More than 20 local unions representing over 700,000

13 workers and retirees belong to the California State Council. Some members provide services for their

14 minor children. Some retiree members receive IHSS services. Over 87,000 of the State Council’s

15 members are IHSS providers earning wages of greater than $9.50 per hour, some of whom also earn

16 benefits of greater than $.60 per hour. Some of these members are retirees who receive IHSS services.

17 The California State Council advocates for the interests of its affiliated local unions and their members

18 before legislative bodies, regulatory agencies, and the courts. The California State Council has long

19 been an advocate for IHSS consumers and quality of care. The California State Council brings this suit

20 on behalf of its affiliate local unions and the members of its affiliates, who would have standing to sue

21 in their own right and whose personal participation in this litigation is not necessary, in order to enjoin

22 Defendants from implementing Section 12306.1(d)(6) or otherwise reducing IHSS wages and benefits

23 unlawfully.

24

29. Plaintiff United Domestic Workers of America, AFSCME, Local 3930, AFL-CIO

25 (“UDW”), is an unincorporated association whose members include approximately 55,000 IHSS

26 workers in 11 counties. Some members provide services for their minor children. Plaintiff UDW is an

27 affiliate of the American Federation of State, County and Municipal Employees (“AFSCME”). UDW

28 was established to improve the wages, benefits, and working conditions of IHSS providers throughout

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1 California. UDW has for years been an advocate for IHSS consumers and quality of care. Some of

2 UDW’s members currently earn wages of more than $9.50 per hour, including those in Placer ($10.00

3 per hour), Riverside ($10.25 per hour), San Luis Obispo ($10.00 per hour), and Santa Barbara ($10.00

4 per hour). In addition, some of UDW’s IHSS worker members currently earn benefits of more than

5 $.60 per hour. If Section 12306.1(d)(6) took effect, the wages of UDW’s members would be reduced.

6 UDW’s members would be irreparably harmed by these reductions in IHSS wages and benefits. UDW

7 members also would be harmed by the State’s approval and implementation of other county-proposed

8 reductions in IHSS rates in counties where UDW represents IHSS providers. UDW brings this suit on

9 behalf of its members, who would have standing to sue in their own right and whose personal

10 participation in this litigation is not necessary, in order to enjoin Defendants from implementing

11 Section 12306.1(d)(6) or otherwise reducing IHSS wages and benefits unlawfully.

12

30. Plaintiff California United Homecare Workers (“CUHW”), is an unincorporated

13 association whose members include approximately 18,000 IHSS workers in 18 counties. Some

14 members provide services for their minor children. Plaintiff CUHW is jointly affiliated with SEIU and

15 AFSCME, and is a member of the California State Council. Through the California State Council,

16 CUHW has been an advocate for increased access to and quality of IHSS services. Some of CUHW’s

17 members currently earn wages of more than $9.50 per hour, including those in Madera County ($9.75

18 per hour). If Section 12306.1(d)(6) took effect, the wages of CUHW’s members would be reduced.

19 CUHW’s members would be irreparably harmed by these reductions in IHSS wages and benefits.

20 CUHW members also would be harmed by the State’s approval and implementation of other

21 county-proposed reductions in IHSS rates in counties where CUHW represents IHSS providers.

22 CUHW brings this suit on behalf of its members, who would have standing to sue in their own right

23 and whose personal participation in this litigation is not necessary, in order to enjoin Defendants from

24 implementing Section 12306.1(d)(6) or otherwise reducing IHSS wages and benefits unlawfully.

25

31. Defendant Arnold Schwarzenegger is the Governor of the State of California.

26 Defendant Schwarzenegger is sued in his official capacity.

27

32. Defendant John A. Wagner is the Director of the California Department of Social

28 Services and, as such, is responsible for administering the IHSS program. Defendant Wagner is sued

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1 in his official capacity.

2

33. Defendant David Maxwell-Jolly is the Director of the California Department of Health

3 Care Services and, as such, is responsible for administering Medi-Cal. The Department of Health Care

4 Services is the “single State agency” responsible for administration of the State Medi-Cal Plan.

5 Defendant Maxwell-Jolly is sued in his official capacity.

6

34. Defendant John Chiang is the California State Controller and, as such, is responsible for

7 issuing payments to IHSS providers. Defendant Chiang is sued in his official capacity.

8

35. Defendant Fresno County provides the funding for the county’s share of the costs of the

9 IHSS program in Fresno County, and the Fresno County Board of Supervisors sits as the Governing

10 Board of the Fresno County In-Home Supportive Services Public Authority.

11

36. Defendant Fresno County In-Home Supportive Services Public Authority (“Fresno

12 County IHSS Public Authority”) administers the IHSS program in Fresno County and is responsible for

13 determining the wages and benefits of Fresno County’s IHSS providers.

14

FACTUAL ALLEGATIONS

15 California’s IHSS Program

16

37. California’s IHSS program is designed to provide services to elderly or disabled persons

17 who are unable to remain safely in their homes without such services. Cal. Welf. & Inst. Code

18 §12300(a).

19

38. These services may include assistance with bathing, dressing, feeding, movement,

20 taking necessary medications, and travel to medical appointments. Id. §12300(b)-(c).

21

39. The IHSS program provides in-home assistance with these tasks of everyday living to

22 hundreds of thousands of Californians.

23

40. An IHSS consumer is assessed, pursuant to statewide guidelines, to determine his or her

24 need for supportive services. Based on that assessment, the consumer is authorized to receive a certain

25 number of hours of IHSS services for specific service tasks. See id. §12301.2.

26

41. In many cases, IHSS providers are related to the person they are assisting. Sometimes

27 this relative has left a higher-paying job to provide this critical assistance to his or her loved one.

28

42. The wages and benefits of IHSS providers are paid for with a combination of federal,

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1 state, and county funds. The State pays 65 percent of the approved nonfederal cost of IHSS providers’

2 wages and benefits, up to a statutorily determined cap, and the county pays the remainder. Id.

3 §§12306(b)-(c), 12306.1(c)-(d).

4

43. In fiscal year 2008-09, the State contributed 65 percent of the nonfederal share of IHSS

5 providers’ wages and benefits, up to a total maximum wage and benefit package (including all sources

6 of funding) of $12.10 per hour. See id. §12306.1(d)(5).

7

44. As relevant here, in most counties, the wages and benefits of IHSS providers are set, in

8 part, by county-established public agencies (called “public authorities”), through a process that may

9 include collective bargaining. Id. §12301.6(a)(2), (c)(1).

10

45. In some counties, collective bargaining agreements play a role in determining the level

11 of wages and benefits to IHSS workers in the county. These collective bargaining agreements are

12 renegotiated every two to three years.

13

46. The California Department of Health Care Services is required by state law to “establish

14 a provider reimbursement rate methodology to determine payment rates” for IHSS providers. Id.

15 §14132.95(j)(2)(A)(I).

16

47. When a county seeks to increase or decrease wages, it must submit a rate change request

17 for approval by the California Department of Social Services and the California Department of Health

18 Care Services, which are authorized to grant conditional approval subject to available funding. Cal.

19 Welf. & Inst. Code §12306.1(a)-(b).

20

48. On information and belief, the Department of Social Services and Department of Health

21 Care Services review rate change requests only for compliance with state procedural requirements and

22 to make sure the approved wage is equal to or greater than the state and federal minimum wage

23 amounts.

24 Section 12306.1(d)(6)

25

49. In February 2009, the California Legislature, during the Third Extraordinary Legislative

26 Session Legislative session, passed Senate Bill No. 6 as part of an emergency budget compromise.

27 That bill included Section 12306.1(d)(6), which provides:

28

Notwithstanding [other provisions of §12306.1(d)], the state shall participate [in paying

the wages of IHSS providers] in a total cost of wages up to nine dollars and fifty cents

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1

($9.50) per hour and in individual health benefits up to sixty cents ($0.60) per hour.

This paragraph shall become operative on July 1, 2009.

2

3

50. The California Department of Health Care Services has represented to the federal

4 government that the effect of Section 12306.1(d)(6) was to rescind the approval of all county wage

5 rates above $9.50 per hour and benefit rates above $.60 per hour.

6

51. Prior to Section 12306.1(d)(6)’s enactment, the Legislature did not properly consider the

7 effect of this statute on Medi-Cal’s efficiency, economy, and quality of care, and the effect of this

8 statute on access to Medi-Cal services.

9

52. On April 2, 2009, the California Department of Social Services issued an All-County

10 Letter informing counties how Section 12306.1(d)(6) would be implemented. That letter directed

11 counties to “submit a PA Rate Request to reduce the wages and health benefits to the $10.10 level”

12 ($9.50 per hour in wages and $.60 per hour in benefits) by May 1, 2009, in order for the new rate to

13 take effect on July 1, 2009. The letter also stated that if the county wage remained above $9.50 the

14 State would no longer share in the cost of the amount above $9.50, and if the county benefit rate

15 remained above $.60 the State would no longer share in the cost of the amount above $.60.

16

53. On May 1, 2009, the Department of Social Services issued a new All-County

17 Information Notice directing all counties paying wages above $9.50 per hour and/or benefits above

18 $.60 per hour to submit a rate change request, and moved the applicable deadline to June 1, 2009.

19 Effect of Section 12306.1(d)(6) on IHSS Provider Wage Rates.

20

54. Twenty-two California counties currently pay IHSS providers wages greater than $9.50

21 per hour. These counties are Alameda, Calaveras, Contra Costa, Fresno, Madera, Marin, Mendocino,

22 Monterey, Napa, Placer, Riverside, Sacramento, San Benito, San Francisco, San Luis Obispo, San

23 Mateo, Santa Barbara, Santa Clara, Santa Cruz, Solano, Sonoma, and Yolo.

24

55. In many of these counties, the wages are established, in part, by collective bargaining

25 agreements with UHW, ULTCW, Local 521, UDW, or CUHW.

26

56. In response to the enactment of Section 12306.1(d)(6), a number of counties planned to

27 reduce the wages and/or benefits of IHSS providers, effective July 1, 2009.

28

57. The Fresno County Board of Supervisors, sitting as itself and as the In-Home

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1 Supportive Services Public Authority Governing Board, approved a notice to the Department of Social

2 Services that Fresno County would reduce the wages and benefits of IHSS providers by $1.00 per hour

3 – wages would be reduced from $10.25 per hour to $9.50 per hour, and benefits would be reduced from

4 $.85 per hour to $.60 per hour – effective July 1, 2009.

5

58. The Human Resources Department of Contra Costa County informed UHW that Contra

6 Costa County would reduce the wages of IHSS providers by $1.18 per hour, from $11.50 per hour to

7 $10.32 per hour, effective July 1, 2009.

8

59. The In-Home Supportive Services Public Authority of Napa County approved a notice

9 that Napa County would reduce the wages of IHSS providers from $11.50 per hour to $10.20 per hour,

10 effective July 1, 2009.

11

60. The IHSS Public Authority Governing Board of Mendocino County approved a notice

12 of reduction of the IHSS wage from $9.90 per hour to $9.64 per hour, effective July 1, 2009.

13

61. Other counties informed Plaintiffs that they intended to reduce the wages of IHSS

14 providers effective July 1, 2009.

15

62. The Department of Social Services and the Department of Health Care Services

16 approved all county requests to reduce wages and benefits in implementation of Section 12306.1(d)(6).

17

63. In the counties in which wages and/or benefits would be reduced, all IHSS providers

18 would be harmed by the reduction in their wages and/or benefits.

19

64. Additionally, in all counties, IHSS provider members of UHW, ULTCW, Local 521, the

20 California State Council, UDW, and CUHW would be harmed because their unions would face greater

21 difficulty bargaining for increased wages and/or benefits. Within the next year, UHW, ULTCW, Local

22 521, UDW, and CUHW will be negotiating collective bargaining agreements for IHSS providers

23 currently earning wages of $9.50 per hour or less and/or benefits of $.60 per hour or less, and intend to

24 bargain for increasing these wages above $9.50 per hour and benefits above $.60 per hour.

25 Effect of Section 12306.1(d)(6) on IHSS Consumers

26

65. In the counties in which wages would be reduced, many IHSS providers would be

27 forced to leave IHSS employment to seek higher paying jobs. Not all the vacancies created by IHSS

28 providers leaving their employment would be filled with new IHSS providers.

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1

66. As a result of these vacancies, many IHSS consumers in these counties would be unable

2 to find providers for any or all of their authorized IHSS hours. These consumers would either have to

3 make do with reduced or eliminated IHSS services, or be forced to enter nursing homes or other

4 residential institutions.

5

67. The level of provider payments set by Section 12306.1(d)(6) would not be adequate to

6 enlist enough IHSS providers so that the care and services are available to Medi-Cal recipients to the

7 same extent they are available to the general population in the same geographic areas.

8

68. The level of provider payments set by Section 12306.1(d)(6) would also force disabled

9 individuals into nursing homes who could remain in their homes with the help of supportive services

10 and who wish to remain in their homes.

11 Fresno County Wage Reduction

12

69. The memorandum of understanding between UHW and Fresno County expired in late

13 2009, and the parties to that agreement have been engaged in contract negotiations. On April 14, 2010,

14 Fresno County announced its intention to declare a bargaining impasse and implement, unilaterally, an

15 $8.00 per hour wage rate, effective July 1, 2010.

16

70. On May 25, 2010, the Fresno County Board of Supervisors voted to submit a rate

17 reduction request to the State seeking to reduce IHSS provider wages to $8.00 and benefits to $0.60.

18

71. On May 26, 2010, Fresno County submitted a rate change request reflecting this

19 decrease to the Department of Social Services.

20

72. On information and belief, in June 2010, the Department of Social Services and the

21 Department of Health Care Services approved or will approve Fresno County’s rate change request, to

22 take effect on July 1, 2010. Neither Department considered the effect of the decrease on Medi-Cal’s

23 efficiency, economy, and quality of care, or upon access to Medi-Cal services prior to approving this

24 rate decrease.

25

73. The reduction of IHSS provider hourly wages in Fresno County from $10.25 to $8.00,

26 and of benefits from $0.85 to $0.60, will have a significantly detrimental effect upon the quality of care

27 and access to care of IHSS recipients, and will cause many IHSS recipients to be unnecessarily

28 institutionalized.

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1

74. On information and belief, absent injunctive relief, other counties may propose

2 material reductions in IHSS provider rates and State Defendants will approve those reductions without

3 considering the effect of the decrease on Medi-Cal’s efficiency, economy, and quality of care, or its

4 effect on access to Medi-Cal services.

5

CLASS ACTION ALLEGATIONS

6 Allegations Related to Claims Against State Defendants

7

75. Plaintiffs Miller, Dominguez, Alex Brown, Donna Brown, Lipton, Meyer, Gordon,

8 Ayers, Sheppard, Martinez, and Stewart bring the First, Second, Third, and Fourth Claims for Relief as

9 a class action, pursuant to Fed. R. Civ. P. 23(a), (b)(1), and/or (b)(2), on behalf of themselves and the

10 following Plaintiff Class, against Defendants Schwarzenegger, Wagner, Maxwell-Jolly, and Chiang

11 (hereinafter “State Defendants”):

12

All IHSS consumers residing in Alameda, Calaveras, Contra Costa, Fresno, Madera,

Marin, Mendocino, Monterey, Napa, Placer, Riverside, Sacramento, San Benito, San

13

Francisco, San Luis Obispo, San Mateo, Santa Barbara, Santa Clara, Santa Cruz,

Solano, Sonoma, and Yolo counties.

14

15

76. Plaintiffs Miller, Dominguez, Alex Brown, Donna Brown, Lipton, Meyer, Gordon,

16 Ayers, Sheppard, Martinez, and Stewart are members of the Plaintiff Class on whose behalf the First,

17 Second, Third, and Fourth Claims for Relief are brought against State Defendants.

18

77. The Plaintiff Class consists of tens of thousands of individuals and is therefore so

19 numerous that joinder of all members is impracticable.

20

78. Common questions of law and fact predominate over any questions affecting individual

21 class members. Questions of law and fact common to members of the Plaintiff Class as a whole

22 include, but are not limited to, the following:

23

a. Whether the State failed to give the required consideration to the factors of

24

efficiency, economy, quality of care, and access to services prior to the

25

enactment of Section 12306.1(d)(6), in violation of the federal Medicaid Act, 42

26

U.S.C. §1396a(a)(30)(A);

27

b. Whether the IHSS provider wages and benefits that will result from the

28

implementation of Section 12306.1(d)(6) will be inconsistent with Medicaid’s

17
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1

mandated quality of care, and will not be sufficient to enlist enough IHSS

2

providers so that care and services under Medi-Cal are available at least to the

3

extent that such care and services are available to the general population in the

4

geographic area, in violation of the federal Medicaid Act, 42 U.S.C.

5

§1396a(a)(30)(A);

6

c. Whether the implementation of Section 12306.1(d)(6) will violate the rights of

7

Plaintiffs Miller, Dominguez, Alex Brown, Donna Brown, Lipton, Meyer,

8

Gordon, Ayers, Sheppard, Martinez, Stewart, and class members to be free from

9

discrimination on the basis of their disability under the ADA, 42 U.S.C. §12132,

10

by forcing disabled individuals who could otherwise remain in their homes to

11

enter nursing homes or other residential institutions.

12

d. Whether the implementation of Section 12306.1(d)(6) will violate the rights of

13

Plaintiffs Miller, Dominguez, Alex Brown, Donna Brown, Lipton, Meyer,

14

Gordon, Ayers, Sheppard, Martinez, Stewart, and class members to be free from

15

discrimination on the basis of their disability under Section 504 of the

16

Rehabilitation Act, 29 U.S.C. §794(a), by forcing disabled individuals who

17

could otherwise remain in their homes to enter nursing homes or other

18

residential institutions.

19

79. Plaintiffs Miller, Dominguez, Alex Brown, Donna Brown, Lipton, Meyer, Gordon,

20 Ayers, Sheppard, Martinez, and Stewart will fairly and adequately represent and protect the interests of

21 the Plaintiff Class. Plaintiffs have retained counsel competent and experienced in complex class

22 actions and federal civil rights litigation. Plaintiffs Miller, Dominguez, Alex Brown, Donna Brown,

23 Lipton, Meyer, Gordon, Ayers, Sheppard, Martinez, and Stewart’s interests are co-extensive with those

24 of class members, and are not antagonistic to them.

25

80. Plaintiffs Miller, Dominguez, Alex Brown, Donna Brown, Lipton, Meyer, Gordon,

26 Ayers, Sheppard, Martinez, and Stewart’s claims are typical of class members’ claims. Like other class

27 members, they are currently receiving IHSS services and their IHSS providers’ wages and benefits may

28 be reduced as a result of Section 12306.1(d)(6). Like other class members, they face a substantial risk

18
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1 of irreparable harm as a result of State Defendants’ conduct.

2

81. Class certification of the First, Second, Third, and Fourth Claims for Relief against State

3 Defendants is appropriate pursuant to Fed. R. Civ. P. 23(b)(1)(A) because the prosecution of separate

4 actions by individual class members would create a risk of inconsistent or varying adjudications with

5 respect to individual class members that would establish incompatible standards of conduct for the

6 party opposing the class.

7

82. Class certification of the First, Second, Third, and Fourth Claims for Relief against State

8 Defendants is appropriate pursuant to Fed. R. Civ. P. 23(b)(1)(B) because the prosecution of separate

9 actions by individual class members would create a risk of adjudications with respect to individual

10 class members that would, as a practical matter, be dispositive of the interests of the other members not

11 parties to the adjudications.

12

83. Class certification of the First, Second, Third, and Fourth Claims for Relief is

13 appropriate pursuant to Fed. R. Civ. P. 23(b)(2) because State Defendants have acted or refused to act

14 on grounds generally applicable to the Class, making appropriate declaratory and injunctive relief with

15 respect to Plaintiffs Miller, Dominguez, Alex Brown, Donna Brown, Lipton, Meyer, Gordon, Ayers,

16 Sheppard, Martinez, Stewart, and the Plaintiff Class as a whole.

17 Allegations Related to Claims Against Fresno County Defendants

18

84. Plaintiffs Miller, Alex Brown, Martinez, and Stewart bring the Third and Fourth Claims

19 for Relief as a class action, pursuant to Fed. R. Civ. P. 23(a), (b)(1), and/or (b)(2), on behalf of

20 themselves and the following Plaintiff Class, against Defendants Fresno County and Fresno County

21 In-Home Supportive Services Public Authority (hereinafter “Fresno County Defendants”):

22

All IHSS consumers residing in Fresno County.

23

85. Plaintiffs Miller, Alex Brown, Martinez, and Stewart are members of the Plaintiff Class

24 on whose behalf the Third and Fourth Claims for Relief are brought against Fresno County Defendants.

25

86. The Plaintiff Class consists of thousands of individuals and is therefore so numerous

26 that joinder of all members is impracticable.

27

87. Common questions of law and fact predominate over any questions affecting individual

28 class members. Questions of law and fact common to members of the Plaintiff Class as a whole

19
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1 include, but are not limited to, the following:

2

a. Whether the reduction of IHSS wages and/or benefits will violate the rights of

3

Plaintiffs Miller, Alex Brown, Martinez, Stewart, and class members to be free

4

from discrimination on the basis of their disability under the ADA, 42 U.S.C.

5

§12132, by forcing disabled individuals who could otherwise remain in their

6

homes to enter nursing homes or other residential institutions.

7

b. Whether the reduction of IHSS wages and/or benefits will violate the rights of

8

Plaintiffs Miller, Alex Brown, Martinez, Stewart, and class members to be free

9

from discrimination on the basis of their disability under Section 504 of the

10

Rehabilitation Act, 29 U.S.C. §794(a), by forcing disabled individuals who

11

could otherwise remain in their homes to enter nursing homes or other

12

residential institutions.

13

88. Plaintiffs Miller, Alex Brown, Martinez, and Stewart will fairly and adequately

14 represent and protect the interests of the Plaintiff Class. Plaintiffs have retained counsel competent and

15 experienced in complex class actions and federal civil rights litigation. Plaintiffs Miller, Alex Brown,

16 Martinez, and Stewart’s interests are co-extensive with those of class members, and are not

17 antagonistic to them.

18

89. Plaintiffs Miller, Alex Brown, Martinez, and Stewart’s claims are typical of class

19 members’ claims. Like other class members, they are currently receiving IHSS services and their IHSS

20 providers’ wages and benefits may be reduced as a result of Section 12306.1(d)(6) and/or actions by

21 Fresno County Defendants. Like other class members, they face a substantial risk of irreparable harm

22 as a result of Fresno County Defendants’ conduct.

23

90. Class certification of the Third and Fourth Claims for Relief against Fresno County

24 Defendants is appropriate pursuant to Fed. R. Civ. P. 23(b)(1)(A) because the prosecution of separate

25 actions by individual class members would create a risk of inconsistent or varying adjudications with

26 respect to individual class members that would establish incompatible standards of conduct for the

27 party opposing the class.

28

91. Class certification of the Third and Fourth Claims for Relief against Fresno County

20
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1 Defendants is appropriate pursuant to Fed. R. Civ. P. 23(b)(1)(B) because the prosecution of separate

2 actions by individual class members would create a risk of adjudications with respect to individual

3 class members that would, as a practical matter, be dispositive of the interests of the other members not

4 parties to the adjudications.

5

92. Class certification of the Third and Fourth Claims for Relief is appropriate pursuant to

6 Fed. R. Civ. P. 23(b)(2) because Fresno County Defendants have acted or refused to act on grounds

7 generally applicable to the Class, making appropriate declaratory and injunctive relief with respect to

8 Plaintiffs Patsy Miller, Alex Brown, Martinez, and Stewart, and the Plaintiff Class as a whole.

9

FIRST CLAIM FOR RELIEF

10

(Violation of 42 U.S.C. §1396a(a)(30)(A)/Supremacy Clause,

Brought By Plaintiffs UHW, ULTCW, Local 521, California State Council, UDW,

11

and CUHW On Behalf Of Themselves And By Plaintiffs Miller, Dominguez,

Alex Brown, Donna Brown, Lipton, Meyer, Gordon, Ayers, Sheppard, Martinez, and Stewart

12

On Behalf Of Themselves And On Behalf Of The Class, Against State Defendants)

13

93. Plaintiffs reallege and incorporate by reference all preceding paragraphs as if fully set

14 forth herein.

15

94. The federal Medicaid Act, 42 U.S.C. §1396a(a)(30)(A), requires, in relevant part, that a

16 state Medicaid plan:

17

provide such methods and procedures relating to the utilization of, and the payment for,

care and services available under the plan . . . as may be necessary . . . to assure that

18

payments are consistent with efficiency, economy, and quality of care and are sufficient

to enlist enough providers so that care and services are available under the plan at least

19

to the extent that such care and services are available to the general population in the

geographic area . . . .

20

21

95. 42 U.S.C. §1396a(a)(30)(A) mandates that states consider the effect of any proposed

22 changes to provider payments upon the efficiency, economy, quality of care, and access to services

23 before making changes in those payments. See Orthopaedic Hospital v. Belshe, 103 F.3d 1491, 1496

24 (9th Cir. 1997) (in setting rates states must consider effect upon efficiency, economy, quality of care,

25 and access, including through reliance on “cost studies . . . that provide reliable data”).

26

96. In enacting Section 12306.1(d)(6), the California Legislature did not give the required

27 consideration to or conduct the required analysis of the effect of Section 12306.1(d)(6) on efficiency,

28 economy, quality of care, and access to services prior to its enactment. Instead, Section 12306.1(d)(6)

21
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1 was enacted solely for budgetary reasons.

2

97. Section 12306.1(d)(6) therefore conflicts with, and is preempted by, 42 U.S.C.

3 §1396a(a)(30)(A).

4

98. If the State Defendants implement Section 12306.1(d)(6), their conduct will cause

5 irreparable injury to Plaintiffs and the Plaintiff Class.

6

SECOND CLAIM FOR RELIEF

7

(Violation of 42 U.S.C. §1396a(a)(30)(A)/Supremacy Clause,

Brought By Plaintiffs UHW, ULTCW, Local 521, California State Council, UDW, and CUHW On

8 Behalf Of Themselves and By Plaintiffs Miller, Dominguez, Alex Brown, Donna Brown, Lipton,

Meyer, Gordon, Ayers, Sheppard, Martinez, and Stewart On Behalf Of Themselves And On Behalf Of

9

The Class, Against State Defendants)

10

99. Plaintiffs reallege and incorporate by reference all preceding paragraphs as if fully set

11 forth herein.

12

100. The federal Medicaid Act, 42 U.S.C. §1396a(a)(30)(A), requires that states’ provider

13 payments be “consistent with efficiency, economy, and quality of care and . . . sufficient to enlist

14 enough providers so that care and services are available under the plan at least to the extent that such

15 care and services are available to the general population in the geographic area.”

16

101. The IHSS provider wages and benefits that would result from the implementation of

17 Section 12306.1(d)(6) would not be consistent with Medicaid’s mandated quality of care.

18

102. The IHSS provider wages and benefits that would result from the implementation of

19 Section 12306.1(d)(6) would not be sufficient to enlist enough IHSS providers so that care and services

20 under Medi-Cal were available at least to the extent that such care and services were available to the

21 general population in the geographic area.

22

103. Section 12306.1(d)(6) therefore conflicts with, and is preempted by, 42 U.S.C.

23 §1396a(a)(30)(A).

24

104. If the State Defendants implement Section 12306.1(d)(6), their conduct will cause

25 irreparable injury to Plaintiffs and the Plaintiff Class.

26

THIRD CLAIM FOR RELIEF

27

(Violation of 42 U.S.C. §12132/42 U.S.C. §1983/Supremacy Clause,

Brought By Plaintiffs UHW, ULTCW, Local 521, California State Council, UDW, and CUHW On

28 Behalf of Themselves, and By Plaintiffs Miller, Dominguez, Alex Brown, Donna Brown, Lipton,

Meyer, Gordon, Ayers, Sheppard, Martinez, and Stewart On Behalf Of Themselves And On Behalf Of

22
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1

The Class, Against State Defendants And Fresno County Defendants)

2

105. Plaintiffs reallege and incorporate by reference all preceding paragraphs as if fully set

3 forth herein.

4

106. The Americans with Disabilities Act (“ADA”), 42 U.S.C. §12132, provides that “no

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

6 in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to

7 discrimination by any such entity.”

8

107. The unjustified isolation of persons with disabilities in institutions constitutes a form of

9 discrimination prohibited by 42 U.S.C. §12132.

10

108. Plaintiffs Miller, Dominguez, Alex Brown, Donna Brown, Lipton, Meyer, Gordon,

11 Ayers, Sheppard, Martinez, Stewart, and other members of the Plaintiff Class are qualified individuals

12 with disabilities within the meaning of the ADA, and are recipients of IHSS services from a public

13 entity.

14

109. The implementation of Section 12306.1(d)(6) and the resulting reduction of wages and

15 benefits for IHSS providers, including in Fresno County, would violate 42 U.S.C. §12132 by creating a

16 substantial risk that Plaintiffs Miller, Dominguez, Alex Brown, Donna Brown, Lipton, Meyer, Gordon,

17 Ayers, Sheppard, Martinez, Stewart and other members of the Plaintiff Class will be unable to find

18 IHSS providers and will, as a result, be forced to enter nursing homes or other institutional facilities,

19 despite their desire and ability to remain in their homes.

20

110. The approval and implementation of the rate change request submitted by Fresno

21 County in May 2010 would violate 42 U.S.C. §12132 by creating a substantial risk that Plaintiffs

22 Miller, Alex Brown, Martinez, Stewart, and other members of the Fresno Subclass will be unable to

23 find IHSS providers and will, as a result, be forced to enter nursing homes or other institutional

24 facilities, despite their desire and ability to remain in their homes.

25

111. It would cost the Medi-Cal program more money to provide care for Plaintiffs Miller,

26 Dominguez, Alex Brown, Donna Brown, Lipton, Meyer, Gordon, Ayers, Sheppard, Martinez, Stewart,

27 and other members of the Plaintiff Class in nursing homes or other institutional facilities than it would

28 cost to provide IHSS services that would permit Plaintiffs Miller, Dominguez, Alex Brown, Donna

23
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Case4:09-cv-02306-CW Document403 Filed08/31/10 Page25 of 31

1 Brown, Lipton, Meyer, Gordon, Ayers, Sheppard, Martinez, Stewart, and other members of the

2 Plaintiff Class to remain in their homes.

3

112. The implementation of Section 12306.1(d)(6) and the resulting reduction of wages and

4 benefits for IHSS providers, including in Fresno County, would deprive Plaintiffs Miller, Dominguez,

5 Alex Brown, Donna Brown, Lipton, Meyer, Gordon, Ayers, Sheppard, Martinez, Stewart, and other

6 members of the Plaintiff Class of their rights under 42 U.S.C. §12132 to be free from discrimination

7 based on their disability.

8

113. Section 12306.1(d)(6) and the resulting Fresno County wage and benefit rate reduction

9 therefore violate 42 U.S.C. §12132.

10

114. The implementation of Section 12306.1(d)(6) and the resulting reduction of wages and

11 benefits for IHSS providers, including in Fresno County, would cause irreparable injury to Plaintiffs

12 and the Plaintiff Class.

13

115. The reduction of wages and benefits for IHSS providers in Fresno County would

14 deprive Plaintiffs Miller, Alex Brown, Martinez, Stewart, and other members of the Fresno Subclass of

15 their rights under 42 U.S.C. §12132 to be free from discrimination based on their disability.

16

116. The Fresno County rate reduction request submitted in May 2010, and the State’s

17 approval and implementation of that rate reduction, therefore violate 42 U.S.C. §12132.

18

117. The approval and implementation of this rate decrease would cause irreparable injury to

19 Plaintiffs Miller, Alex Brown, Martinez, Stewart, and other members of the Fresno Subclass.

20

FOURTH CLAIM FOR RELIEF

21

(Violation of 29 U.S.C. §794(a)/42 U.S.C. §1983/Supremacy Clause,

Brought By Plaintiffs UHW, ULTCW, Local 521, California State Council, UDW, and CUHW On

22 Behalf of Themselvs, and By Plaintiffs Miller, Dominguez, Alex Brown, Donna Brown, Lipton,

Meyer, Gordon, Ayers, Sheppard, Martinez, and Stewart On Behalf Of Themselves And On Behalf Of

23

The Class, Against State Defendants And Fresno County Defendants)

24

118. Plaintiffs reallege and incorporate by reference all preceding paragraphs as if fully set

25 forth herein.

26

119. Section 504 of the Rehabilitation Act, 29 U.S.C. §794(a), provides that “[n]o otherwise

27 qualified individual with a disability . . . shall, solely by reason of her or his disability, . . . be subjected

28 to discrimination under any program or activity receiving Federal financial assistance.”

24
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1

120. The unjustified isolation of persons with disabilities in institutions constitutes a form of

2 discrimination prohibited by 29 U.S.C. §794(a).

3

121. Plaintiffs Miller, Dominguez, Alex Brown, Donna Brown, Lipton, Meyer, Gordon,

4 Ayers, Sheppard, Martinez, Stewart, and other members of the Plaintiff Class are qualified individuals

5 with disabilities within the meaning of the Rehabilitation Act, and are recipients of IHSS services

6 pursuant to a program receiving federal financial assistance.

7

122. The implementation of Section 12306.1(d)(6) and the resulting reduction of wages and

8 benefits for IHSS providers, including in Fresno County, would violate 29 U.S.C. §794(a) by creating a

9 substantial risk that Plaintiffs Miller, Dominguez, Alex Brown, Donna Brown, Lipton, Meyer, Gordon,

10 Ayers, Sheppard, Martinez, Stewart, and other members of the Plaintiff Class will be unable to find

11 IHSS providers and will, as a result, be forced to enter nursing homes or other institutional facilities,

12 despite their desire and ability to remain in their homes.

13

123. The approval and implementation of the rate change request submitted by Fresno

14 County in May 2010 would violate 29 U.S.C. §794(a) by creating a substantial risk that Plaintiffs

15 Miller, Dominguez, Alex Brown, Donna Brown, Lipton, Meyer, Gordon, Ayers, Sheppard, Martinez,

16 Stewart, and other members of the Plaintiff Class will be unable to find IHSS providers and will, as a

17 result, be forced to enter nursing homes or other institutional facilities, despite their desire and ability

18 to remain in their homes.

19

124. It would cost the Medi-Cal program more money to provide care for Plaintiffs Miller,

20 Dominguez, Alex Brown, Donna Brown, Lipton, Meyer, Gordon, Ayers, Sheppard, Martinez, Stewart,

21 and other members of the Plaintiff Class in nursing homes or other institutional facilities than it would

22 cost to provide IHSS services that would permit Plaintiffs Miller, Dominguez, Alex Brown, Donna

23 Brown, Lipton, Meyer, Gordon, Ayers, Sheppard, Martinez, Stewart, and other members of the

24 Plaintiff Class to remain in their homes.

25

125. Implementation of Section 12306.1(d)(6) and the resulting reduction of wages and

26 benefits for IHSS providers, including in Fresno County, would deprive Plaintiffs Miller, Dominguez,

27 Alex Brown, Donna Brown, Lipton, Meyer, Gordon, Ayers, Sheppard, Martinez, Stewart, and other

28 members of the Plaintiff Class of their rights under 29 US.C. §794(a) to be free from discrimination

25
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Case4:09-cv-02306-CW Document403 Filed08/31/10 Page27 of 31

1 based on their disability.

2

126. Section 12306.1(d)(6) and the resulting Fresno County wage and benefit rate reduction

3 therefore violate 29 U.S.C. §794(a).

4

127. Implementation of Section 12306.1(d)(6) and the resulting reduction of wages and

5 benefits for IHSS providers, including in Fresno County, would cause irreparable injury to Plaintiffs

6 and the Plaintiff Class.

7

128. The reduction of wages and benefits for IHSS providers in Fresno County would

8 deprive Plaintiffs Miller, Alex Brown, Martinez, Stewart, and other members of the Fresno Subclass of

9 their rights under 29 U.S.C. §794(a) to be free from discrimination based on disability.

10

129. The Fresno County rate reduction request submitted in May 2010, and the State’s

11 approval and implementation of that rate reduction, therefore violate 29 US.C. §794(a).

12

130. The approval and implementation of this rate decrease would cause irreparable injury to

13 Plaintiffs Miller, Alex Brown, Martinez, Stewart, and other members of the Fresno Subclass.

14

FIFTH CLAIM FOR RELIEF

15

(Violation of 42 U.S.C. § 1396a(a)(30)(A)/Supremacy Clause,

Brought By Plaintiffs UHW, ULTCW, Local 521, California State Council, UDW, and CUHW On

16

Behalf Of Themselves, Against State Defendants)

17

131. Plaintiffs reallege and incorporate by reference all preceding paragraphs as if fully set

18 forth herein.

19

132. The federal Medicaid Act, 42 US.C. §1396a(a)(30)(A), requires, in relevant part, that a

20 state Medicaid plan:

21

such methods and procedures relating to the utilization of, and the payment for, care and

services available under the plan . . . as may be necessary . . . to assure that payments are

22

consistent with efficiency, economy, and quality of care and are sufficient to enlist

enough providers so that care and services are available under the plan at least to the

23

extent that such care and services are available to the general population in the

geographic area . . . .

24

25

133. 42 U.S.C. §1396a(a)(30)(A) mandates that states consider the effect of any proposed

26 changes to provider payments upon the efficiency, economy, quality of care, and access to services

27 before making changes in those payments.

28

134. In approving county rate decreases, including the rate change request submitted by

26
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Case4:09-cv-02306-CW Document403 Filed08/31/10 Page28 of 31

1 Fresno County in May 2010, the Department of Social Services and the Department of Health Care

2 Services do not give the required consideration to or conduct the required analysis of the effect of such

3 rate decreases on efficiency, economy, quality of care, and access to services prior to such approvals.

4

135. The statutory authorization that permits the Department of Social Services and the

5 Department of Health Care Services to approve county rate reductions without giving the required

6 consideration to or conducting the required analysis of the effect of such rate decreases on efficiency,

7 economy, quality of care, and access to services prior to such approvals is preempted by 42 U.S.C.

8 §1396a(a)(30)(A), which requires such consideration.

9

136. The practice of approving material rate decreases without such consideration conflicts

10 with, and is preempted by, 42 U.S.C. §1396a(a)(30)(A).

11

137. If the State Defendants approve such material rate decreases, their conduct will cause

12 irreparable injury to Plaintiffs.

13

SIXTH CLAIM FOR RELIEF

14

(Violation of 42 U.S.C. §1396a(a)(30)(A)/Supremacy Clause,

Brought By Plaintiffs UHW, ULTCW, Local 521, California State Council, UDW,

15

and CUHW On Behalf Of Themselves, Against State Defendants)

16

138. Plaintiffs reallege and incorporate by reference all preceding paragraphs as if fully set

17 forth herein.

18

139. The federal Medicaid Act, 42 U.S.C. §1396a(a)(30)(A), requires, in relevant part, that a

19 state Medicaid plan:

20

provide such methods and procedures relating to the utilization of, and the payment for,

care and services available under the plan . . . as may be necessary . . . to assure that

21

payments are consistent with efficiency, economy, and quality of care and are sufficient

to enlist enough providers so that care and services are available under the plan at least

22

to the extent that such care and services are available to the general population in the

geographic area . . . .

23

24

140. The federal Medicaid Act, 42 U.S.C. §1396a(a)(30)(A), requires that states’ provider

25 payments be “consistent with efficiency, economy, and quality of care and . . . sufficient to enlist

26 enough providers so that care and services are available under the plan at least to the extent that such

27 care and services are available to the general population in the geographic area.”

28

141. The IHSS provider wages and benefits that would result from the State’s approval and

27
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Case4:09-cv-02306-CW Document403 Filed08/31/10 Page29 of 31

1 implementation of the rate decrease request submitted by Fresno County in May 2010, would not be

2 consistent with Medicaid’s mandated quality of care.

3

142. The IHSS provider wages and benefits that would result from the State’s approval and

4 implementation of the rate decrease request submitted by Fresno County in May 2010, would not be

5 sufficient to enlist enough IHSS providers so that care and services under Medi-Cal were available at

6 least to the extent that such care and services were available to the general population in the geographic

7 area.

8

143. The State’s approval and/or implementation of the rate decrease request submitted by

9 Fresno County in May 2010, therefore conflicts with, and is preempted by, 42 U.S.C.

10 §1396a(a)(30)(A).

11

144. The statutory authorization that permits the Department of Social Services and

12 Department of Health Care Services to approve county rate reductions that are inconsistent with quality

13 care and insufficient to enlist adequate numbers of providers is preempted by 42 U.S.C.

14 §1396a(a)(30)(A).

15

145. If the State Defendants approve such material rate decreases, their conduct will cause

16 irreparable injury to Plaintiffs.

17

PRAYER FOR RELIEF

18

WHEREFORE, all Plaintiffs on behalf of themselves, and Plaintiffs Miller, Dominguez, Alex

19 Brown, Donna Brown, Lipton, Meyer, Gordon, Ayers, Sheppard, Martinez, and Stewart on behalf of all

20 members of the Plaintiff Class, pray that the Court:

21

1) Enter a preliminary injunction, pending a decision on the merits, that (1) enjoins the

22

State Defendants from taking any action (a) to implement Section 12306.1(d)(6) by

23

reducing the maximum wage of IHSS providers that the State will help fund to $9.50

24

per hour and the maximum benefit rate of IHSS providers that the State will help fund

25

to $.60 per hour; (b) to approve or implement any county IHSS rate decreases adopted

26

pursuant to Section 12306.1(d)(6); (c) to approve or implement any material county

27

IHSS rate decreases, including the rate decrease proposed by Fresno County in May

28

2010, without consideration of the impact on access to and quality of care; or (d) to

28
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1

approve or implement the rate decrease proposed by Fresno County in May 2010, and

2

(2) enjoins the Fresno County Defendants from taking any action to implement a wage

3

and benefit reduction for Fresno County IHSS providers, and conditionally certify the

4

proposed classes for the purpose of such relief;

5

2) Certify this action as a class action on behalf of the proposed Plaintiff Classes;

6

3) Designate Plaintiffs Miller, Dominguez, Alex Brown, Donna Brown, Lipton, Meyer,

7

Gordon, Ayers, Sheppard, Martinez, and Stewart as Representatives of the Plaintiff

8

Classes;

9

4) Designate Plaintiffs’ counsel as Counsel for the Plaintiff Classes;

10

5) Enter a declaratory judgment that the enactment and implementation of Section

11

12306.1(d)(6) and the State’s approval of material county rate decreases, including the

12

rate decrease proposed by Fresno County in May 2010, are preempted by the Medicaid

13

Act, 42 U.S.C. §1396a(a)(30)(A), and violate the ADA, 42 U.S.C. §12132, and the

14

Rehabilitation Act, 29 U.S.C. §794(a);

15

6) Enter a declaratory judgment that the enactment and implementation of Section

16

12306.1(d)(6) and the State’s approval of the rate reduction proposed by Fresno County

17

in May 2010, will deprive Plaintiffs Miller, Dominguez, Alex Brown, Donna Brown,

18

Lipton, Meyer, Gordon, Ayers, Sheppard, Martinez, Stewart, and other members of the

19

Plaintiff Class of their rights under the ADA, 42 U.S.C. §12132, and the Rehabilitation

20

Act, 29 U.S.C. §794(a), to be free from discrimination based on their disability;

21

7) Issue a permanent injunction prohibiting the State Defendants from implementing

22

Section 12306.1(d)(6) including by approving any county rate decreases submitted in

23

implementation of that statute, from approving any material county rate decreases

24

without consideration of the effect on access to and quality of care, and from approving

25

or implementing the rate reduction request submitted by Fresno County in May 2010,

26

and prohibiting the Fresno County Defendants from implementing a wage and benefit

27

reduction for Fresno County IHSS providers;

28

8) Award Plaintiffs their costs and expenses, including reasonable attorney’s fees, expert

29
Second Amended Complaint; Case No. C09-02306 CW

Case4:09-cv-02306-CW Document403 Filed08/31/10 Page31 of 31

1

witness fees, and costs of suit; and

2

9) Award such other further and additional relief as the Court may deem just and proper.

3

4 Dated: August 31, 2010

Respectfully submitted,

5

STEPHEN P. BERZON

SCOTT A. KRONLAND

6

STACEY M. LEYTON

PEDER J. THOREEN

7

ANNE N. ARKUSH

EMILY B. WHITE

8

CAROLINE P. CINCOTTA

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By: __/s_/_S_t_a_c_e_y_M__._L_e_y_t_o_n_

Stacey M. Leyton

11

Attorneys for Plaintiffs

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

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30
Second Amended Complaint; Case No. C09-02306 CW

 
 United States District Court For the Northern District of California

1

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

8

NORTHERN DISTRICT OF CALIFORNIA

9

10 Lydia Dominguez, et al.,

No. C 09-2306 CW (JL)

11

Plaintiffs,

ORDER GRANTING IN PART

12

v.

PLAINTIFFS’ MOTION TO COMPEL

(Docket # 344); AND GRANTING IN

13 Arnold Schwarzenegger, et al.,

PART DEFENDANTS’ REQUEST FOR

ADDITIONAL DEPOSITIONS (Docket #

14

Defendants.

388 )

________________________________/

15

I. Introduction

16

All discovery in this case has been referred by the district court (Hon. Claudia

17

Wilken) under 28 U.S.C. §636(b). Plaintiffs move to compel production of documents which

18

have been the subject of a previous order by this Court (Order e-filed May 12, 2010 at

19

Docket # 280). The parties also filed a Joint Statement regarding Defendants’ request for

20

leave to take additional depositions. The Court grants both motions, in part, as discussed

21

below. Plaintiffs’ motion for attorney fees is denied without prejudice, pending Defendants’

22

compliance with the Court’s order.

23

II. Background

24

On February 20, 2009, Governor Schwarzenegger signed into law California Welfare

25

and Institutions Code § 12306.1(d)(6), a bill reducing the maximum state reimbursement

26

rate for California’s In-Home Supportive Services (“IHSS”) program. Dominguez v.

27

Schwarzenegger, 596 F.3d 1087, 1091 (9th Cir. 2010). IHSS subsidizes in-home care for

28

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United States District Court For the Northern District of California

1 individuals who are too ill to meet their own cooking, cleaning, grooming or other personal

2 needs. Id.

3

Plaintiffs in this case include unions representing IHSS service providers and

4 Californians who rely on IHSS-funded care to maintain their independence and live at

5 home. Plaintiffs claim that by enacting § 12306.1(d)(6), the State violated substantive and

6 procedural provisions of the federal Medicaid Act, codified at 42 U.S.C. § 1396a(a)(30)(A)

7 (hereinafter,”§ 30(A)”). Specifically, Plaintiffs claim that the State failed to comply with §

8 30(A)’s requirement that the State must arrange to pay for IHSS services in a manner

9 “consistent with efficiency, economy, and quality of care.” The Ninth Circuit has interpreted

10 § 30(A) to require that the State:

11

“set hospital outpatient reimbursement rates that bear a reasonable

relationship to efficient and economical hospitals' costs of providing quality

12

services, unless the Department shows some justification for rates that

substantially deviate from such costs. To do this, the Department must rely on

13

responsible cost studies, its own or others', that provide reliable data as a

basis for its rate setting.”

14

15 Dominguez, 596 F.3d at 1093 (quoting Orthopaedic Hosp. v. Belshe, 103 F.3d 1491, 1496

16 (9th Cir. 1997)). Plaintiffs contend the State failed to meet these procedural requirements,

17 and seek declaratory and injunctive relief.1

18

The District Court (Hon. Claudia Wilken, presiding) granted Plaintiffs’ motion for a

19 preliminary injunction on June 26, 2009. The Ninth Circuit affirmed the preliminary

20 injunction on appeal on March 3, 2010, finding that the State law could trigger the

21 requirements of § 30(A) due to the “relationship between [State] reimbursement rates and

22 access to in-home supportive services.” Dominguez, 596 F.3d at 1094. State Defendants

23 have petitioned the United States Supreme Court for a writ of certiorari.

24

Plaintiffs are a proposed class of tens of thousands of individuals who currently

25 receive assistance through IHSS and the unions who represent IHSS providers. Plaintiffs

26 seek declaratory and injunctive relief to enforce (1) the procedural and substantive

27

28

1Plaintiffs also brought claims under t he Americans with Disabilities Act and the Rehabilitation Act; only the § 30(A)-based claims are at issue in this discovery dispute.

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United States District Court For the Northern District of California

1 requirements of the Medicaid Act, 42 U.S.C. § 1396a(a)(30)(A) and (2) and the

2 antidiscrimination provisions of the Americans with Disabilities Act of 1990, 42 U.S.C. §

3 12132 and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794(a). On June 8,

4 2010, Judge Wilken granted Plaintiffs’ motion for certification under Federal Rule of Civil

5 Procedure 23(b)(2) of a class composed of IHSS consumers residing in twenty-one

6 counties and a subclass composed of IHSS consumers residing in Fresno county.

7

III. Disputed Discovery

8

Discovery was referred to this Court on April 4, 2010. Plaintiffs brought a motion to

9 compel an adequate response to Plaintiffs’ Interrogatory Three, which requested the

10 following:

11

“All documents memorializing or relating to communications between State

Defendants and officials of the federal government, or internal

12

communications between State Defendants or any of their officers,

employees, or agents, discussing, analyzing, reflecting, or otherwise relating

13

to §12306.1(d)(6).”

14 (Thoreen Decl. 4/28/2010, Ex. A.)
15 Defendants objected on grounds of relevance, attorney-client privilege, deliberative
16 process privilege, and the attorney work-product doctrine, and refused to produce any
17 documents. (Id. at Ex. B.) Defendants argued that Interrogatory Three was irrelevant
18 because it sought discovery on a matter that the Ninth Circuit’s opinion had rendered moot
19 (namely, whether § 12306.1(d)(6) “set” or “affected” rates paid to IHSS providers). (Defs.’
20 Opp., Dkt. 275 at 4.)
21 Plaintiffs moved to compel a response, leading to this Court’s Order of May 12,
22 2010. The Court rejected Defendants’ claim that Interrogatory Three was irrelevant
23 following the Ninth Circuit’s opinion, observing that that opinion was pending appeal and, in
24 any event, only concerned a preliminary injunction (not a determination on the merits).
25 Moreover, Defendants had not stipulated to Plaintiffs’ claim regarding § 12306.1(d)(6) or
26 otherwise conceded that § 12306.1(d)(6) did indeed reduce rates paid to IHSS workers.
27

28

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United States District Court For the Northern District of California

1 Finally, the Court held that the subject matter of Interrogatory Three remained relevant

2 because the case awaited final judgment in the District Court. (Order, Dkt. 280 at 7).

3

This Court found that Defendants had failed to meet their burden of establishing that

4 any privilege applied, and warned that the failure to assert privilege in a timely and

5 adequate manner could result in waiver. The Court reserved judgment as to whether the

6 materials requested actually enjoyed protection under the attorney-client privilege,

7 deliberative process privilege or attorney work product doctrines. Defendants were ordered

8 to provide a Privilege Log complying with the standards in In re Grand Jury Investigation,

9 974 F.2d 1068, 1071 (9th Cir. 1992), within 30 days of May 12, 2010. (Dkt. 280 at 18.)

10

Defendants provided a two-hundred-page Privilege Log on June 11. More than half

11 the entries in the document lacked log numbers, and no index was provided. Defendants

12 filed an amended Privilege Log (with index) on July 2, which listed 846 items with

13 descriptions such as “LAR edits” and “14132.95(j)(2)(A)(iii).” (Thoreen Decl. 6/25 Ex. A at

14 121.)

15

Plaintiffs renewed their motion to compel on June 25, arguing that the Privilege Log

16 was too vague to establish that any privilege attached. Plaintiffs further dispute

17 Defendants’ invocation of the deliberative process privilege, and argue that the Privilege

18 Log listed materials to which no privilege could apply because an attorney had neither sent

19 nor received them. (Pls.’ Supp. Br. i.) Plaintiffs also point to gaps in the Bates numbering

20 reflected in the Privilege Log (and to discrepancies between the first and second versions)

21 to support their theory that Defendants are withholding additional discoverable material.

22 Finally, Plaintiffs seek to recover more than $18,000 for attorney fees and costs spent

23 pursuing their motion to compel.

24

In their opposition, Defendants renew their earlier claim that the Ninth Circuit’s ruling

25 rendered Interrogatory Three moot and irrelevant. (Defs.’ Opp. 2:4) (“[I]t is quite clear that

26 there is nothing left to litigate at the district court level . . . . “). Defendants contend that the

27 “law of the case” doctrine compels this result. Id. In addition, Defendants point out that if

28 the Supreme Court reverses the Ninth Circuit, Plaintiffs will no longer have a cause of

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United States District Court For the Northern District of California

1 action for which Interrogatory Three would be relevant. Defendants claim that they have

2 properly invoked attorney-client privilege, deliberative process privilege, and the attorney

3 work product doctrine. Lastly, Defendants maintain that the apparent omissions and

4 deletions identified by Plaintiffs are the result of hasty editing, deduplication of emails, and

5 other innocent errors or corrections.

6

IV. Analysis

7

A. Party resisting discovery has burden

8

Fed. R. Civ. P 26(b) provides that a party “may obtain discovery regarding any

9 nonprivileged matter that is relevant to any party's claim or defense.” The party resisting

10 discovery “has the burden of clarifying, explaining, and supporting its objection.” Oakes v.

11 Halvorsen Marine Ltd., 179 F.R.D. 281, 283 (C.D.Cal.1998). This Court addresses

12 Defendants’ claims regarding relevance and privilege in the context of Interrogatory Three

13 and the Privilege Log furnished by Defendants.

14

B. Plaintiffs’ Interrogatory Three seeks materials relevant to a disputed

claim in this case.

15

In its Order of May 12, 2010, this Court ruled that the communications sought in

16 Interrogatory Three are “relevant to the general subject matter of the action and . . . directly

17 relevant to a defense;” namely, that § 12306.1(d)(6) did not have the effect of reducing the

18 rates paid to IHSS providers. (Dkt. 280 at 9:6-7.) The Court made this determination after

19 weighing and rejecting Defendants’ argument that the Ninth Circuit had rendered this

20 discovery irrelevant. Specifically, the Court found that the Ninth Circuit did not decide the

21 question of whether § 12306.1(d)(6) “would have the effect of reducing rates paid to IHSS

22 providers;” instead, “[the Ninth Circuit] only presents that as a possible consequence of the

23 State Defendants’ enactment of the statute.” (Dkt. 280 at 8:20-22.)

24

Defendants nonetheless continue to challenge Interrogatory Three as irrelevant,

25 using arguments this Court has already discarded. The only difference is Defendants’

26 invocation of the Ninth Circuit’s opinion as the “law of the case.” The law of the case

27 doctrine holds that when an appeals court “confronts an issue germane to the eventual

28 resolution of [a] case, and resolves it after reasoned consideration . . . that ruling becomes

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United States District Court For the Northern District of California

1 the law of the circuit, regardless of whether doing so is necessary in some strict logical

2 sense.” Cetacean Community v. Bush, 386 F.3d 1169 (9th Cir. 2004) (Kozinski, J.,

3 concurring). The doctrine has no bearing here, because this Court found that the Ninth

4 Circuit had not decided the issue of whether § 12306.1(d)(6) had the effect of reducing

5 rates. As a result, this Court again finds that the materials sought in Plaintiffs’ Interrogatory

6 Three are relevant to disputed claims in this case.2

7

C. With few exceptions, Defendants fail to meet their burden to show

that any privilege attaches to the materials requested in Interrogatory

8

Three.

9

A party asserting a claim of attorney-client privilege or attorney work-product

10 protection must make a prima facie showing that those doctrines apply, typically by

11 submitting a Privilege Log. In re Grand Jury Investigation, 974 F.2d at 1070. In the Ninth

12 Circuit, a Privilege Log must specify at least the following items:

13

“(a) the attorney and client involved, (b) the nature of the document, (c) all

persons or entities shown on the document to have received or sent the

14

document, (d) all persons or entities known to have been furnished the

document or informed of its substance, and (e) the date the document was

15

generated, prepared, or dated.”

16 Id. at 1071. Privilege Logs containing generalized allegations and self-serving, conclusory
17 statements regarding privilege will not suffice; the Privilege Log must instead afford the
18 Court an adequate basis for determining that the materials in question are in fact privileged.
19 See Natural Resources Defense Council v. Gutierrez, 2008 WL 2468494 at 3, (N.D. Cal.,
20 Jun. 17, 2008) (log descriptions such as “question regarding e-mail to clients” and
21 “comments on comment responses” insufficient to support privilege claims).
22 Here, Defendants responded to this Court’s Order by furnishing one Privilege Log
23 within the deadline (which it now styles a “draft”), and later by submitting an untimely
24

25

2In their opposition, Defendants asl o seem to argue that the possibility of reversal by the

26

Supreme Court (depriving Plaintiffs of a cause of action under § 30(A)) means that Plaintiffs do not really need the materials sought in Interrogatory Three. (Defs.’ Opp. at 4:23.) This

27

contention borders on the frivolous. Defendants have no lawful basis for avoiding their FRCP 26 obligations in this case simply because some future contingency could resolve the matter.

28

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United States District Court For the Northern District of California

1 “corrected” version. Neither document affords the Court any basis for determining whether

2 privilege attaches to the majority of emails listed. Long lists of terse, non-descriptive labels

3 such as “IHSS ARRA” and “DC (ARRA MOE issues)” give no indication of whether the

4 underlying materials merely mention the relationship between the IHSS program and

5 ARRA3 (which would be non-privileged), or whether they are communications seeking legal

6 advice regarding that relationship (and are therefore privileged). Likewise, frequent use of

7 undefined acronyms and jargon (“DAR,” “LAR,” “MSR,” “GAS,” “SOF,” “CPE”) renders the

8 descriptions in the document largely impenetrable. See, e.g., Amended Log at 59-63, 87,

9 103 (Dkt. 377 Ex. 2). In its Order of May 12, the Court warned Defendants that failure to

10 assert privilege in a timely and adequate manner could result in waiver of any privilege, and

11 directed Defendants to supply a Privilege Log under the standards spelled out in In Re

12 Grand Jury Investigation. Defendants’ apparent failure to do so would justify the Court in

13 deeming their claims of privilege waived. This Court will nonetheless examine the Privilege

14 Log and attempt to distinguish where Defendants apparently meet their burden of asserting

15 privilege; where they clearly fail to do so; and where the Court (again) lacks sufficient

16 information to decide.

17

D. The Privilege Log identifies some items that appear to be attorney-

client privileged or protected by the attorney work-product doctrine.

18

19

Attorney-client privilege exists to promote “full and open discussion of the facts and

20 tactics surrounding individual legal matters .... [so that the client] may have adequate

21 advice and a proper defense.” Mitchell v. Superior Court, 37 Cal.3d 591, 599, 208

22 Cal.Rptr. 886, 890, 691 P.2d 642 (1984) (citations omitted). A party asserting the privilege

23

24

25

26

27

28 3The American Recovery and Reinvestment Act of 2009, Pub.L. 111–5, Feb. 17, 2009,
123 Stat. 115. ARRA made additional federal funds available for IHSS.

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United States District Court For the Northern District of California

1 must demonstrate that its documents meet the essential requirements4 of the privilege as

2 adopted in this circuit. In re Grand Jury Investigation, 974 F.2d at 1070.

3

Here, at least some of the items in Defendants’ Privilege Log appear to be

4 confidential communications to or from an attorney for the purpose of obtaining legal

5 advice.

6

C

Log # 14, 30, 102-04, 126, 332-33, 327, 462, 602, 605, 635-36, 716, 768-69,

7

797

8 (Amended Privilege Log, Dkt. 377 ex. 2.)

9

The Privilege Log and index indicate that these emails all involve communications

10 with an attorney. All of them reference legal “analysis,” “argument,” “opinion” or

11 “justification” concerning the state programs, funding schemes, and statutes at issue in this

12 case; and most of them were sent either during this litigation or just prior to the filing of the

13 complaint on May 29, 2009. Defendants have met their burden of adequately asserting

14 attorney-client privilege for these items. Numerous log entries are from lawyers and are

15 described as having to do with “requirements,” as in “ARRA requirements and IHSS wages

16 all edits” (Log 690). The Court rejects this approach as requiring too much inference on the

17 Court’s part / doing the Defendants’ work for them. The Privilege Log indicates that

18 Defendants do not rely solely on the attorney work-product doctrine to withhold any of

19 these emails. Instead, Defendants cite work-product protection only in cases in which they

20 also assert attorney-client privilege. As the Court finds that some of the emails listed above

21 are attorney-client privileged (and thus immune from discovery), it need not address

22 whether work-product protection also applies or whether Plaintiffs make a substantial

23 showing of need sufficient to override that protection.

24

E. Defendants’ assertions of deliberative process privilege are

inadequate, because the communications in question are neither

25

“predecisional” nor “deliberative.”

26

27

4“The attorney-client privilege may be divided into eight essential elements: ‘(1) Where

legal advice of any kind is sought (2) from a proefssional legal adviser in his capacity as such,

28 (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6)

are at his instance permanenlty protected (7) from disclosure byhimself or by the legal adviser,

(8) unless the protection be waived.’” In re Grand Jury Investigation, 974 F.2d at 1071 n.2.

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United States District Court For the Northern District of California

1

As this Court’s Order of May 12 pointed out, and as Defendants concede, the

2 deliberative process privilege protects only communications that are both “predecisional”

3 and “deliberative.” (Dkt 275, at 6:16-18.) An agency invoking the privilege must “identify a

4 specific decision to which the document is predecisional’ in order to successfully assert the

5 deliberative process privilege.” L.H. v. Schwarzenegger, 2007 WL 2009807, at *4 (E.D.

6 Cal. June 6, 2007) (quoting Maricopa Audobon Soc’y v. United States Forest Serv., 108

7 F.3d 1089, 1094 (9th Cir. 1997)). The privilege only applies to “significant policy decisions,”

8 Chao v. Mazzola, 2006 WL 2319721, at *1 (N.D. Cal. Aug. 10, 2006), rather than factual

9 material. See In re McKesson Governmental Entities Average Wholesale Price Litigation,

10 264 F.R.D. 595, 601 (N.D.Cal., 2009) (Judge Spero) (“[f]actual material generally is not

11 considered deliberative”).

12

This Court has already found that Defendants failed to identify a policy decision as to

13 which the communications at issue related, and afforded them leave to substantiate their

14 claims in a Privilege Log. (Dkt. 280.) Both versions of Defendants’ Privilege Log fail to

15 identify specific decisions to which the listed emails are “predecisional,” so the Court must

16 rely on assertions in Defendants’ supplemental opposition instead. Defendants’ opposition

17 proposes three predicate “decisions” for these emails.

18

“ . . . the issue before CMS [Centers for Medicare and Medicaid Services]

was the effect of section 12306.1(d)(6) on ARRA’s maintenance of effort

19

provision . . . .”

20

“ . . . the issue was whether the reduction of the cap on the State’s

contribution toward wages and benefits would violate the ARRA.”

21

“ . . . emails and documents withheld by State defendants relate to these

22

issues raised by CMS and SEIU [Plaintiff union] and how best to respond to

those issues.”

23

24 (Defs.’ Supp. Opp. 7:5-19.)

25

As suggested by Defendants’ choice of words, all but the last of these are issues

26 (unsettled questions, assessments of a state of affairs, or determinations of fact), rather

27 than decisions (determinations or conclusions based on analysis or reflection). Even the

28 last “decision” proffered by Defendants (evaluating “how best to respond”) does not clearly

qualify, since Defendants do not state whether any determination was made or whether

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1 Defendants actually decided to respond in any particular way. In the absence of an actual

2 predicate decision to which these materials were “predecisional,” Defendants’ claims of

3 deliberative process privilege fail.

4

The Court in its May 12 Order previously pointed out these deficiencies to

5 Defendants, and warned that waiver of privilege may occur when a party fails to provide

6 adequate descriptive and evidentiary support for each withheld document or item of

7 information for which privilege is claimed. Clarke v. American Commerce Nat'l Bank, 974

8 F.2d 127, 129 (9th Cir.1992). See also United States v. Construction Products Research,

9 Inc., 73 F.3d 464, 473 (2d Cir.1996)(claim of privilege may be rejected where claimant

10 provides deficient privilege log). Given Defendants’ repeated failures to substantiate their

11 claims of privilege, the Court finds that the deliberative process privilege is waived. As

12 such, Defendants are ordered to produce the materials for which deliberative process

13 privilege is invoked as the sole protection, within ten days of issuance of this order.

14

F. The Court orders production of other materials for which

Defendants’ claims of privilege are insufficient.

15

Plaintiffs complain that in addition to the issues raised above, the Privilege Log

16 contains evidence that Defendants have withheld non-privileged materials.

17

First, Plaintiffs argue, the “draft” Privilege Log had substantial gaps in its Bates

18 numbers, indicating omissions. Second, items in the “draft” Privilege Log were deleted

19 from the Amended Privilege Log. Third, the Log and Index show that Defendants claim

20 attorney-client privilege for documents that were neither sent to nor received by an

21 attorney. Finally, Plaintiffs note that the Privilege Log shows that materials marked

22 “privileged” were in fact shared with (or authored by) third parties, triggering a waiver of

23 privilege.

24

Defendants offer an explanation for the first two problems (gaps in Bates numbers

25 and the deleted entries in the amended log): the first Log was a draft, and Defendants had

26 been ordered to itemize individual emails rather than list entire email “threads” or

27 conversations. The process of weeding out irrelevant materials and deleting duplicate

28 email threads resulted in deletion of irrelevant matter and gaps in the Bates numbering.

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1

This would be convincing were it not for the descriptions that Defendants provided

2 for materials in the draft Privilege Log that were ultimately deleted from the Amended Log.

3 The draft log listed items with descriptions that seem relevant to disputed claims in this

4 case, for example:

5

C

Draft Log #24. “Letter re: application of American Recovery and Reinvestment

6

Act (ARRA).”

7

C

Draft Log p. 70, item 1. “IHSS wage reductions and impact on increase to

8

Medicaid FMAP.”

9

Plaintiffs’ concerns that relevant materials have been removed from the Amended

10 Privilege Log are justified. As a result, the Court orders production of the materials

11 referenced as #24, #213, ¶. 44-45 & 70-71 of the “draft” Privilege Log. Defendants do not

12 even respond to the third problem identified by Plaintiffs: numerous entries marked

13 “attorney-client privileged” that did not involve an attorney as either sender/drafter or

14 recipient. Defendants also barely address the fourth problem (invoking privilege for non-

15 confidential communications sent to, or received from, third parties), merely pointing out

16 that one of the third-party individuals actually worked for the State at the time the suit was

17 filed. The Court rules that Defendants have waived privilege as to these items (listed in

18 Pltfs.’ Supp. Brief at 4-5.) They shall be produced within ten days of issuance of this order.

19

G. The Privilege Log lacks sufficient detail for the Court to assess the

remaining claims of privilege.

20

There are numerous claims of attorney-client privilege outstanding. That is, the

21 Court lacks sufficient information either to accept the claim of privilege or to discard that

22 claim completely. Defendants have dragged their heels and ignored the Court, but finding

23 blanket waiver of attorney-client privilege for the balance of the Log entries is a drastic

24 remedy. The Court accordingly, for the last time, orders production of a new Log, under

25 penalty of waiver if it is (again) found deficient.

26

V. Conclusion

27

Defendants meet their burden of asserting attorney-client privilege for only 18 emails

28 out of nearly 800 for which they claim privilege. The Court denies the motion to compel

production of these materials.

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1

Defendants again fail to identify any of their decisions to which the deliberative

2 process privilege would apply, so the Court deems this privilege waived with respect to the

3 approximately 150 emails for which it is offered as the sole protection. The Court grants

4 Plaintiffs’ motion to compel production of these materials, within ten days of issuance of this

5 order.

6

Defendants’ Privilege Log does not furnish enough detail to weigh the remaining

7 claims of privilege. The Court orders Defendants to produce an adequate Privilege Log

8 within 20 days or face waiver of all privilege claims at that time.

9

VI. Parties’ Joint Statement re Defendants’ Request to Take Additional

Depositions

10

This dispute was presented to the Court in a document e-filed at Docket # 388. The

11

Court finds this matters suitable for submission without oral argument under Civil Local

12

Rule 7-1(b). The parties met and conferred in person to no avail. Defendants request that

13

this Court allow for the deposition of the named plaintiffs (including the union plaintiffs),

14

their IHSS providers, and a representative sample of the other declarants.

15

A. Argument

16

Defendant Fresno County and Fresno County In-Home Supportive Services Public

17

Authority (“Fresno County”) and Defendants Governor Arnold Schwarzenegger, David

18

Maxwell- Jolly and John Wagner ( “State Defendants”) request this Court to enlarge the

19

number of depositions beyond the limit in Rule 30 of the Federal Rules of Civil Procedure.

20

Currently, there are 10 individual named plaintiffs and four union plaintiffs. Plaintiffs have

21

submitted more than 75 non-plaintiff declarations and identified another 50+ individuals in

22

discovery who have information regarding their claims. Plaintiffs relied heavily on these

23

declarations in obtaining injunctive relief (twice) and class certification. Defendants argue

24

that due process and fundamental fairness require that the number of depositions be

25

enlarged so that Defendants may evaluate the sufficiency of the claims, including the

26

factual statements made by Plaintiffs and their providers.

27

Plaintiffs have offered to stipulate to an increase in the current deposition limit from

28

10 depositions to 15 depositions to avoid this dispute. Defendants have taken no

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United States District Court For the Northern District of California

1 depositions to date. Plaintiffs ask the Court to find that Defendants cannot make a

2 particularized showing that they need more than 15, nor show that the discovery would not

3 be cumulative and duplicative. Many of the IHSS consumers are elderly and disabled

4 individuals for whom depositions are a greater burden. If Defendants can demonstrate after

5 taking some depositions that they have a genuine need for more, the parties may meet and

6 confer and take the matter up with the Court at that time, if necessary.

7

Plaintiffs argue that Defendants cannot show such genuine need now because,

8 although this case is barely one month from the fact discovery cut-off, they have taken no

9 depositions to date and have not even noticed any depositions. Defendants chose not to

10 depose any of the named plaintiffs at the class certification stage (where such discovery

11 was perhaps most relevant), and for months have simply let pass dates on which Plaintiffs

12 made named plaintiffs available for deposition. Defendants now suggest that they skipped

13 these opportunities “because they need to know the number they may take before selecting

14 deponents.”

15

B. Analysis

16

A party seeking to exceed the presumptive limit on the number of depositions set

17 forth in Fed. R. Civ. P. 30(a)(2)(A)(i) “is required to make a particularized showing as to

18 why the “additional depositions are necessary.” Zeinali v. Raytheon Co., 2008 WL

19 4820993, at *1 (S.D. Cal. Nov. 3, 2008). Leave to take additional depositions shall be

20 granted only “to the extent consistent with Rule 26(b)(2).” Fed. R. Civ. P. 30, see also id.,

21 adv. comm. notes, 1993 amdts. Thus, leave will not be granted where “the discovery

22 sought is unreasonably cumulative or duplicative,” or where “the burden or expense of the

23 proposed discovery outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(2)(C)(i).

24

The Court acknowledges that there are hundreds of thousands of IHSS providers

25 and consumers impacted by this case, and that it is neither possible nor necessary for

26 every such potential witness to be deposed in advance. That a party may “have to face trial

27 witnesses and declarants without having first deposed them does not amount to a

28 particularized showing [for exceeding the limitation on the number of depositions] as

contemplated by the FRCP.” Finazzo v. Hawaiian Airlines, 2007 WL 1425241, at *3 (D.

09-2306 DISCOVERY ORDER

Page 13 of 15

United States District Court For the Northern District of California

1 Haw. May 10, 2007). (“Rule 30(a)(2)(A) clearly contemplates that a party has already taken

2 ten depositions before a motion is filed seeking leave of court for a proposed deposition

3 that would result in more than ten depositions being taken under this rule.” (quotation

4 marks and citation omitted)). Finazzo, 2007 WL 1425241; see also Brooks v. Motsenbocker

5 Advanced Developments, Inc., 2008 WL 2033712, 4 (S.D.Cal. 2008)

6

“Here, Plaintiffs have not presented good cause at this time for leave to take more

than 10 depositions. First, Plaintiffs bring this motion 3 weeks before the discovery

7

cutoff, and before they have taken any depositions. . . Second, because they have

not yet taken any depositions, Plaintiffs cannot make a particularized showing for

8

why the additional depositions are necessary.”

9 Defendants in this case do not specify the total number of depositions they seek to
10 take, asking instead only for the right to depose the named plaintiffs, all their providers, and
11 a “representative sample of the other declarants.” Plaintiffs and their IHSS providers would
12 result in 32 depositions (34 if Plaintiffs’ pending motion to amend, which adds a new IHSS
13 consumer plaintiff, is granted). That number does not include Rule 30(b)(6) depositions of
14 the four union plaintiffs or the unspecified “representative sample” of other declarants.
15 Defendants do not explain how all these proposed depositions would even take place in the
16 short time remaining for fact discovery, while still allowing Plaintiffs their right to take
17 depositions.
18 C. Conclusion and Order
19 The Court finds that deposing half of the named Plaintiffs and half of their providers
20 would require 16 depositions and along with the 30(b)(6) depositions of the four unions
21 which are currently in the case would add up to a total of 20 depositions, twice the limit set
22 by the Rule. If Defendants choose initially to depose one or more of the declarants in this
23 case, instead of a named Plaintiff, they may do so.
24 Accordingly, Defendants’ request to take additional depositions is granted in part.
25 Defendants may take a total of 20 depositions, as discussed above. If this proves to be
26 insufficient, Defendants may meet and confer with Plaintiffs, and then return to the Court, to
27 make the required particularized showing why more depositions are needed.
28

09-2306 DISCOVERY ORDER

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United States District Court For the Northern District of California

1

IT IS SO ORDERED.

2 DATED: August 25, 2010

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09-2306 DISCOVERY ORDER

__________________________________ JAMES LARSON
United States Magistrate Judge Page 15 of 15

 
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(Slip Opinion)

OCTOBER TERM, 2011

1

Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES

Syllabus
DOUGLAS, DIRECTOR, CALIFORNIA DEPARTMENT OF HEALTH CARE SERVICES v. INDEPENDENT LIVING CENTER OF SOUTHERN CALIFORNIA, INC., ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
No. 09–958. Argued October 3, 2011—Decided February 22, 2012*
Medicaid is a cooperative federal-state program that provides medical care to needy individuals. To qualify for federal funds, a State must submit its Medicaid plan and any amendments to the federal agency that administers the program, the Centers for Medicare & Medicaid Services (CMS). Before approving a plan or amendments, CMS conducts a review to determine whether they comply with federal requirements. Federal law requires state plans or amendments to “assure that payments are consistent with efficiency, economy, and quality of care and are sufficient to enlist enough providers” to make Medicaid “care and services” available. 42 U. S. C. §1396a(a)(30)(A). After California enacted three statutes reducing the State’s payments to various Medicaid providers, the State submitted plan
—————— * Together with No. 09–1158, Douglas, Director, California Depart-
ment of Health Care Services v. California Pharmacists Association et al., Douglas, Director, California Department of Health Care Services v. California Hospital Association et al. (see this Court’s Rule 12.4), Douglas, Director, California Department of Health Care Services v. Independent Living Center of Southern California, Inc., et al. (see this Court’s Rule 12.4), Douglas, Director, California Department of Health Care Services v. Dominguez, By and Through her Mother and Next Friend Brown, et al. (see this Court’s Rule 12.4); and No. 10–283, Douglas, Director, California Department of Health Care Services v. Santa Rosa Memorial Hospital et al., also on certiorari to the same court.

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2

DOUGLAS v. INDEPENDENT LIVING CENTER OF

SOUTHERN CAL., INC.

Syllabus

amendments to CMS. Before the agency finished its review, Medicaid providers and beneficiaries sought, in a series of cases, to enjoin the rate reductions on the ground that they were pre-empted by federal Medicaid law. In seven decisions, the Ninth Circuit ultimately affirmed or ordered preliminary injunctions preventing the State from implementing its statutes. The court (1) held that the providers and beneficiaries could bring a Supremacy Clause action; (2) essentially accepted their claim that the State did not show that its amended plan would provide sufficient services; (3) held that the amendments thus conflicted with §1396a(a)(30)(A); and (4) held that the federal statute pre-empted the new state laws. In the meantime, agency officials disapproved the amendments, and California sought further administrative review. The cases were in this posture when the Court granted certiorari to decide whether respondents could mount a Supremacy Clause challenge. After oral argument, CMS approved several of the State’s amendments, and the State withdrew its requests for approval of the remainder.
Held: The judgments are vacated and the cases are remanded, thereby permitting the parties to argue before the Ninth Circuit in the first instance the question whether respondents may maintain Supremacy Clause actions now that CMS has approved the state statutes. Pp. 5–8. (a) CMS’ approval does not make these cases moot, but it does put them in a different posture, since the federal agency charged with administering Medicaid has now found that the rate reductions comply with federal law. That decision does not change the substantive question whether California’s statutes are consistent with federal law, but it may change the answer. It may also require respondents to seek review of CMS’ determination under the Administrative Procedure Act (APA) rather than in a Supremacy Clause action against California. The APA would likely permit respondents to obtain an authoritative judicial determination of the merits of their legal claim. And their basic challenge now presents the kind of legal question ordinarily calling for APA review. The Medicaid Act commits to a federal agency the power to administer a federal program, and the agency has exercised that authority. As CMS is comparatively expert in the statute’s subject matter, its decision carries weight. And §1396a(a)(30)(A)’s broad and general language suggests that CMS’ expertise is relevant in determining the provision’s application. Finally, to allow a Supremacy Clause action to proceed once CMS has reached a decision threatens potential inconsistency or confusion. The Ninth Circuit declined to give weight to the Federal Government’s interpretation of the federal law, but courts are ordinarily required to apply deference standards to agency decisionmaking. The

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Cite as: 565 U. S. ____ (2012)

3

Syllabus
parties suggest no reasons why such standards should not be applied here or why, now that CMS has acted, a court should reach a different result in an APA action than in a Supremacy Clause action. That would make the Supremacy Clause challenge at best redundant. Permitting it to continue would seem inefficient, for the federal agency is not a participant in the action, which will decide whether agency-approved state rates violate federal law. Pp. 5–8.
(b) Given the present posture of the cases, the Court does not address whether the Ninth Circuit properly recognized a Supremacy Clause action to enforce the federal law before the agency took final action. To decide whether these cases may proceed under the Supremacy Clause now that the agency has acted, it will be necessary on remand to consider at least the matters addressed by this Court. P. 8. No. 09–958, 572 F. 3d 644 (first judgment), 342 Fed. Appx. 306 (second judgment), No. 09–1158, 596 F. 3d 1098, 563 F. 3d 847, 374 Fed. Appx. 690, 596 F. 3d 1087, and No. 10–283, 380 Fed. Appx. 656, vacated and remanded.
BREYER, J., delivered the opinion of the Court, in which KENNEDY, GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined. ROBERTS, C. J., filed a dissenting opinion, in which SCALIA, THOMAS, and ALITO, JJ., joined.

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Cite as: 565 U. S. ____ (2012)

1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES
_________________

Nos. 09–958, 09–1158, and 10–283
_________________

TOBY DOUGLAS, DIRECTOR, CALIFORNIA DE-

PARTMENT OF HEALTH CARE SERVICES,

PETITIONER

09–958

v.

INDEPENDENT LIVING CENTER OF SOUTHERN

CALIFORNIA, INC., ET AL.

TOBY DOUGLAS, DIRECTOR, CALIFORNIA DE-

PARTMENT OF HEALTH CARE SERVICES,

PETITIONER

09–1158

v.

CALIFORNIA PHARMACISTS ASSOCIATION ET AL.

TOBY DOUGLAS, DIRECTOR, CALIFORNIA DE-

PARTMENT OF HEALTH CARE SERVICES,

PETITIONER

10–283

v.

SANTA ROSA MEMORIAL HOSPITAL ET AL.

ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
[February 22, 2012]

JUSTICE BREYER delivered the opinion of the Court.
We granted certiorari in these cases to decide whether Medicaid providers and recipients may maintain a cause of action under the Supremacy Clause to enforce a federal Medicaid law—a federal law that, in their view, conflicts

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DOUGLAS v. INDEPENDENT LIVING CENTER OF

SOUTHERN CAL., INC.

Opinion of the Court

with (and pre-empts) state Medicaid statutes that reduce
payments to providers. Since we granted certiorari, however, the relevant circumstances have changed. The federal agency in charge of administering Medicaid, the Cen-
ters for Medicare & Medicaid Services (CMS), has now approved the state statutes as consistent with the federal
law. In light of the changed circumstances, we believe that the question before us now is whether, once the agency has approved the state statutes, groups of Medicaid
providers and beneficiaries may still maintain a Supremacy Clause action asserting that the state statutes are inconsistent with the federal Medicaid law. For the rea-
sons set forth below, we vacate the Ninth Circuit’s judgments and remand these cases for proceedings consistent
with this opinion.

I A
Medicaid is a cooperative federal-state program that provides medical care to needy individuals. To qualify for federal funds, States must submit to a federal agency (CMS, a division of the Department of Health and Human Services) a state Medicaid plan that details the nature and scope of the State’s Medicaid program. It must also submit any amendments to the plan that it may make from time to time. And it must receive the agency’s approval of the plan and any amendments. Before granting approval, the agency reviews the State’s plan and amendments to determine whether they comply with the statutory and regulatory requirements governing the Medicaid program. See 42 U. S. C. §§1316(a)(1), (b), 1396a(a), (b); 42 CFR §430.10 et seq. (2010); Wilder v. Virginia Hospital Assn., 496 U. S. 498, 502 (1990). And the agency’s director has specified that the agency will not provide federal funds for any state plan amendment until the agency approves the amendment. See Letter from Timothy M. Westmoreland,

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3

Opinion of the Court
Director, Center for Medicaid & State Operations, Health Care Financing Admin., U. S. Dept. of Health and Human Servs., to State Medicaid Director (Jan. 2, 2001), online at http://www.cms.gov/SMDL/downloads/SMD010201.pdf (as visited Feb. 17, 2012, and available in Clerk of Court’s case file).
The federal statutory provision relevant here says that a State’s Medicaid plan and amendments must:
“provide such methods and procedures relating to the utilization of, and the payment for, care and services available under the plan . . . as may be necessary to safeguard against unnecessary utilization of such care and services and to assure that payments are consistent with efficiency, economy, and quality of care and are sufficient to enlist enough providers so that care and services are available under the plan at least to the extent that such care and services are available to the general population in the geographic area.” 42 U. S. C. §1396a(a)(30)(A) (emphasis added).
B
In 2008 and 2009, the California Legislature passed three statutes changing that State’s Medicaid plan. The first statute, enacted in February 2008, reduced by 10% payments that the State makes to various Medicaid providers, such as physicians, pharmacies, and clinics. See 2007–2008 Cal. Sess. Laws, 3d Extraordinary Sess. ch. 3, §§14, 15. The second statute, enacted in September 2008, replaced the 10% rate reductions with a more modest set of cuts. See 2008 Cal. Sess. Laws ch. 758, §§45, 57. And the last statute, enacted in February 2009, placed a cap on the State’s maximum contribution to wages and benefits paid by counties to providers of in-home supportive services. See 2009–2010 Cal. Sess. Laws, 3d Extraordinary Sess. ch. 13, §9.
In September and December 2008, the State submitted

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Opinion of the Court

to the federal agency a series of plan amendments de-
signed to implement most of the reductions contained in these bills. Before the agency finished reviewing the amendments, however, groups of Medicaid providers and
beneficiaries filed a series of lawsuits seeking to enjoin the rate reductions on the ground that they conflicted with,
and therefore were pre-empted by, federal Medicaid law, in particular the statutory provision that we have just set forth. They argued that California’s Medicaid plan
amendments were inconsistent with the federal provision because the State had failed to study whether the rate reductions would be consistent with the statutory factors
of efficiency, economy, quality, and access to care. In effect, they argued that California had not shown that its
Medicaid plan, as amended, would “enlist enough providers” to make Medicaid “care and services” sufficiently available. 42 U. S. C. §1396a(a)(30)(A).
The consolidated cases before us encompass five lawsuits brought by Medicaid providers and beneficiaries
against state officials. Those cases produced seven decisions of the Court of Appeals for the Ninth Circuit. See 572 F. 3d 644 (2009); 342 Fed. Appx. 306 (2009); 596 F. 3d
1098 (2010); 563 F. 3d 847 (2009); 374 Fed. Appx. 690 (2010); 596 F. 3d 1087 (2010); and 380 Fed. Appx. 656
(2010). The decisions ultimately affirmed or ordered preliminary injunctions that prevented the State from implementing its statutes. They (1) held that the Medi-
caid providers and beneficiaries could directly bring an action based on the Supremacy Clause; (2) essentially
accepted the claim that the State had not demonstrated that its Medicaid plan, as amended, would provide sufficient services; (3) held that the amendments consequently
conflicted with the statutory provision we have quoted; and (4) held that, given the Constitution’s Supremacy
Clause, the federal statute must prevail. That is to say, the federal statute pre-empted the State’s new laws.

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5

Opinion of the Court
In the meantime, the federal agency was also reviewing the same state statutes to determine whether they satisfied the same federal statutory conditions. In November 2010, agency officials concluded that they did not satisfy those conditions, and the officials disapproved the amendments. California then exercised its right to further administrative review within the agency. The cases were in this posture when we granted certiorari to decide whether respondents could mount a Supremacy Clause challenge to the state statutes and obtain a court injunction preventing California from implementing its statutes.
About a month after we heard oral argument, the federal agency reversed course and approved several of California’s statutory amendments to its plan. See Letter from Donald M. Berwick, Administrator, CMS, to Toby Douglas, Director, Cal. Dept. of Health Care Servs. (Oct. 27, 2011); Letter from Larry Reed, Director, Division of Pharmacy, Disabled and Elderly Health Programs Group, CMS, to Toby Douglas, Director, Cal. Dept. of Health Care Servs. (Oct. 27, 2011). In doing so, the agency also approved a limited retroactive implementation of some of the amendments’ rate reductions. The State, in turn, withdrew its requests for approval of the remaining amendments, in effect agreeing (with one exception) that it would not seek to implement any unapproved reduction. See Letter from Michael E. Kilpatrick, Assistant Chief Counsel, Cal. Dept. of Health Care Servs., to Benjamin R. Cohen, Director, Office of Hearings, CMS (Oct. 27, 2011). (The exception consists of one statute for which California has submitted no amendment and which, by its own terms, cannot take effect unless and until this litigation is complete, see 2010 Cal. Sess. Laws ch. 725, §25.)
II
All parties agree that the agency’s approval of the enjoined rate reductions does not make these cases moot.

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DOUGLAS v. INDEPENDENT LIVING CENTER OF

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Opinion of the Court

For one thing, the providers and beneficiaries continue to
believe that the reductions violate the federal provision, the agency’s view to the contrary notwithstanding. For another, federal-court injunctions remain in place, forbid-
ding California to implement the agency-approved rate reductions. And, in light of the agency’s action, California
may well ask the lower courts to set those injunctions aside.
While the cases are not moot, they are now in a different
posture. The federal agency charged with administering the Medicaid program has determined that the challenged rate reductions comply with federal law. That agency
decision does not change the underlying substantive question, namely whether California’s statutes are consistent
with a specific federal statutory provision (requiring that reimbursement rates be “sufficient to enlist enough providers”). But it may change the answer. And it may
require respondents now to proceed by seeking review of the agency determination under the Administrative Pro-
cedure Act (APA), 5 U. S. C. §701 et seq., rather than in an action against California under the Supremacy Clause.
For one thing, the APA would likely permit respondents to obtain an authoritative judicial determination of the merits of their legal claim. The Act provides for judicial
review of final agency action. §704. It permits any person adversely affected or aggrieved by agency action to obtain judicial review of the lawfulness of that action. §702. And
it requires a reviewing court to set aside agency action found to be “arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with law.” §706(2)(A). For another thing, respondents’ basic challenge now
presents the kind of legal question that ordinarily calls for
APA review. The Medicaid Act commits to the federal agency the power to administer a federal program. And
here the agency has acted under this grant of authority. That decision carries weight. After all, the agency is

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7

Opinion of the Court
comparatively expert in the statute’s subject matter. And the language of the particular provision at issue here is broad and general, suggesting that the agency’s expertise is relevant in determining its application.
Finally, to allow a Supremacy Clause action to proceed once the agency has reached a decision threatens potential inconsistency or confusion. In these cases, for example, the Ninth Circuit, in sustaining respondents’ challenges, declined to give weight to the Federal Government’s interpretation of the federal statutory language. (That view was expressed in an amicus curiae brief that the United States submitted in prior litigation.) See Independent Living Center of Southern Cal., Inc. v. Maxwell-Jolly, 572 F. 3d 644, 654 (CA9 2009) (referring to the United States’ certiorari-stage invitation brief in Belshe v. Orthopaedic Hospital, 522 U. S. 1044 (1998) (denying writ of certiorari)). And the District Court decisions that underlie injunctions that now forbid California to implement its laws may rest upon similar analysis.
But ordinarily review of agency action requires courts to apply certain standards of deference to agency decisionmaking. See National Cable & Telecommunications Assn. v. Brand X Internet Services, 545 U. S. 967 (2005) (describing deference reviewing courts must show); Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984) (same). And the parties have not suggested reasons why courts should not now (in the changed posture of these cases) apply those ordinary standards of deference.
Nor have the parties suggested reasons why, once the agency has taken final action, a court should reach a different result in a case like this one, depending upon whether the case proceeds in a Supremacy Clause action rather than under the APA for review of an agency decision. Indeed, to permit a difference in result here would subject the States to conflicting interpretations of federal

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Opinion of the Court

law by several different courts (and the agency), thereby
threatening to defeat the uniformity that Congress intended by centralizing administration of the federal program in the agency and to make superfluous or to under-
mine traditional APA review. Cf. Astra USA, Inc. v. Santa Clara County, 563 U. S. ___, ___ (2011) (slip op., at 2)
(noting that the treatment of lawsuits that are “in substance one and the same” “must be the same, ‘[n]o matter the clothing in which [plaintiffs] dress their claims’ ” (quot-
ing Tenet v. Doe, 544 U. S. 1, 8 (2005)). If the two kinds of actions should reach the same result, the Supremacy
Clause challenge is at best redundant. And to permit the continuation of the action in that form would seem to be
inefficient, for the agency is not a participant in the pending litigation below, litigation that will decide whether the agency-approved state rates violate the federal statute.

III
In the present posture of these cases, we do not address whether the Ninth Circuit properly recognized a Supremacy Clause action to enforce this federal statute before the agency took final action. To decide whether these cases may proceed directly under the Supremacy Clause now that the agency has acted, it will be necessary to take account, in light of the proceedings that have already taken place, of at least the matters we have set forth above. It must be recognized, furthermore, that the parties have not fully argued this question. Thus, it may be that not all of the considerations that may bear upon the proper resolution of the issue have been presented in the briefs to this Court or in the arguments addressed to and considered by the Court of Appeals. Given the complexity of these cases, rather than ordering reargument, we vacate the Ninth Circuit’s judgments and remand the cases, thereby permitting the parties to argue the matter before that Circuit in the first instance.
It is so ordered.

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1

ROBERTS, C. J., dissenting

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES
_________________

Nos. 09–958, 09–1158, and 10–283
_________________

TOBY DOUGLAS, DIRECTOR, CALIFORNIA DE-

PARTMENT OF HEALTH CARE SERVICES,

PETITIONER

09–958

v.

INDEPENDENT LIVING CENTER OF SOUTHERN

CALIFORNIA, INC., ET AL.

TOBY DOUGLAS, DIRECTOR, CALIFORNIA DE-

PARTMENT OF HEALTH CARE SERVICES,

PETITIONER

09–1158

v.

CALIFORNIA PHARMACISTS ASSOCIATION ET AL.

TOBY DOUGLAS, DIRECTOR, CALIFORNIA DE-

PARTMENT OF HEALTH CARE SERVICES,

PETITIONER

10–283

v.

SANTA ROSA MEMORIAL HOSPITAL ET AL.

ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
[February 22, 2012]

CHIEF JUSTICE ROBERTS, with whom JUSTICE SCALIA, JUSTICE THOMAS, and JUSTICE ALITO join, dissenting.
The Medicaid Act established a collaborative federalstate program to assist the poor, elderly, and disabled in obtaining medical care. The Act is Spending Clause legis-

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ROBERTS, C. J., dissenting

lation; in exchange for federal funds a State agrees to
abide by specified rules in implementing the program. One of those rules is set forth in §30(A) of the Act, which requires States to meet particular criteria in establishing
Medicaid reimbursement rates for those providing services under the Act. 42 U. S. C. §1396a(a)(30)(A). In 2008 and
2009, California enacted legislation reducing the rates at which it would compensate some providers. Certain providers and individuals receiving Medicaid benefits thought
the new reimbursement rates did not comply with the criteria set forth in §30(A). They sued the State to prevent the new rates from going into effect.
But those plaintiffs faced a significant problem: Nothing in the Medicaid Act allows providers or beneficiaries
(or anyone else, for that matter) to sue to enforce §30(A). The Act instead vests responsibility for enforcement with a federal agency, the Centers for Medicare & Medicaid
Services (CMS). See, e.g., 42 U. S. C. §1316(a)(1). That is settled law in the Ninth Circuit. See Sanchez v. Johnson,
416 F. 3d 1051, 1058–1062 (2005) (“[T]he flexible, administrative standards embodied in [§30(A)] do not reflect a
Congressional intent to provide a private remedy for their violation”). And it is the law in virtually every other circuit as well. See, e.g., Long Term Care Pharmacy Alli-
ance v. Ferguson, 362 F. 3d 50, 57–59 (CA1 2004) (holding that it would be inconsistent with this Court’s precedent to
find that §30(A) creates rights enforceable by private parties). The respondents have never argued the contrary.
Thus, as this case comes to us, the federal rule is that Medicaid reimbursement rates must meet certain criteria, but private parties have no statutory right to sue to en-
force those requirements in court. The providers and beneficiaries sought to overcome that
difficulty by arguing that they could proceed against the State directly under the Supremacy Clause of the Constitution, even if they could not do so under the Act. They

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3

ROBERTS, C. J., dissenting
contended that the new state reimbursement rates were inconsistent with the requirements of §30(A). The Supremacy Clause provides that a federal statute such as §30(A) preempts contrary state law. Therefore, the providers and beneficiaries claimed, they could sue to enforce the Supremacy Clause, which requires striking down the state law and giving effect to §30(A). The Ninth Circuit agreed with this argument and blocked the new state reimbursement rates.
During briefing and argument in this case, the parties have debated broad questions, such as whether and when constitutional provisions as a general matter are directly enforceable. It is not necessary to consider these larger issues. It is not even necessary to decide whether the Supremacy Clause can ever provide a private cause of action. The question presented in the certiorari petitions is narrow: “Whether Medicaid recipients and providers may maintain a cause of action under the Supremacy Clause to enforce [§30(A)] by asserting that the provision preempts a state law reducing reimbursement rates.” To decide this case, it is enough to conclude that the Supremacy Clause does not provide a cause of action to enforce the requirements of §30(A) when Congress, in establishing those requirements, elected not to provide such a cause of action in the statute itself.
The Supremacy Clause operates differently than other constitutional provisions. For example, if Congress says in a law that certain provisions do not give rise to a taking without just compensation, that obviously does not resolve a claim under the Takings Clause that they do. The Supremacy Clause, on the other hand, is “not a source of any federal rights.” Chapman v. Houston Welfare Rights Organization, 441 U. S. 600, 613 (1979); accord, Dennis v. Higgins, 498 U. S. 439, 450 (1991) (contrasting, in this regard, the Supremacy Clause and the Commerce Clause). The purpose of the Supremacy Clause is instead to ensure

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4

DOUGLAS v. INDEPENDENT LIVING CENTER OF

SOUTHERN CAL., INC.

ROBERTS, C. J., dissenting

that, in a conflict with state law, whatever Congress says
goes. See The Federalist, No. 33, p. 205 (C. Rossiter ed. 1961) (A. Hamilton) (the Supremacy Clause “only declares a truth which flows immediately and necessarily from the
institution of a federal government”). Thus, if Congress does not intend for a statute to supply
a cause of action for its enforcement, it makes no sense to claim that the Supremacy Clause itself must provide one. Saying that there is a private right of action under the
Supremacy Clause would substantively change the federal rule established by Congress in the Medicaid Act. That is not a proper role for the Supremacy Clause, which simply
ensures that the rule established by Congress controls. Indeed, to say that there is a federal statutory right
enforceable under the Supremacy Clause, when there is no such right under the pertinent statute itself, would effect a complete end-run around this Court’s implied right of
action and 42 U. S. C. §1983 jurisprudence. We have emphasized that “where the text and structure of a statute
provide no indication that Congress intends to create new individual rights, there is no basis for a private suit, whether under §1983 or under an implied right of action.”
Gonzaga Univ. v. Doe, 536 U. S. 273, 286 (2002). This body of law would serve no purpose if a plaintiff could
overcome the absence of a statutory right of action simply by invoking a right of action under the Supremacy Clause
to the exact same effect. Cf. Astra USA, Inc. v. Santa Clara County, 563 U. S. ___, ___ (2011) (slip op., at 7)
(rejecting contention that contract incorporating statutory terms could be enforced in private action when statute itself could not be; “[t]he absence of a private right to
enforce the statutory ceiling price obligations would be rendered meaningless if [contracting] entities could over-
come that obstacle by suing to enforce the contract’s ceiling price obligations instead”).
The providers and beneficiaries argue, however, that the

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5

ROBERTS, C. J., dissenting
traditional exercise of equity jurisdiction supports finding a direct cause of action in the Supremacy Clause. This contention fails for the same reason. It is a longstanding maxim that “[e]quity follows the law.” 1 J. Pomeroy, Treatise on Equity Jurisprudence §425 (3d ed. 1905). A court of equity may not “create a remedy in violation of law, or even without the authority of law.” Rees v. Watertown, 19 Wall. 107, 122 (1874). Here the law established by Congress is that there is no remedy available to private parties to enforce the federal rules against the State. For a court to reach a contrary conclusion under its general equitable powers would raise the most serious concerns regarding both the separation of powers (Congress, not the Judiciary, decides whether there is a private right of action to enforce a federal statute) and federalism (the States under the Spending Clause agree only to conditions clearly specified by Congress, not any implied on an ad hoc basis by the courts).
This is not to say that federal courts lack equitable powers to enforce the supremacy of federal law when such action gives effect to the federal rule, rather than contravening it. The providers and beneficiaries rely heavily on cases of this kind, most prominently Ex parte Young, 209 U. S. 123 (1908). Those cases, however, present quite different questions involving “the pre-emptive assertion in equity of a defense that would otherwise have been available in the State’s enforcement proceedings at law.” Virginia Office for Protection and Advocacy v. Stewart, 563 U. S. ___, ___ (2011) (KENNEDY, J., concurring) (slip op., at 1). Nothing of that sort is at issue here; the respondents are not subject to or threatened with any enforcement proceeding like the one in Ex parte Young. They simply seek a private cause of action Congress chose not to provide.

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6

DOUGLAS v. INDEPENDENT LIVING CENTER OF

SOUTHERN CAL., INC.

ROBERTS, C. J., dissenting

* * *
The Court decides not to decide the question on which we granted certiorari but instead to send the cases back to the Court of Appeals, because of the recent action by CMS approving California’s new reimbursement rates. But the CMS approvals have no impact on the question before this Court. If, as I believe, there is no private right of action under the Supremacy Clause to enforce §30(A), that is the end of the matter. If, on the other hand, the Court believes that there is such a cause of action, but that CMS’s recent rate approvals may have an effect on that action going forward, then the Court should say just that and then remand to the Ninth Circuit for consideration of the effect of the agency approvals.
I am not sure what a remand without answering the preliminary question is meant to accomplish. The majority claims that the agency’s recent action “may change the [lower courts’] answer” to the question whether the particular state rates violate §30(A). Ante, at 6. But that factspecific question is not the one before us; we chose not to grant certiorari on the question whether California’s rates complied with §30(A), limiting our grant to the cause of action question. 562 U. S. ___ (2011).
The majority also asserts that the lower courts must “decide whether these cases may proceed directly under the Supremacy Clause now that the agency has acted.” Ante, at 8. The majority contends that the parties have not “fully argued this question.” Ibid. But the agency proceedings that ultimately led to the CMS approvals were well underway when this Court granted certiorari. The parties debated the import of the parallel administrative proceedings in their initial briefs and at oral argument. See, e.g., Brief for Petitioner 28–29 (“Private lawsuits . . . interfere with . . . CMS’s own enforcement procedures,” as is “vividly demonstrated in the present cases”); Brief for Respondents Santa Rosa Memorial Hos-

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Cite as: 565 U. S. ____ (2012)

7

ROBERTS, C. J., dissenting
pital et al. in No.10–283, p. 46 (“This case vividly illustrates why the [administrative] enforcement scheme . . . cannot substitute for a constitutional preemption claim”). No party—nor the United States as amicus curiae— argued that any action by CMS would affect the answer to the question we granted certiorari to review. See, e.g., Tr. of Oral Arg. 53–54 (counsel for respondents) (arguing that, “to be sure,” there would be a cause of action under the Supremacy Clause even after the agency took action on the challenged rates).
Once the CMS approvals were issued, this Court directed the parties to file supplemental briefs to address “the effect, if any, of the [CMS approvals] on the proper disposition of this case.” 565 U. S. ___ (2011). Again, no one argued on supplemental briefing that the CMS approvals affected the answer to the question before this Court. See, e.g., Supp. Letter Brief for Certain Respondents 6 (“The CMS findings do not directly resolve whether the Constitution supports a right of action”); Supp. Letter Brief for Petitioner 6 (agreeing that “if a preemption cause of action may be stated here against the State, [CMS] approval may affect its merits but not its existence”). It seems odd, then, to claim that the parties have not had the opportunity to fully address the impact of the agency action on the question that we granted certiorari to review: whether the Ninth Circuit correctly recognized a private cause of action under the Supremacy Clause to enforce §30(A).
So what is the Court of Appeals to do on remand? It could change its view and decide that there is no cause of action directly under the Supremacy Clause to enforce §30(A). The majority itself provides a compelling list of reasons for such a result: “The Medicaid Act commits to the federal agency the power to administer a federal program”; “the agency is comparatively expert in the statute’s subject matter”; “the language of the particular provision

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8

DOUGLAS v. INDEPENDENT LIVING CENTER OF

SOUTHERN CAL., INC.

ROBERTS, C. J., dissenting

at issue here is broad and general, suggesting that the
agency’s expertise is relevant”; and APA review would provide “an authoritative judicial determination.” Ante, at 6–7. Allowing for both Supremacy Clause actions and
agency enforcement “threatens potential inconsistency or confusion,” and imperils “the uniformity that Congress
intended by centralizing administration of the federal program in the agency.” Ante, at 7–8; see Gonzaga, 536 U. S., at 291–293 (BREYER, J., concurring in judgment)
(explaining that Congress often means to preclude a private right of action in statutes where it employs an ad-
ministrative enforcement scheme that achieves “expertise, uniformity, widespread consultation, and resulting administrative guidance,” while “avoid[ing] the comparative risk
of inconsistent interpretations and misincentives that can arise out of an occasional inappropriate application of the
statute in a private action for damages”). The majority acknowledges, in light of all this, that the
Supremacy Clause challenge appears “at best redundant,”
and that “continuation of the action in that form would seem to be inefficient.” Ante, at 8. Still, according to the
majority, the Court of Appeals on remand could determine that the Supremacy Clause action may be brought but then must abate “now that the agency has acted,” ibid.—
as everyone knew the agency would. A Court concerned with “inefficien[cy]” should not find that result very pal-
atable, and the majority cites no precedent for a cause of action that fades away once a federal agency has acted.
Such a scenario would also create a bizarre rush to the courthouse, as litigants seek to file and have their Supremacy Clause causes of action decided before the agency
has time to arrive at final agency action reviewable in court.
Or perhaps the suits should continue in a different “form,” by which I understand the Court to suggest that they should morph into APA actions. The APA judicial

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Cite as: 565 U. S. ____ (2012)

9

ROBERTS, C. J., dissenting
review provisions, however, seem to stand in the way of such a transformation. To convert the litigation into an APA suit, the current defendant (the State) would need to be dismissed and the agency (which is not currently a party at all) would have to be sued in its stead. 5 U. S. C. §§701–706. Given that APA actions also feature—among other things—different standards of review, different records, and different potential remedies, it is difficult to see what would be left of the original Supremacy Clause suit. Or, again, why one should have been permitted in the first place, when agency review was provided by statute, and the parties were able to and did participate fully in that process.
I would dispel all these difficulties by simply holding what the logic of the majority’s own opinion suggests: When Congress did not intend to provide a private right of action to enforce a statute enacted under the Spending Clause, the Supremacy Clause does not supply one of its own force. The Ninth Circuit’s decisions to the contrary should be reversed.

 
 1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

9

SAN FRANCISCO/OAKLAND DIVISION

10

LYDIA DOMINGUEZ, et al.,

) Case No.: C 09-02306 CW

11

)

Plaintiffs,

)

12

) [PROPOSED] ORDER GRANTING

v.

) PRELIMINARY APPROVAL OF CLASS

13

) SETTLEMENT AGREEMENT,

EDMUND G. BROWN, et al.,

) DIRECTING NOTICE TO THE CLASS,

14

) AMENDING THE CLASS

) CERTIFICATION ORDER, DISMISSING

15

) DEFENDANTS BROWN AND CHIANG

) AND SETTING A SCHEDULEAND

16

) FAIRNESS HEARING

)

17

) Date:

April 4, 2013

) Time:

2:00 pm

18

) Courtroom: 2

)

19

)

_

20

Plaintiffs PATSY MILLER, ALEX BROWN, by and through his mother and next friend

21

Lisa Brown, DONNA BROWN, CHLOE LIPTON, by and through her conservator and next

22

friend Julie Weissman-Steinbaugh, HERBERT M. MEYER, LESLIE GORDON, CHARLENE

23

AYERS, WILLER BEATRICE SHEPPARD, ANDY MARTINEZ, and CAROLYN STWEART

24

(collectively “Named Plaintiffs”) have filed, and all parties support, a Motion for Preliminary

25

Approval of Class Settlement Agreement, Directing Notice to the Class, Amending the Class

26

Certification Order, Dismissing Defendants Brown and Chiang, and Setting a Schedule and

27

28
1
[Proposed] Order Granting Motion for Preliminary Approval, Case No. C 09-02306 CW

1 Fairness Hearing (hereinafter “Preliminary Approval Motion”). The Court has considered

2 Plaintiffs’ moving papers including the proposed Settlement Agreement, Proposed Notice to Class

3 Members, Proposed Notice Plan, and supporting declarations and exhibits, as well as the

4 arguments of counsel presented at a hearing on Plaintiffs’ Preliminary Approval Motion held on

5 Thursday, April 4, 2013. Classes and subclasses in this case have previously been certified under

6 Federal Rule of Civil Procedure 23(b)(2).

7

Based on review of these papers, the arguments of counsel, and this Court’s familiarity

8 with the case, the Court hereby finds and concludes that:

9

1. The Settlement Agreement is the result of serious, informed, non-collusive negotiations

10

between the parties, has no obvious deficiencies, does not improperly grant preferential

11

treatment to class representatives or segments of the class, and falls within the range of

12

possible settlement approval such that notice to the Class is appropriate.

13

2. The Proposed Class Notice allows class members a full and fair opportunity to consider

14

the proposed Settlement Agreement and it fairly, plainly, accurately, and reasonably

15

informs Class Members of the nature of this litigation, the identity of Class Counsel,

16

the essential terms of the Settlement Agreement, the Court’s procedures for final

17

approval of the Settlement Agreement, class members’ right to comment or object if

18

they desire, and how to obtain additional information regarding this litigation and the

19

Settlement Agreement. The Proposed Class Notice thus satisfies the requirements of

20

Federal Rule of Civil Procedure 23 and due process.

21

3. The Proposed Notice Plan is a reasonable method to inform class members of the

22

Settlement and satisfies the notice requirements of Federal Rule of Civil Procedure 23

23

as well as all other applicable legal and due process requirements.

24

4. After this Court certified the Plaintiff Class in this case, the counties of Los Angeles,

25

Madera, Mariposa, San Joaquin, and Yuba agreed to raise the wages of IHSS providers

26

above $9.50 per hour and so IHSS consumers in those counties are properly made

27

members of the Plaintiff Class. The redefined Class meets the requirements of Federal

28
2
[Proposed] Order Granting Motion for Preliminary Approval, Case No. C 09-02306 CW

1

Rules of Civil Procedure 23(a) and (b)(2) for the reasons set forth in the Order

2

Granting Plaintiffs’ Motion for Class Certification (Dkt. #286).

3

IT IS THEREFORE HEREBY ORDERED that:

4

1. The Settlement Agreement is preliminarily approved, subject to notice to the Class and

5

final review and approval at the Fairness Hearing as provided for below.

6

2. The form of the Proposed Class Notice is approved.

7

3. The manner of distributing the Proposed Class Notice, as set forth in the Proposed

8

Notice Plan, is approved.

9

4. The parties shall provide class members with the Proposed Class Notice in the manner

10

specified in the Proposed Notice Plan.

11

5. The parties shall adhere to the following time schedule:

12

(a) Notice to the class shall be distributed and posted in the manner specified in the

13

Settlement Agreement no later than April 5, 2013.

14

(b) Class members may file objections under the procedures specified in the

15

Settlement Agreement and Preliminary Approval Motion, so long as the

16

objections are postmarked or otherwise received by May 3, 2013. Class

17

Counsel will record the date of receipt of each objection or comment, and will

18

file all objections and comments with the Court prior to the Fairness Hearing.

19

(c) By May 10, 2013, Plaintiffs shall file a Motion for Final Approval of Class

20

Settlement and any party that elects to do so shall file a response to objections.

21

(d) The Court shall conduct a Fairness Hearing on May 23, 2013 at 2:00 p.m. for

22

the purpose of adjudging final approval of the Settlement Agreement.

23

6. Plaintiffs’ request to dismiss Defendants Edmund G. Brown and John Chiang is

24

granted.

25

7. This Court’s order granting Plaintiffs’ motion for class certification (Dkt. #286) is

26

hereby amended to modify the class definition for the First, Second, Third and Fourth

27

Claims for Relief as follows:

28
3
[Proposed] Order Granting Motion for Preliminary Approval, Case No. C 09-02306 CW

1

All In-Home Supportive Services consumers residing in Alameda, Calaveras, Contra

2

Costa, Fresno, Los Angeles, Madera, Marin, Mariposa, Mendocino, Monterey, Napa,

3

Placer, Riverside, Sacramento, San Benito, San Francisco, San Joaquin, San Luis

4

Obispo, San Mateo, Santa Barbara, Santa Clara, Santa Cruz, Solano, Sonoma, Yolo

5

and Yuba counties.

6

IT IS SO ORDERED:

7

8 DATED: April _4_, 2013 9
10

______________________________________ The Honorable Claudia Wilken United States District Judge

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28
4
[Proposed] Order Granting Motion for Preliminary Approval, Case No. C 09-02306 CW

 
 1

2

3

4

5 IN THE UNITED STATES DISTRICT COURT
6

7

FOR THE NORTHERN DISTRICT OF CALIFORNIA

United States District Court For the Northern District of California

8

9 LYDIA DOMINGUEZ, et al.,

10

Plaintiffs,

11

v.

12 ARNOLD SCHWARZENEGGER, et al.,

13

Defendants.

14

No. C 09-02306 CW

ORDER GRANTING

PLAINTIFFS’

APPLICATION FOR A

TEMPORARY

RESTRAINING ORDER

AND ORDER TO SHOW

CAUSE WHY

PRELIMINARY

/

INJUNCTION SHOULD

NOT ISSUE

15 Plaintiffs apply for a temporary restraining order and order
16 to show cause why a preliminary injunction should not issue to
17 prohibit Defendants from implementing an In Home Supportive
18 Services (IHSS) rate reduction in Fresno County from $10.25 to
19 $8.00 in hourly wages, and from $0.85 to $0.60 in hourly benefit
20 contributions. State Defendants and Fresno County Defendants both
21 oppose Plaintiffs’ application for a temporary restraining order
22 and order to show cause. The matter was heard on June 29, 2010.
23 Having considered all of the parties’ papers and oral argument on
24 the motions, the Court concludes that Plaintiffs have established a
25 likelihood of success on their claim that State Defendants have
26 violated the procedural requirements of the Medicaid Act. The
27 Court also concludes that Plaintiffs will suffer irreparable injury
28

United States District Court For the Northern District of California

1 in the absence of temporary relief. The balance of equities is in

2 Plaintiffs’ favor and a temporary restraining order is in the

3 public interest. Accordingly, the Court grants Plaintiffs’

4 application for a temporary restraining order and orders Defendants

5 to show cause why a preliminary injunction should not issue.

6

BACKGROUND

7

Over thirty years ago, California established the IHSS program

8 to provide assistance with the tasks of daily living to low-income

9 elderly and disabled persons “who cannot safely remain in their

10 homes or abodes of their own choosing unless these services are

11 provided.” Cal. Welf. & Inst. Code § 12300(a). IHSS providers

12 give services such as assistance with bathing, dressing, cooking,

13 feeding, bowel and bladder care, self-administration of medication

14 and cleaning. Id. § 12300(b), (c). Over 360,000 IHSS providers

15 serve over 440,000 individuals in California. As of May 31, 2010,

16 10,116 IHSS providers serve 12,028 individuals in Fresno. Katz

17 Decl., Ex. 1. Seventy-two percent of providers in Fresno are

18 family members of IHSS recipients. Id.

19

IHSS is administered by the State’s counties. Fifty-six of

20 California’s fifty-eight counties have established either a public

21 authority (PA) or a non-profit consortium (NPC) to deliver IHSS

22 services. Each of these fifty-six counties has created and

23 maintains a registry from which service providers can be drawn. As

24 of June 1, 2010, there were 361 persons in the Fresno registry, who

25 are currently seeking employment as an IHSS provider. Katz Decl.

26 ¶ 4. These PAs and NPCs are considered employers of IHSS providers

27 for some purposes, including collective bargaining agreements

28 pertaining to providers’ wages and benefits; however, individual

2

United States District Court For the Northern District of California

1 consumers hire, fire and supervise their own IHSS providers. Id.

2 § 12301.6(c)(1).

3

Each county establishes the providers’ wages and benefits.

4 Thus, the rates paid to IHSS providers vary by county. Because

5 most IHSS consumers participate in California’s Medicaid program,

6 the federal government pays for about sixty-two percent of the IHSS

7 program’s costs.1 See 42 U.S.C. § 1396d(b). The State pays sixty-

8 five percent and the county pays thirty-five percent of the

9 remaining thirty-eight percent of the program’s costs. Cal. Welf.

10 & Inst. Code § 12306. The State’s contribution, however, is

11 subject to a statutory cap. Currently, the maximum state

12 contribution is sixty-five percent of the non-federal share of a

13 wage and benefit package of $12.10 per hour. Id. at § 12306.1(c)-

14 (d).

15

Wages and benefits are determined through the collective

16 bargaining process at the county level. Once these wages and

17 benefits are decided, they must be submitted to the California

18 Department of Health Care Services to ensure that they comply with

19 all applicable state and federal laws. Id. § 12306.1(a)-(b).

20

In response to California’s unprecedented budget crisis, on

21 February 20, 2009, the Governor signed into law California Welfare

22 and Institutions Code § 12306.1(d)(6). Scheduled to take effect

23 July 1, 2009, the law would have reduced the State’s maximum

24 contribution in wages and benefits from sixty-five percent of the

25 non-federal share of an hourly rate of $12.10 to sixty-five percent

26 1Before the passage of the American Recovery and Reinvestment
27 Act of 2009, the federal government contributed fifty percent of the program’s costs. Dominguez v. Schwarzenegger, 595 F.3d 1087,
28 1091 n.2 (9th Cir. 2010).

3

United States District Court For the Northern District of California

1 of the non-federal share of an hourly rate of $10.10.

2

On June 4, 2009, Plaintiffs filed this class action complaint

3 and moved for entry of a preliminary injunction prohibiting State

4 Defendants from implementing section 12306.1(d)(6) pending a final

5 decision on the merits. On June 26, 2009, the Court granted

6 Plaintiffs’ motion and found that they had demonstrated a strong

7 likelihood of success on their first cause of action, that State

8 Defendants had violated the federal Medicaid Act by failing to

9 consider the factors set forth in 42 U.S.C. § 1396a(a)(30)(A)

10 (Section 30(A)) before enacting section 12306.1(d)(6). The Court

11 also concluded that, absent immediate injunctive relief, both IHSS

12 consumers and providers would suffer irreparable harm as a result

13 of the wage reductions caused by the implementation of section

14 12306.1(d)(6).

15

Thereafter, Fresno County proceeded to reduce IHSS provider

16 wages for reasons other than section 12306.1(d)(6). Plaintiffs’

17 instant application for a temporary restraining order concerns this

18 attempted reduction.

19

The memorandum of understanding which set Fresno’s IHSS

20 providers’ wages and benefits at a combined rate of $11.10 expired

21 on September 30, 2009. After months of negotiations between the

22 Fresno IHSS PA and the Service Employees International Union,

23 California State Council (SEIU), the parties reached an impasse.

24 In mid-April, 2010, Fresno informed the union that it intended to

25 reduce IHSS wages to $8.00 per hour (the state minimum wage, Cal.

26 Labor Code § 1182.12) and benefits to $0.60 per hour, effective

27 July 1, 2010. On May, 25, 2010, the Fresno County Board of

28 Supervisors approved the rate reduction. The following day, Fresno

4

United States District Court For the Northern District of California

1 submitted its rate change request to the California Department of

2 Social Services and the Department of Health Care Services for

3 approval. On June 24, the State approved Fresno’s rate decrease.

4 Romero Decl., Ex. E.2 The State admits that it did not perform any

5 study assessing the impact of the rate reduction on IHSS consumers

6 or providers before approving the rate request.

7

Plaintiffs claim that the twenty percent rate reduction will

8 severely affect IHSS providers. Many IHSS providers will have to

9 seek other employment, and many of those that remain in their job

10 will no longer be able to pay for basic needs such as food, health

11 care and housing. Howes Decl. ¶ 88; Aguilar Decl. ¶ 4; Bailey

12 Decl. ¶ 6; Boushele Decl. ¶ 6; M. Garcia Decl. ¶ 5; Jones Decl.

13 ¶ 65; Moreno Decl. ¶ 7; Thao Decl. ¶ 9; Muniz Decl. ¶ 4; Ward Decl.

14 ¶¶ 4-5; Wright Decl. ¶ 5; Maiden Decl. ¶ 4; Singh Decl. ¶ 4. Many

15 of these providers are family members of IHSS consumers and are

16 responsible for providing housing, food, medication, and other

17 necessities for their elderly or disabled relative. Plaintiffs

18 assert, therefore, that both the providers and IHSS consumers are

19 likely to suffer serious deprivations. Brown Supp. Decl. ¶ 9;

20 Cendejas Decl. ¶ 4; Everhardt Decl. ¶ 4; Leon Decl. ¶ 5; Martinez

21 Decl. ¶ 6; Perez Decl. ¶ 5; Valdez Decl. ¶ 4.

22

Plaintiffs also claim that the rate reduction will force many

23 IHSS consumers into difficult, if not untenable, positions. The

24 IHSS consumers who lose their providers will either have to find

25 another provider, attempt to live in their homes without IHSS

26 2Plaintiffs object to the Declaration of Rolonda Moen
27 submitted in support of State Defendants. The objection is overruled as moot because the Court did not rely on any aspect of
28 the declaration to which Plaintiffs objected.

5

United States District Court For the Northern District of California

1 services or enter institutional care. The individuals who can find

2 new providers at the lower wage will be harmed by the loss of

3 continuity of care and disruption of relationships that often take

4 months or years to build. Lee Decl. ¶ 5; Hanlon Decl. ¶ 6; Hopkins

5 Decl. ¶ 6; Moore Decl. ¶ 6; Steward Decl. ¶ 7. Even before the

6 rate reduction, IHSS recipients have reported extreme difficulty in

7 finding adequate providers. For example, at least one recipient

8 spent weeks in a nursing home until she could secure a provider.

9 See eg., Hopkins Decl. ¶ 6.

10

Plaintiffs also assert that some consumers will be forced to

11 enter nursing facilities or other residential institutions because

12 of their inability to remain in their homes without the help of

13 IHSS providers. Howes Decl. ¶¶ 4, 76-84; Buckley Decl. ¶ 6; Jones

14 Decl. ¶ 8; R. Garcia Decl. ¶ 5; Hopkins Decl. ¶¶ 6-7; Moreno Decl.

15 ¶ 8; Bailey Decl. ¶ 8; Miller Supp. Decl. ¶ 6; Moore Decl. ¶ 6;

16 Gilchrist Decl. ¶ 6; Schnelle Decl. (Dkt. 45) ¶ 5; Altman Decl.

17 (Dckt. 6) ¶ 6. Plaintiffs claim that the consequences of

18 institutionalization, which include loss of independence and

19 reduced quality of care, would be devastating for individuals who

20 are currently able to live moderately independent lives in their

21 homes. Miller Supp. Decl. ¶ 5; Wilkins Supp. Decl. ¶ 6; R. Garcia

22 Decl. ¶ 5; Gilchrist Decl. ¶ 7; Hanlon Decl. ¶ 7; Hopkins Decl.

23 ¶ 7; Vang Decl. ¶ 7; Lee Decl. ¶ 7; Moore Decl. ¶ 7.

24

Lastly, Plaintiffs assert that the wage decrease will also

25 cause the State to incur millions of dollars in increased

26 institutionalization costs, as well as to lose significant tax

27 revenues and incur other Medi-Cal expenses. Howes Decl. ¶¶ 9-10;

28 88-89 & nn.2-3; see also LaPlante Decl. (Dkt. 28) ¶ 8; Altman Decl.

6

United States District Court For the Northern District of California

1 (Dkt. 6) ¶ 6.

2

Fresno County states that it is in dire financial straights

3 and that it cannot afford to continue to pay IHSS providers wages

4 and benefits of $11.10 per hour. Over the last four years, the

5 County has cut 1,504 positions, in addition to a projection of an

6 addition 369 layoffs for the 2010-2011 fiscal year. Kovacevic

7 Decl. ¶ 11. Fresno claims that, to maintain the current IHSS

8 wages, it would be forced to operate at a deficit each month in the

9 amount of $435,455, which equals $5,225,455 for the year.

10 Id. ¶ 12.

11

LEGAL STANDARD

12

“The standard for issuance of a temporary restraining order is

13 the same as that for issuance of a preliminary injunction.”

14 Burgess v. Forbes, 2009 WL 416843, at *2 (N.D. Cal.). To obtain a

15 preliminary injunction, the moving party must “establish that he is

16 likely to succeed on the merits, that he is likely to suffer

17 irreparable harm in the absence of preliminary relief, that the

18 balance of equities tips in his favor, and that an injunction is in

19 the public interest.” Winter v. Natural Res. Def. Council, Inc.,

20 ___ U.S. ___, 129 S. Ct. 365, 374 (2008).

21

DISCUSSION

22 I. Likelihood of Success on the Merits

23

To receive federal financial participation in payment for

24 services that states provide to low income persons who are aged,

25 blind, disabled or members of families with dependent children,

26 states must agree to comply with applicable federal Medicaid law.

27 Orthopaedic Hosp. v. Belshe, 103 F.3d 1491, 1493 (9th Cir. 1997).

28 The Medicaid Act requires a participating state to develop a state

7

United States District Court For the Northern District of California

1 plan which describes the policy and methods to be used to set

2 payment rates for each type of service included in the program. 42

3 C.F.R. § 447.201(b). A provision of the Medicaid Act, 42 U.S.C.

4 § 1396a(a)(30)(A) (hereinafter Section 30(A)), requires, in

5 relevant part, that a state’s Medicaid plan:

6

provide such methods and procedures relating to the

utilization of, and the payment for, care and services

7

available under the plan . . . as may be necessary . . . to

assure that payments are consistent with efficiency, economy,

8

and quality of care and are sufficient to enlist enough

providers so that care and services are available under the

9

plan at least to the extent that such care and services are

available to the general population in the geographic area.

10

The Ninth Circuit has noted that “providers’ wages and benefits

11

. . . are directly correlated to ensuring that services are

12

consistent with efficiency, economy, and quality of care, and

13

sufficient to ensure access to services under the IHSS program.”

14

Dominguez, 596 F.3d at 1093; see also Orthopaedic Hosp. v. Belshe,

15

103 F.3d 1491, 1493 (9th Cir. 1997) (“payments for [Medi-Cal]

16

services must be consistent with efficiency, economy, and quality

17

of care, and . . . those payments must be sufficient to enlist

18

enough providers to provide access to Medicaid recipients.”).

19

Because State Defendants’ approval of the Fresno rate

20

reduction “directly affects what Medi-Cal providers are paid for

21

providing services,” Dominguez, 596 F.3d at 1093 (emphasis in

22

original), this action requires compliance with Section 30(A). Id.

23

at 1094 (“The Department [of Social Services] is thus well aware

24

that prior to approving reimbursement rates established through

25

collective bargaining, it must determine whether sufficient access

26

27

28

8

United States District Court For the Northern District of California

1 to services is available.”).3 Thus, State Defendants’ approval of

2 the Fresno County rate change request cannot be valid unless State

3 Defendants “actually considered” an analysis regarding the impact

4 of the requested change on access and quality of care, prior to

5 approving the request. California Pharmacists Ass’n v. Maxwell-

6 Jolly, 563 F.3d 847, 850 (9th Cir. 2009).

7

The State cannot abdicate this responsibility by relying on

8 the fact that, through collective bargaining, the counties

9 determine IHSS wages and benefits. Martinez v. Schwarzenegger,

10 2009 WL 1844989, at *5 (N.D. Cal.) (“a county’s role in determining

11 IHSS wages and benefits does not preclude the State from analyzing

12 the impact of [a rate reduction] on the Section 30(A) factors prior

13 to enactment”). Under the Medicaid Act, the State, not the

14 individual counties, is bound by Section 30(A) as a condition of

15 Medicaid participation to ensure that rates are consistent with

16 3Fresno Defendants argue that this portion of Dominguez is
17 dicta because the primary issue before the court was whether the State violated Section 30(A) when enacting California Welfare &
18 Institutions Code § 12306.1(d)(6) without conducting a Section 30(A) analysis. The Ninth Circuit has noted that “‘where a panel
19 confronts an issue germane to the eventual resolution of the case, and resolves it after reasoned consideration in a published
20 opinion, that ruling becomes the law of the circuit, regardless of whether doing so is necessary in some strict logical sense.’”
21 Cetacean Cmty. v. Bush, 386 F.3d 1169, 1173 (quoting United States v. Johnson, 256 F.3d 895, 914 (9th Cir. 2001) (Kozinski, J.,
22 concurring)). This is true “regardless of whether it was in some technical sense ‘necessary’ to [the court’s] disposition of the
23 case,” so long as the issue was “addressed . . . and decided . . . in an opinion joined in relevant part by a majority of the panel.”
24 Barapind v. Enomoto, 400 F.3d 744, 750-51 (9th Cir. 2005) (en banc). Here, even if the quoted portions of Dominguez were not
25 “germane” to the resolution of case, the Court finds them persuasive. The Ninth Circuit was directly responding to State
26 Defendants’ argument that Section 30(A) did not apply to it because counties controlled rate setting. The court held that the State
27 must ensure compliance with Section 30(A) when approving counties’ proposed rates because of the integral role and oversight the State
28 plays by approving those rate changes.

9

United States District Court For the Northern District of California

1 quality care and are sufficient to enlist enough providers so that

2 care and services are available. See 42 C.F.R. § 431.10 (requiring

3 that single state agency be responsible for administration of

4 State’s Medicaid program).

5

Here, the State does not put forth any evidence that it

6 considered the Section 30(A) factors before approving the rate

7 change request submitted by Fresno. Accordingly, the Court

8 concludes that Plaintiffs have made a strong showing of likelihood

9 of success on the merits that Defendants violated the procedural

10 requirements of Section 30(A).

11

Because the Court concludes that a temporary restraining order

12 is warranted based on Plaintiffs’ likelihood of success on their

13 procedural claim, the Court need not determine the likelihood of

14 Plaintiffs’ success on their claim that Defendants violated the

15 substantive requirements of Section 30(A) or their claim that

16 Defendants violated the Americans with Disabilities Act.

17 II. Irreparable Harm, Balance of Hardships and the Public Interest

18

IHSS consumers will suffer immediate and irreparable harm

19 unless the Court issues a temporary restraining order. As the

20 Court previously recognized when it enjoined section 12306.1(d)(6):

21

The wage reductions will cause many IHSS providers to leave

employment, which in turn will leave consumers without IHSS

22

assistance. The consumers’ quality of life and health-care

will be greatly diminished, which will likely cause great

23

harm to disabled individuals. For instance, the

declarations submitted by Plaintiffs describe harms ranging

24

from going hungry and dehydration, to falls and burns, to an

inability ever to leave the home. Institutionalizing

25

individuals that can comfortably survive in their home with

the help of IHSS providers will “cause Plaintiffs to suffer

26

injury to their mental and physical health, including a

shortened life, and even death for some Plaintiffs.”

27

Crabtree v. Goetz, 2008 WL 5330506, at *30 (M.D. Tenn.).

28 Prelim. Inj. Order (Dkt. 131) at 10:26-11:10.

10

United States District Court For the Northern District of California

1

Similarly, the wage reductions at issue here are likely to

2 cause many providers to reduce their hours or quit IHSS employment

3 entirely. Howes Decl. ¶¶ 71-75; Aguilar Decl. ¶ 4; Bailey Decl.

4 ¶ 6; Boushele Decl. ¶ 6; M. Garcia Decl. ¶ 5; Jones Decl. ¶ 6;

5 Moreno Decl. ¶ 7; Thao Decl. ¶ 9; Muniz Decl. ¶ 4; Ward Decl. ¶ 5;

6 Wright Decl. ¶ 5; Altman Decl. (Dkt. 6) ¶ 4. This will likely

7 force IHSS recipients to go without IHSS assistance for some period

8 of time, or worse, enter a nursing home or other institutional

9 facility. The quality of these consumers’ lives and health care

10 will be greatly diminished, causing them irreparable harm.

11

IHSS providers will also suffer immediate and irreparable

12 harm. Although financial injury is generally not adequate to

13 establish irreparable harm, L.A. Mem’l Coliseum Comm’n v. Nat’l

14 Football League, 643 F.2d 1197, 1202 (9th Cir. 1980), financial

15 harm to the IHSS providers is irreparable because retrospective

16 monetary damages are unavailable due to the State Defendants’

17 Eleventh Amendment immunity. California Pharmacists, 563 F.3d at

18 851-52 (“[B]ecause the Hospital Plaintiffs and their members will

19 be unable to recover damages against the Department even if they

20 are successful on the merits of their case, they will suffer

21 irreparable harm if the requested injunction is not granted.”).

22 Further, the planned wage reduction “would impact many providers’

23 ability to afford such basic necessities as food, clothing,

24 utilities, and rent.” Dominguez, 596 F.3d at 1098; see also Bailey

25 Decl. ¶ 6, Boushele Decl. ¶ 6; Maiden Decl. ¶ 4; Singh Decl. ¶ 4;

26 Ward Decl. ¶ 4; Brown Supp. Decl. ¶ 9; Cendejas Decl. ¶ 4;

27 Everhardt Decl. ¶ 4; Leon Decl. ¶ 5; Martinez Decl. ¶ 6; Perez

28 Decl. ¶ 5; Valdez Decl. ¶ 4.

11

United States District Court For the Northern District of California

1

The balance of hardships and the public interest also weigh in

2 Plaintiffs’ favor. If the temporary restraining order does not

3 issue, the State and Fresno Defendants’ sole injury will be the

4 financial costs associated with continuing to participate under the

5 current IHSS provider wages. The Court notes that there is

6 persuasive evidence that the wage cuts would actually cost the

7 State and Fresno County tens of millions of additional dollars

8 because in-home care is considerably less expensive than

9 institutional care and IHHS providers reduce the need for expensive

10 emergency room visits. Accordingly, the financial loss the State

11 and Fresno County will suffer if the wage reduction is not

12 implemented does not outweigh the hardship Plaintiffs would suffer

13 absent a temporary restraining order. Lastly, the public interest

14 weighs heavily in favor of granting relief. “It would be tragic,

15 not only from the standpoint of the individuals involved but also

16 from the standpoint of society, were poor, elderly, disabled people

17 to be wrongfully deprived of essential benefits for any period of

18 time.” Lopez v. Heckler, 713 F.2d 1432, 1437 (9th Cir. 1983).

19 III. Bond

20

Federal Rule of Civil Procedure 65(c) "invests the district

21 court ‘with discretion as to the amount of security required, if

22 any.’” Jorgensen v. Cassiday, 320 F.3d 906, 919 (9th Cir. 2003)

23 (emphasis in original; quoting Barahona-Gomez v. Reno, 167 F.3d

24 1228, 1237 (9th Cir. 1999)). A district court has the discretion

25 to dispense with the security requirement where giving security

26 would effectively deny access to judicial review. See Save Our

27 Sonoran, Inc. v. Flowers, 408 F.3d 1113, 1126 (9th Cir. 2005)

28 (citation omitted). Similarly, a district court may waive the bond

12

United States District Court For the Northern District of California

1 requirement where the plaintiffs are indigent. See Walker v.

2 Pierce, 665 F. Supp. 831, 844 (N.D. Cal. 1987). The Court waives

3 the bond requirement for Plaintiffs because many of them are

4 indigent and to ensure their ability to access the courts on behalf

5 of themselves and other class members.

6

CONCLUSION

7

For the foregoing reasons, the Court grants Plaintiffs’

8 application for a temporary restraining order and order to show

9 cause why a preliminary injunction should not issue. Docket No.

10 287. As set forth in the separately filed temporary restraining

11 order, Defendants are enjoined and restrained from implementing

12 Fresno’s wage and benefits reductions. The Court also grants

13 Plaintiffs’ motion to exceed the page limit for their reply.

14 Docket No. 355.

15

16

IT IS SO ORDERED.

17 Dated: 07/02/10
18
19

CLAUDIA WILKEN United States District Judge

20

21

22

23

24

25

26

27

28

13

 
 1

2

3

4

5 IN THE UNITED STATES DISTRICT COURT
6

7

FOR THE NORTHERN DISTRICT OF CALIFORNIA

8

9 LYDIA DOMINGUEZ, et al.,

10

Plaintiffs,

11

v.

No. C 09-02306 CW
ORDER GRANTING PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION

United States District Court For the Northern District of California

12 ARNOLD SCHWARZENEGGER, et al.,

13

Defendants.

/

14

15

This case is about the implementation of cuts to the wages

16 paid to In-Home Support Services (IHSS) providers, who provide in-

17 home assistance to low-income elderly and disabled individuals

18 through California’s Medi-Cal program. Plaintiffs are a proposed

19 class of tens of thousands of individuals who currently receive

20 assistance through IHSS and the unions who represent IHSS

21 providers. Plaintiffs seek declaratory and injunctive relief to

22 enforce (1) the procedural and substantive requirements of the

23 Medicaid Act, 42 U.S.C. § 1396a(a)(30)(A) and (2) and the anti-

24 discrimination provisions of the Americans with Disabilities Act of

25 1990, 42 U.S.C. § 12132 and Section 504 of the Rehabilitation Act

26 of 1973, 29 U.S.C. § 794(a). In this motion, Plaintiffs seek

27 certification under Federal Rule of Civil Procedure 23(b)(2) of a

28

United States District Court For the Northern District of California

1 class composed of IHSS consumers residing in twenty-one counties1

2 and a subclass composed of IHSS consumers residing in Fresno

3 county. State Defendants and Fresno Defendants filed separate

4 oppositions to the motion. Having considered all of the papers

5 filed by the parties, the Court grants Plaintiffs’ motion.2

6

BACKGROUND

7

In 1973, California established the IHSS program to provide

8 assistance with the tasks of daily living to low-income elderly and

9 disabled persons “who cannot safely remain in their homes or abodes

10 of their own choosing unless these services are provided.” Cal.

11 Welf. & Inst. Code § 12300(a). IHSS providers give services such

12 as assistance with bathing, dressing, cooking, feeding, bowel and

13 bladder care, self-administration of medication and cleaning. Id.

14 § 12300(b), (c). Over 360,000 IHSS providers serve over 440,000

15 individuals in California. More than sixty-two percent of IHSS

16 recipients are served by a relative.

17

IHSS is administered by the State’s counties. Fifty-six of

18 California’s fifty-eight counties have established either a public

19 authority (PA) or a non-profit consortium (NPC) to deliver IHSS

20

21

1The twenty-one counties are Alameda, Calaveras, Contra Costa,

Fresno, Marin, Mendocino, Monterey, Napa, Placer, Riverside, 22 Sacramento, San Benito, San Francisco, San Luis Obispo, San Mateo,

Santa Barbara, Santa Clara, Santa Cruz, Solano, Sonoma and Yolo. 23

2The Court takes judicial notice of Plaintiffs’ exhibit A to 24 their request, a copy of a June 24, 2009 agenda item before the

Santa Clara County Board of Supervisors, because it contains facts 25 that are not subject to reasonable dispute in that they are capable

of accurate and ready determination by resort to sources whose 26 accuracy cannot be reasonably questioned. The Court takes judicial

notice of Defendants’ exhibit A to their notice, the declaration of 27 Sanja Kavocevic submitted in support of Fresno’s opposition to the

motion for a preliminary injunction, but not for the truth of the 28 matters asserted therein.

2

United States District Court For the Northern District of California

1 services. Each of these fifty-six counties has created and

2 maintains a registry from which service providers can be drawn. As

3 of June 30, 2007, there were over 14,500 persons in county

4 registries.3 These PAs and NPCs are considered employers of IHSS

5 providers for some purposes, including collective bargaining

6 agreements pertaining to providers’ wages and benefits; however,

7 individual consumers hire, fire and supervise their own IHSS

8 providers. Id. § 12301.6(c)(1).

9

Each county establishes the providers’ wages and benefits.

10 Thus, the rates paid to IHSS providers vary by county. Because

11 most IHSS consumers participate in California’s Medicaid program,

12 the federal government pays for about sixty-two percent of the IHSS

13 program’s costs.4 See 42 U.S.C. § 1396d(b). The State pays sixty-

14 five percent and the county pays thirty-five percent of the

15 remaining thirty-eight percent of the program’s costs. Cal. Welf.

16 & Inst. Code § 12306. The State’s contribution, however, is

17 subject to a statutory cap. Currently, the maximum state

18 contribution is sixty-five percent of the non-federal share of a

19 wage and benefit package of $12.10 per hour. Id. at § 12306.1(c)-

20 (d).

21

Wages and benefits are determined through the collective

22 bargaining process at the county level. Once these wages and

23 benefits are decided, they must be submitted to the California

24

25

3The parties did not provide a more recent estimate for the

number of IHSS providers in county registries. 26

4Before the passage of the American Recovery and Reinvestment 27 Act of 2009, the federal government contributed fifty percent of

the program’s costs. Dominguez v. Schwarzenegger, 595 F.3d 1087, 28 1091 n.2 (9th Cir. 2010).

3

United States District Court For the Northern District of California

1 Department of Health Care Services to ensure that they comply with

2 all applicable state and federal laws. Id. § 12306.1(a)-(b).

3

In response to California’s unprecedented budget crisis, on

4 February 20, 2009, the Governor signed into law California Welfare

5 and Institutions Code § 12306.1(d)(6). Scheduled to take effect

6 July 1, 2009, the law would have reduced the State’s maximum

7 contribution in wages and benefits from sixty-five percent of the

8 non-federal share of an hourly rate of $12.10 to sixty-five percent

9 of the non-federal share of an hourly rate of $10.10. This rate

10 represents $9.50 for wages and $0.60 for benefits. Counties would

11 not have to reduce wages and benefits and would be permitted to

12 make up the difference between the State’s previous contribution

13 and any reduction that would result from the State’s new maximum

14 contribution.

15

Only counties that currently pay IHSS providers more than

16 $10.10 per hour in wages and benefits would see a reduction in the

17 State’s contribution to IHSS costs. At the time the complaint was

18 filed, thirty-six of the fifty-six PAs and NPCs paid IHSS providers

19 $10.10 per hour or less in wages and benefits. Thus, there would

20 be no reduction in the State’s contribution to IHSS costs in a

21 majority of the counties, including Los Angeles, where forty-two

22 percent of all IHSS services are provided. Of the twenty-one

23 counties that pay wages and benefits of more than $10.10 per hour

24 to IHSS providers, twelve notified the State of their intent to

25 reduce IHSS wages in proportion to the anticipated reduction in the

26 State’s contribution. Of those twelve counties, Fresno is the only

27 one named as a Defendant. The Fresno PA submitted a rate change

28 request that hourly wages be reduced from $10.25 to $9.50 and

4

United States District Court For the Northern District of California

1 benefits from $.85 to $.60. These reduced rates were to take

2 effect July 1, 2009.

3

In their complaint, Plaintiffs allege that the wage reduction

4 provided in § 12306.1(d)(6) would have a substantial financial

5 impact on tens of thousands of IHSS providers throughout the State.

6 Plaintiffs’ expert, Economics Professor Candace Howes, estimates

7 that approximately 4,000 providers will leave IHSS employment

8 because of the rate reduction and that 2,700 IHSS consumers will be

9 unable to find replacements. Howes estimates that over one-fifth

10 of these consumers will try to remain at home without assistance

11 from an IHSS provider, which could be dangerous for the consumer.

12 Roughly half of those unable to find replacements (approximately

13 1,400) may have to enter skilled-nursing facilities or other

14 residential institutions.5

15

On June 4, 2009, Plaintiffs filed this class action complaint

16 and moved for entry of a preliminary injunction prohibiting State

17 Defendants from implementing section 12306.1(d)(6) pending a final

18 decision on the merits. On June 26, 2009, the Court granted

19

20

5Each side has challenged the admissibility of the evidence

submitted by the other side. However, unlike evidence presented at 21 a summary judgment stage, evidence presented in support of class

certification need not be admissible at trial. See Mazza v. Am. 22 Honda Motor Co., 254 F.R.D. 610, 616 (C.D. Cal. 2008) (citing Eisen

v. Carlisle & Jacquelin, 417 U.S. 156, 187 (1974)). At the class 23 certification stage, a plaintiff need not present evidence because

discovery may not yet have occurred. In fact, “the district court 24 is bound to take the substantive allegations of the complaint as

true.” In re Coordinated Pretrial Proceedings in Petroleum Prods. 25 Antitrust Litig. v. Standard Oil Co. of Cal., 691 F.2d 1335, 1342

(9th Cir. 1982) (citation omitted). The district court may, of 26 course, consider evidence that supports or does not support class

certification, but a district court may certify a class without 27 supporting evidence. Hanon v. Dataproducts Corp., 976 F.2d 497,

509 (9th Cir. 1992). Therefore, the Court will exercise its 28 discretion to consider the proffered evidence as appropriate.

5

United States District Court For the Northern District of California

1 Plaintiffs’ motion and found that they had demonstrated a strong

2 likelihood of success on their first cause of action, that State

3 Defendants had violated the federal Medicaid Act by failing to

4 consider the factors set forth in 42 U.S.C. § 1396a(a)(30)(A)

5 (Section 30(A)) before enacting section 12306.1(d)(6). The Court

6 also concluded that, absent immediate injunctive relief, both IHSS

7 consumers and providers would suffer irreparable harm as a result

8 of the wage reductions caused by the implementation of section

9 12306.1(d)(6).

10

Plaintiffs bring three other causes of action, none of which

11 the Court addressed in the preliminary injunction opinion: the

12 second cause of action against State Defendants for violating the

13 substantive provisions of Section 30(A), the third cause of action

14 against State and Fresno Defendants for violating the anti-

15 discrimination provisions of the Americans with Disabilities Act of

16 1990, 42 U.S.C. § 12132, and the fourth cause of action against

17 State and Fresno Defendants for violating the anti-discrimination

18 provisions of Section 504 of the Rehabilitation Act of 1973, 29

19 U.S.C. § 794(a).

20

Plaintiffs now move to certify the following class pertaining

21 to all causes of action:

22

All In-Home Supportive Services consumers residing in

Alameda, Calaveras, Contra Costa, Fresno, Marin, Mendocino,

23

Monterey, Napa, Placer, Riverside, Sacramento, San Benito,

San Francisco, San Luis Obispo, San Mateo, Santa Barbara,

24

Santa Clara, Santa Cruz, Solano, Sonoma and Yolo counties.

25 Motion at 1. Plaintiffs move to certify the following subclass

26 (Fresno Subclass) pertaining to the third and fourth causes of

27 action: “All In-Home Supportive Services consumers residing in

28 Fresno County.” Id.

6

United States District Court For the Northern District of California

1

LEGAL STANDARD

2

Plaintiffs seeking to represent a class must satisfy the

3 threshold requirements of Rule 23(a) as well as the requirements

4 for certification under one of the subsections of Rule 23(b). Rule

5 23(a) provides that a case is appropriate for certification as a

6 class action if:

7

(1) the class is so numerous that joinder of all members

is impracticable;

8

(2) there are questions of law or fact common to the

9

class;

10

(3) the claims or defenses of the representative parties

are typical of the claims or defenses of the class; and

11

(4) the representative parties will fairly and adequately

12

protect the interests of the class.

13 Fed. R. Civ. P. 23(a). Plaintiffs move for certification under

14 Rule 23(b)(2), which allows certification if

15

the party opposing the class has acted or refused to act

on grounds that apply generally to the class, so that

16

final injunctive relief or corresponding declaratory

relief is appropriate respecting the class as a whole

17

Fed. R. Civ. P. 23(b)(2).

18

Plaintiffs seeking class certification bear the burden of

19

demonstrating that each element of Rule 23 is satisfied, and a

20

district court may certify a class only if it determines that the

21

plaintiffs have borne their burden. Gen. Tel. Co. v. Falcon, 457

22

U.S. 147, 158-61 (1982); Doninger v. Pac. Nw. Bell, Inc., 564 F.2d

23

1304, 1308 (9th Cir. 1977). The court must conduct a “rigorous

24

analysis,” which may entail “looking beyond the pleadings to issues

25

overlapping with the merits of the underlying claims.” Dukes v.

26

Wal-Mart Stores, Inc., 603 F.3d 571, 594 (9th Cir. 2010). In

27

doing so, however, the court must not consider “any portion of the

28

7

United States District Court For the Northern District of California

1 merits of a claim that do not overlap with the Rule 23

2 requirements.” Id. To satisfy itself that class certification is

3 proper, the court may consider material beyond the pleadings and

4 require supplemental evidentiary submissions by the parties. Id.

5 at 589 (quoting Blackie v. Barrack, 524 F.2d 891, 901 n.17 (9th

6 Cir. 1975)). Ultimately, it is in the district court’s discretion

7 whether a class should be certified. Id. at 579.

8

DISCUSSION

9

In addition to opposing class certification, Fresno Defendants

10 also argue that Plaintiffs lack standing to assert their claims.

11 The Court addresses the standing issues first.

12 I. Standing

13

The standing inquiry asks whether a plaintiff has suffered an

14 actual or imminent injury that is fairly traceable to the

15 defendant’s conduct and that is likely to be redressed by a

16 favorable court decision. Salmon Spawning & Recovery Alliance v.

17 Gutierrez, 545 F.3d 1220, 1225 (9th Cir. 2008). Fresno Defendants

18 argue that Plaintiffs’ declarations submitted in support of their

19 motion for class certification demonstrate that they do not have

20 standing. Fresno Defendants assert that these declarations merely

21 describe named Plaintiffs “fears, beliefs, and suppositions that

22 their IHSS providers might leave them if the wages are reduced.”

23 Opp. at 6-7. However, the Court relied on these same declarations

24 in its preliminary injunction order to conclude the following:

25

The wage reductions will cause many IHSS providers to leave

employment, which in turn will leave consumers without IHSS

26

assistance. The consumers’ quality of life and health care

will be greatly diminished, which will likely cause great

27

harm to disabled individuals. For instance, the

declarations submitted by Plaintiffs describe harms ranging

28

from going hungry to dehydration, to falls and burns, to an

8

United States District Court For the Northern District of California

1

inability ever to leave the home. Institutionalizing

individuals that can comfortably survive in their home with

2

the help of IHSS providers will cause Plaintiffs to suffer

injury to their mental and physical health, including a

3

shortened life, and even death for some Plaintiffs.

4 Order Granting Prelim. Inj. at 11. The Court reaffirms these

5 conclusions. Accordingly, Plaintiffs have met injury in fact

6 requirement for standing.

7 I. Rule 23(a) Requirements

8

A. Numerosity

9

“The prerequisite of numerosity is discharged if ‘the class is

10 so large that joinder of all members is impracticable.’” Hanlon v.

11 Chrysler Corp., 150 F.3d 1011, 1019 (9th Cir. 1998) (quoting Fed.

12 R. Civ. P. 23(a)(1)). Here, Plaintiffs claim that the proposed

13 class comprises tens of thousands of low income senior citizens and

14 people with disabilities who receive services from IHSS providers

15 through California’s Medi-Cal program. Defendants concede that

16 Plaintiffs meet the numerosity requirement, and the Court finds

17 that it is satisfied.

18

B. Commonality

19

Rule 23(a)(2) requires that there be “questions of law or fact

20 common to the class.” Fed. R. Civ. P. 23(a)(2). The Ninth Circuit

21 has explained that Rule 23(a)(2) does not preclude class

22 certification if fewer than all questions of law or fact are common

23 to the class. “All questions of fact and law need not be common to

24 satisfy the rule. The existence of shared legal issues with

25 divergent factual predicates is sufficient, as is a common core of

26 salient facts coupled with disparate legal remedies within the

27 class.” Hanlon, 150 F.3d at 1019.

28

In civil rights suits, “commonality is satisfied where the

9

United States District Court For the Northern District of California

1 lawsuit challenges a system-wide practice or policy that affects

2 all of the putative members.” Armstrong v. Davis, 275 F.3d 849,

3 868 (9th Cir. 2001). “In such circumstances, individual factual

4 differences among the individual litigants or groups of litigants

5 will not preclude a finding of commonality.” Id.

6

The common issues of law and fact for Plaintiffs’ proposed

7 class include: (1) whether the State failed adequately to consider

8 the impact of section 12306.1(d)(6) on efficiency, economy, quality

9 of care, and access to services prior to enacting the statute, in

10 violation of Section 30(A) of the federal Medicaid Act; (2) whether

11 the IHSS provider wages and benefits that would result from the

12 implementation of section 12306.1(d)(6) would be inconsistent with

13 Medicaid’s mandated quality of care in violation of Section 30(A)

14 of the federal Medicaid Act;6 and (3) whether the implementation of

15 section 12306.1(d)(6) would violate the rights of class members to

16 be free from discrimination on the basis of their disability under

17 the ADA, 42 U.S.C. § 12132 and Section 504 of the Rehabilitation

18 Act, 29 U.S.C. § 794(a), by forcing disabled individuals who could

19 otherwise remain in their homes to enter nursing homes or other

20 residential institutions.

21

The common issues of law and fact pertaining to the Fresno

22 Subclass are whether the reduction of IHSS wages from $10.25 per

23 hour to $9.50 per hour and of the IHSS benefits rate from $.85 per

24 hour to $.60 would violate the rights of class members to be free

25 6State Defendants note that class certification of the Section
26 30(A) claims is not necessary because the injunctive relief Plaintiffs seek benefits all putative members. See Access Now Inc.
27 v. Walt Disney World Co., 211 F.R.D. 452, 455 (M.D. Fla. 2001). While this may be true, it does not make granting class
28 certification of these claims improper.

10

United States District Court For the Northern District of California

1 from discrimination on the basis of their disability under the ADA,

2 42 U.S.C. § 12132 and Section 504 of the Rehabilitation Act, 29

3 U.S.C. § 794(a), by forcing disabled individuals who could

4 otherwise remain in their homes to enter nursing homes or other

5 residential institutions.

6

State and Fresno Defendants argue that the disparity in the

7 manner in which counties have responded to section 12306.1(d)(6)

8 and the varying circumstances of individual class members regarding

9 their health, the services they receive and the county in which

10 they live precludes a finding of commonality. However, the

11 differences that exist here do not justify requiring individuals,

12 who would no longer receive assistance from IHSS if § 12306.1(d)(6)

13 were in effect, to prosecute separate actions.

14

With respect to the first two causes of action, the varied

15 responses of individual counties to the State’s enactment of

16 § 12306.1(d)(6) are irrelevant to the State’s duty under Section

17 30(A) of the Medicaid Act. Similarly, with the respect to the ADA

18 and Rehabilitation Act claims, Plaintiffs’ theory is that the

19 decrease in IHSS provider rates in the twenty-one counties that

20 paid more than $9.50 in wages before the statute was to be

21 implemented would reduce the number of IHSS providers in those

22 counties and increase the risk of institutionalization of disabled

23 and elderly individuals in violation of these statutes.

24 Plaintiffs’ theory challenges the aggregate effect of

25 § 12306.1(d)(6), which can efficiently be adjudicated on a class-

26 wide basis, even if the specific rate decreases vary among

27 counties. Further, as noted above, common allegations that

28 Defendants’ laws and policies are discriminatory suffice to

11

United States District Court For the Northern District of California

1 establish commonality of claims even where individual class

2 members’ factual circumstances differ. See Armstrong, 275 F. 3d at

3 868; Walters v. Reno, 145 F.3d 1032, 1046 (9th Cir. 1998)

4 (“Differences among the class members” did not preclude class

5 certifications of plaintiffs’ claims that challenged “general

6 practices” of government agency); Jordan v. Los Angeles County, 669

7 F.2d 1311, 1320 (9th Cir. 1982) vacated and rem’d on other grounds,

8 459 U.S. 810 (1982) (“[T]he legality of defendant’s practice or

9 policies will usually be a question common to the class, and the

10 existence of different factual questions with respect to various

11 [plaintiffs] will not defeat satisfaction of the commonality

12 requirement”); Arnold v. United Artists Theatre Circuit, Inc., 158

13 F.R.D. 439, 448 (N.D. Cal. 1994). Accordingly, Plaintiffs have

14 satisfied the commonality requirement of Rule 23(a).

15 C. Typicality

16

The typicality prerequisite of Rule 23(a) is fulfilled if “the

17 claims or defenses of the representative parties are typical of the

18 claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3).

19 “Where the challenged conduct is a policy or practice that affects

20 all class members, the underlying issue presented with typicality

21 is similar to that presented with respect to commonality, although

22 the emphasis may be different. Armstrong, 275 F.3d at 868-69. The

23 test for typicality is “whether other members have the same or

24 similar injury, whether the action is based on conduct which is not

25 unique to the named plaintiffs, and whether other class members

26 have been injured by the same course of conduct." Hanon v.

27 Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992) (quoting

28 Schwartz v. Harp, 108 F.R.D. 279, 282 (C.D. Cal. 1985)). “Under

12

United States District Court For the Northern District of California

1 the rule’s permissive standards, representative claims are

2 ‘typical’ if they are reasonably co-extensive with those of absent

3 class members; they need not be substantially identical.” Hanlon,

4 150 F.3d at 1020.

5

Here, named Plaintiffs’ claims mirror those of the class as a

6 whole. Named Plaintiffs and unnamed class members receive IHSS

7 services that allow them to remain safely at home; and, with the

8 passage of § 12306.1(d)(6), named Plaintiffs and unnamed class

9 members are threatened by the same risk of losing critical services

10 and of possible institutionalization. Further, named Plaintiffs in

11 the Fresno Subclass face the same risk of harm as the unnamed

12 members of the Fresno Subclass because Fresno Defendants’ conduct

13 allegedly will lead to a reduction in the number of IHSS providers,

14 which will result in IHSS recipients becoming unable to live

15 outside of an institution.

16

Fresno Defendants respond that named Plaintiffs’ claims are

17 not typical of Fresno class members because Defendants plan to

18 present “unique defenses which threaten to become the focus of the

19 litigation.” Hanon, 976 F.2d at 508. Specifically, Fresno

20 Defendants claim that Fresno County has independent grounds for

21 reducing IHSS wages and Plaintiffs from other counties are not

22 subject to these defenses. However, the creation of a Fresno

23 Subclass addresses this issue. Only the named Plaintiffs from

24 Fresno and the Fresno Subclass are suing Fresno and any purported

25 defense available to Fresno Defendants would affect all members of

26 the Fresno Subclass equally. Thus, defenses that might apply to

27 the Fresno Subclass will not become the focus of the litigation.

28

State Defendants argue that the proposed creation of a Fresno

13

United States District Court For the Northern District of California

1 Subclass is an admission that there is no typicality among the

2 named Plaintiffs. The named Plaintiffs from Fresno County bring

3 separate claims against both State Defendants and Fresno

4 Defendants. There is no reason why a separate claim against Fresno

5 Defendants necessarily impacts the typicality requirement. In sum,

6 Plaintiffs satisfy the typicality requirement of Rule 23(a).

7 D. Adequacy of Representation

8

Rule 23(a)(4) requires that “the representative parties will

9 fairly and adequately protect the interests of the class.” Fed. R.

10 Civ. P. 23(a)(4). The adequacy requirement consists of two

11 inquiries: “(1) do the representative plaintiffs and their counsel

12 have any conflicts of interest with other class members, and

13 (2) will the representative plaintiffs and their counsel prosecute

14 the action vigorously on behalf of the class?” Staton v. Boeing

15 Co., 327 F.3d 938, 958 (9th Cir. 2003).

16

State Defendants argue that the class representatives are

17 inadequate because they reside in only four of the twenty-one

18 counties that they seek to represent and the IHSS programs and

19 program recipients vary by county. State Defendants do not address

20 how these points are relevant to demonstrating antagonism within

21 the class or to whether named Plaintiffs will prosecute the action

22 vigorously. Plaintiffs adequately allege that section

23 12306.1(d)(6), if not enjoined, would apply equally to all members

24 of the proposed class, and injunctive relief would benefit all

25 members of the class. Plaintiffs have satisfied the adequacy prong

26 of 23(a).

27 II. Class Certification Under Rule 23(b)(2)

28

Plaintiffs move that the class be certified as an injunctive

14

United States District Court For the Northern District of California

1 relief class under Rule 23(b)(2). Rule 23(b)(2) permits

2 certification where “the party opposing the class has acted or

3 refused to act on grounds that apply generally to the class, so

4 that final injunctive relief or corresponding declaratory relief is

5 appropriate respecting the class as a whole.” Fed. R. Civ. P.

6 23(b). “Class certification under Rule 23(b)(2) is appropriate

7 only where the primary relief sought is declaratory or injunctive.”

8 Zinser v. Accufix Research Institute, Inc., 253 F.3d 1180, 1195

9 (9th Cir. 2001).

10

Although common issues must predominate for class

11 certification under Rule 23(b)(3), no such requirement exists under

12 Rule 23(b)(2). “It is sufficient if class members complain of a

13 pattern or practice that is generally applicable to the class as a

14 whole. Even if some class members have not been injured by the

15 challenged practice, a class may nevertheless be appropriate.”

16 Walters v. Reno, 145 F.3d 1032, 1047 (9th Cir. 1998); see 7A

17 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal

18 Practice & Procedure § 1775 (2d ed. 1986) (“All the class members

19 need not be aggrieved by or desire to challenge the defendant's

20 conduct in order for some of them to seek relief under Rule

21 23(b)(2).”); see also Adamson v. Bowen, 855 F.2d 668, 676 (10th

22 Cir. 1988) (emphasizing that, although “the claims of individual

23 class members may differ factually,” certification under Rule

24 23(b)(2) is a proper vehicle for challenging “a common policy”).

25

Plaintiffs challenge the implementation of § 12306.1(d)(6),

26 which applies to all members of the proposed class and subclass,

27 even if its effects are experienced differently by individual IHSS

28 recipients throughout California. Class certification for

15

United States District Court For the Northern District of California

1 injunctive relief is appropriate in this case because State and

2 Fresno Defendants are alleged to have acted “on grounds that apply

3 generally to the class.” Accordingly, the Court certifies a class

4 under Rule 23(b)(2).

5 III. Class Definition

6

State Defendants argue that Plaintiffs’ proposed class

7 definition is too broad because named Plaintiffs cannot represent

8 IHSS recipients in counties other than those in which they live.

9 State Defendants assert that the Court should narrow the class to

10 the counties in which named Plaintiffs reside, if those counties

11 sought to reduce IHSS provider wages and benefits. Their argument

12 is not persuasive. Plaintiffs may represent a class of IHSS

13 consumers in all counties where, at the time section 12306.1(d)(6)

14 was implemented, IHSS providers were paid wages that exceeded $9.50

15 per hour or paid a combination of wages and benefits that exceeded

16 $10.10 per hour. Plaintiffs allege that, had section 12306.1(d)(6)

17 not been enjoined, IHSS consumers in each of these counties would

18 have been affected. At this stage in the litigation, it does not

19 matter that not all of the twenty-one counties that fit this

20 description did not seek to reduce provider rates immediately on

21 the law’s effective date. If the State were not enjoined, these

22 counties would be impacted by the rate change. Therefore, the

23 Court will accept Plaintiffs’ proposed class definition.

24

CONCLUSION

25

For the foregoing reasons, the Court grants Plaintiffs’ motion

26 for class certification pursuant to Fed. R. Civ. P. 23(a) and

27 (b)(2) for injunctive and declaratory relief. Docket No. 245. The

28 Court notes that, although it grants certification,

16

United States District Court For the Northern District of California

1 “[d]eterminations to certify a class depend on initial predication

2 and are always subject to revision.” Tardiff v. Knox County, 365

3 F.3d 1, 6 (1st Cir. 2004). The Court can always decertify the

4 class should that become necessary.

5

For the first through fourth causes of action against State

6 Defendants, the Plaintiff Class is defined as:

7

All In-Home Supportive Services consumers residing in

Alameda, Calaveras, Contra Costa, Fresno, Marin, Mendocino,

8

Monterey, Napa, Placer, Riverside, Sacramento, San Benito,

San Francisco, San Luis Obispo, San Mateo, Santa Barbara,

9

Santa Clara, Santa Cruz, Solano, Sonoma and Yolo counties.

10 For the third and fourth causes of action against Fresno

11 Defendants, the Fresno Subclass is defined as: “All In-Home

12 Supportive Services consumers residing in Fresno County.”

13

The Court appoints Plaintiffs’ counsel to serve as class

14 counsel. Plaintiffs need not notify absent class members of the

15 certification. Fed. R. Civ. P. 23(c)(2)(A).

16

IT IS SO ORDERED.

17 Dated: 06/08/10
18
19

CLAUDIA WILKEN United States District Judge

20

21

22

23

24

25

26

27

28

17

 
 1 KAMALA D. HARRIS Attorney General of California
2 SUSAN M. CARSON Supervising Deputy Attorney General
3 State Bar No. 135875 455 Golden Gate Avenue, Suite 11000
4 San Francisco, CA 94102-7004 Telephone: (415) 703-5580
5 Fax: (415) 703-5480 E-mail: susan.carson@doj.ca.gov
6 Attorneys for Defendants

7

8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE NORTHERN DISTRICT OF CALIFORNIA

10

OAKLAND DIVISION

11

12

LYDIA DOMINGUEZ, PATSY MILLER, CV 09-2306 CW ALEX BROWN, by and through his mother

13

and next friend Lisa Brown, DONNA BROWN, CHLOE LIPTON, by and

STIPULATION AND ORDER STAYING ALL DISTRICT COURT PROCEEDINGS

14

through her conservator and next friend

IN THIS ACTION PENDING

Julie Weissman-Steinbaugh, HERBERT M. RESOLUTION OF RELATED

15

MEYER, LESLIE GORDON, CHARLENE PROCEEDINGS IN THE U.S. SUPREME AYERS, WILLIE BEATRICE SHEPPARD, COURT

16

and ANDY MARTINEZ, on behalf of themselves and a class of those similarly

17

situated; SERVICE EMPLOYEES INTERNATIONAL UNION UNITED

18

HEALTHCARE WORKERS WEST; SERVICE EMPLOYEES

19

INTERNATIONAL UNION UNITED LONG-TERM CARE WORKERS;

20

SERVICE EMPLOYEES INTERNATIONAL UNION LOCAL 521;

21

SERVICE EMPLOYEES INTERNATIONAL UNION CALIFORNIA

22

STATE COUNCIL, UNITED DOMESTIC WORKERS OF AMERICA, AFSCME,

23

LOCAL 3930, AFL-CIO; and CALIFORNIA UNITED HOMECARE

24 WORKERS,

Plaintiffs,

25

v.

26 ARNOLD SCHWARZENEGGER, Governor of the State of California, et al.,
27 Defendants.
28
1

STIPULATION AND [PROPOSED] ORDER STAYING ALL DISTRICT COURT PROCEEDINGS IN THIS ACTION PENDING RESOLUTION OF RELATED PROCEEDINGS IN U.S. SUPREME CT. (CV 09-2306 CW)

1

WHEREAS the U.S. Supreme Court has granted defendants’ joint petition for certiorari in

2 Douglas v. California Pharmacists, Case No. 09-1158, of which this case is a part;

3

WHEREAS the parties believe that there is a significant possibility that the U.S. Supreme

4 Court’s decision in California Pharmacists could either eliminate the need for further litigation in

5 this action or significantly clarify and narrow the issues that would still need to be litigated;

6

WHEREAS the parties agree that it would be more efficient for the Court and the parties to

7 stay all district court proceedings pending the U.S. Supreme Court’s resolution of Douglas v.

8 California Pharmacists;

9

IT IS HEREBY STIPULATED between the parties through their respective counsel that,

10 subject to this court’s approval:

11

1. All district court proceedings in this action are hereby stayed.

12

2. The stay shall be lifted automatically upon the U.S. Supreme Court’s issuance of its

13 decision in Douglas v. California Pharmacists, Case No. 09-1158.

14

3. The stay may be lifted unilaterally by any party at any time upon three (3) days’ prior

15 written notice to the court and all other parties.

16

4. The stay may be lifted at any time by order of the court.

17

18 ///

19 ///

20 ///

21 ///

22 ///

23 ///

24 ///

25 ///

26 ///

27 ///

28 ///
2
STIPULATION AND [PROPOSED] ORDER STAYING ALL DISTRICT COURT PROCEEDINGS IN THIS ACTION PENDING RESOLUTION OF RELATED PROCEEDINGS IN U.S. SUPREME CT. (CV 09-2306 CW)

1 Dated: February 25, 2011

Respectfully submitted,

2

KAMALA D. HARRIS

Attorney General of California

3

/S/ SUSAN M. CARSON

.

4

SUSAN M. CARSON

5

Supervising Deputy Attorney General

Attorneys for State Defendants

6

7

Respectfully submitted,

8

Stephen P. Berzon

Scott A. Kronland

9

Stacey M. Leyton

Peder J. Thoreen

10

Anne N. Arkush

Altshuler Berzon LLP

11

/s/ Stacey M. Leyton

.

12

Attorneys for Plaintiffs

13

Respectfully submitted,

14

Michael G. Woods

15

Timothy J. Buchanan

Mandy L. Jeffcoach

16

McCormick, Barstow, Sheppard, Wayte &

Carruth LLP

17

/s/ Timothy J. Buchanan

.

18

Attorneys for Fresno Defendants

19

20

21

22

23

24

25

26

27

28
3
STIPULATION AND [PROPOSED] ORDER STAYING ALL DISTRICT COURT PROCEEDINGS IN THIS ACTION PENDING RESOLUTION OF RELATED PROCEEDINGS IN U.S. SUPREME CT. (CV 09-2306 CW)

1

GENERAL ORDER 45 ATTESTATION

2

I, Susan Carson, am the ECF user whose ID and password are being used to file this

3 declaration. In compliance with General Order 45, X.B., I hereby attest that counsel for Plaintiffs

4 and Fresno Defendants have concurred in the filing of this document with their electronic

5 signatures.

6 Dated: February 25, 2011

7

/S/ Susan M. Carson

.

Susan Carson 8

9

10

PURSUANT TO STIPULATION, IT IS SO ORDERED. However, absent a further

stipulation or order of the Court, the dates set for Court appearances will remain on 11 calendar.

12 13 Dated: March 2, 2011
14

________________________
Honorable Claudia A. Wilken United States District Court Judge

15

16

SF2009403964 20412114.doc

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4
STIPULATION AND [PROPOSED] ORDER STAYING ALL DISTRICT COURT PROCEEDINGS IN THIS ACTION PENDING RESOLUTION OF RELATED PROCEEDINGS IN U.S. SUPREME CT. (CV 09-2306 CW)

 
 Case4:09-cv-02306-CW Document458-2 Filed05/10/13 Page1 of 62
EXHIBIT 1

Case4:09-cv-02306-CW Document458-2 Filed05/10/13 Page2 of 62
SETTLEMENT AGREEMENT I. INTRODUCTION
1. This Settlement Agreement (Agreement) globally resolves the following two class-action lawsuits: Oster v. Lightbourne, N.D. Cal., Case No. CV 09-04668 CW, U.S. Court of Appeals for the Ninth Circuit, Case No. 12-15366 (Oster); and Dominguez v. Brown, N.D. Cal., Case No. CV 09-02306 CW, U.S. Court of Appeals for the Ninth Circuit, Case No. 0916359 (Dominguez). It is the intent of the Parties that this Agreement will fully and finally resolve the Oster and Dominguez cases. This Agreement represents substantial compromises among all the Parties, and addresses the long term stability of the programs at issue in these cases for the benefit of recipients, providers, and the State of California. II. PARTIES
2. The Individual Named Plaintiffs in Oster are David Oster; Willie Beatrice Sheppard; C.R., by and through his guardian ad litem, M.R.; Dottie Jones; Andrea Hylton; Helen Polly Stern; Charles Thurman; and L.C., by and through her guardian ad litem, M.G. The Organizational Plaintiffs in Oster are Service Employees International Union-United Healthcare Workers West; Service Employees International Union-United Long Term Care Workers; Service Employees International Union Local 521; Service Employees International Union State Council; United Domestic Workers of America, AFSCME Local 3930, AFL-CIO; and California United Healthcare Workers. Defendants in Oster are Will Lightbourne, Director of the California Department of Social Services (CDSS); Toby Douglas, Director of the California Department of Health Care Services (DHCS); CDSS; and DHCS.
3. The Individual Named Plaintiffs in Dominguez are Patsy Miller; Alex Brown, by and through his mother and next friend Lisa Brown; Donna Brown; Chloe Lipton, by and
Page 1 of 13

Case4:09-cv-02306-CW Document458-2 Filed05/10/13 Page3 of 62
through her conservator and next friend Julie Weissman-Steinbaugh; Herbert M. Meyer;
Charlene Ayers; Leslie Gordon; Willie Beatrice Sheppard; Andy Martinez; and Carolyn Stewart,
on behalf of themselves and a class of those similarly situated. The Organizational Plaintiffs in
Dominguez are Service Employees International Union-United Healthcare Workers West;
Service Employees International Union-United Long Term Care Workers; Service Employees
International Union Local 521; Service Employees International Union California State Council;
United Domestic Workers of America, AFSCME Local 3930, AFL-CIO; and California United
Homecare Workers. State Defendants in Dominguez are Will Lightbourne, Director of CDSS, and Toby Douglas, Director of DHCS.1
4. The term “Plaintiffs” in this Agreement refers to all individual and organizational
plaintiffs as well as the Classes for Oster and the amended class for Dominguez.
5. The term “State Defendants” in this Agreement refers to the state officer and state
entity defendants in both Oster and Dominguez.
6. The term “Parties” in this Agreement refers to Plaintiffs and State Defendants.
7. The term “IHSS recipients” in this Agreement refers to all recipients in the State
of California who receive services through the In-Home Supportive Services (IHSS), IHSS Plus
Option, Personal Care Services, or Community First Choice Option programs.
1 By operation of law, named defendant John A. Wagner is replaced by his successor, Will Lightbourne; and named defendant David Maxwell-Jolly is replaced by his successor, Toby Douglas. Governor Edmund G. Brown Jr., Controller John Chiang, Fresno County, and Fresno County In-Supportive Services Public Authority are currently named defendants in Dominguez but are not parties to this settlement agreement. Plaintiffs have agreed to dismiss with prejudice Brown and Chiang, with all parties to bear their own fees and costs. Plaintiffs have also agreed to dismiss Fresno County and Fresno County IHSS Public Authority without prejudice, with all parties to bear their own fees and costs. Plaintiffs are not releasing any claims against Fresno County or Fresno County IHSS Public Authority arising from this county’s request for or implementation of a future reduction in IHSS wages.
Page 2 of 13

Case4:09-cv-02306-CW Document458-2 Filed05/10/13 Page4 of 62

III. JURISDICTION

8. The United States District Court has jurisdiction over the claims against all

defendants pursuant to 28 U.S.C. §§ 1331, 1343, and 1367. Venue is proper in the Northern

District of California pursuant to 28 U.S.C. § 1392(b).

IV. CLASS DEFINITIONS

9. The district court has previously certified the Oster Classes as set forth below and

appointed as Class Representatives the Individual Named Plaintiffs listed in paragraph 2 of the

Agreement:

Class A:

All IHSS recipients in the State of California whose IHSS services

will be limited, cut, or terminated under the provisions of ABX4 4, and all

applicants to IHSS in the State of California who would have been eligible for

IHSS services but who are either not eligible, or are eligible for fewer services, as

a result of ABX4 4.

Class B:

All IHSS recipients in the State of California who have received or

will receive notices of action that include a reduction of IHSS hours based on SB

73 or Defendants’ implementation of SB 73, including future applicants for IHSS

services whose notice of action will reflect reduced IHSS hours as a result of SB

73 or Defendants’ implementation of SB 73.

10. The district court has previously certified a Class in Dominguez and appointed as

Class Representatives the Individual Named Plaintiffs listed in paragraph 3 of this Agreement.

The Parties agree that, due to changes in factual circumstances, the Class definition should be

amended by adding five counties (Los Angeles, Madera, Mariposa, San Joaquin, and Yuba).

Accordingly, in connection with preliminary approval of the Settlement Agreement, Plaintiffs

will ask the district court to amend the class definition to the following:

All IHSS recipients who reside in Alameda, Calaveras, Contra Costa, Fresno, Los Angeles, Madera, Marin, Mariposa, Mendocino, Monterey, Napa, Placer, Riverside, Sacramento, San Benito, San Francisco, San Joaquin, San Luis Obispo, San Mateo, Santa Barbara, Santa Clara, Santa Cruz, Solano, Sonoma, Yolo, and Yuba counties.

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Case4:09-cv-02306-CW Document458-2 Filed05/10/13 Page5 of 62
11. If the district court does not approve this Agreement, the Parties agree that State Defendants will not be prejudiced or bound by anything in this Agreement, and instead, State Defendants will have whatever rights they would have had before they entered into this Agreement to contest that the Plaintiffs are appropriate class representatives, and/or to contest that the Oster and Dominguez classes meet the requirements of Federal Rules of Civil Procedure 23(a) and 23(b)(2). V. REDUCTION IN NUMBER OF AUTHORIZED HOURS
12. Contingent upon enactment of the state legislation described in Exhibit A of this Agreement, State Defendants will implement an 8 percent across-the-board reduction in authorized service hours that shall run for 12 consecutive months. It is the intent of the Parties that this reduction be implemented on July 1, 2013.
13. Effective 12 months after implementation of the 8 percent reduction set forth in the preceding paragraph, and contingent upon enactment of the state legislation described in Exhibit A of this Agreement, State Defendants will replace the 8 percent reduction with, and will implement, an ongoing 7 percent across-the-board reduction in authorized service hours.
14. The reductions identified in paragraphs 12 and 13 shall not be in addition to the current 3.6 percent across-the-board reduction of authorized service hours. The current reduction of 3.6 percent terminates by operation of law on July 1, 2013. It is the intent of the Parties to avoid any time period during which the 3.6 percent reduction has expired but the 8 percent reduction has not yet been implemented.
15. The reductions identified in paragraphs 12 and 13 will be the result of a change in state law and therefore are not subject to appeal by state fair hearing, administrative hearing, trial court, or otherwise. Any such appeal can be administratively denied, and the recipient will not
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have “aid-paid-pending” rights in such an appeal. No further legislative authority, beyond that provided in Exhibit A, shall be necessary to implement the reductions described in paragraphs 12 and 13.
16. Recipients shall retain their right to request a reassessment based on a change in circumstances consistent with California Welfare and Institutions Code section 12301.1(d) (as of 2013). In accordance with applicable law, recipients shall not be required to provide a physician’s note or medical certification of a change in their medical condition in order to obtain a reassessment. An IHSS recipient may appeal the denial of a request for a reassessment, and CDSS will instruct the counties to notify recipients subject to a denial of that right to appeal. A recipient who appeals the denial of a reassessment will not have “aid-paid-pending” rights in such an appeal. A request for reassessment based solely on the reductions of authorized service hours identified in paragraphs 12 and 13 can be administratively denied, but is still subject to the right to appeal described above.
17. CDSS agrees to provide the information in the preceding paragraph to the counties through the provision of an All-County Letter (ACL). Plaintiffs will have the opportunity to review and comment on a draft of the ACL prior to finalization and distribution to the counties. CDSS also agrees to provide the information regarding reassessment and appeals in the preceding paragraph to recipients in the Notice of Action (NOA) regarding the 8 percent reduction in paragraph 12. Plaintiffs will have the opportunity to review and comment on a draft of the NOA prior to finalization and distribution to recipients.
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VI. STATE LEGISLATION REGARDING AN ASSESSMENT

18. The Parties agree to jointly discuss, and State Defendants will submit to the

Legislature, proposed legislation authorizing an assessment on home care services, including but

not limited to, home health care and IHSS (Assessment).

19. If the Assessment is passed by the Legislature, then State Defendants shall submit

a request by October 1, 2014, to the federal Centers for Medicare and Medicaid Services (CMS)

for authorization to implement the Assessment and shall work with Plaintiffs in good faith to

obtain CMS approval of this Assessment.

20. The Parties’ counsel shall meet and confer, in person or telephonically, regarding

the status of the Assessment in October 2013, March or April 2014, and August or September

2014. If the Assessment is not submitted to CMS by October 1, 2014, the Parties will discuss

next steps, and if a resolution is not reached, either Party may submit the dispute to the district

court for resolution and for fashioning appropriate remedies needed to facilitate the submission

of the Assessment to CMS for approval.

21. If the Assessment is approved by CMS, the general fund savings generated by the

Assessment revenues will offset the reduction in authorized service hours set forth in paragraph

13, up to 7 percent, as set forth Section 12YYY attached hereto as part of Exhibit A.

22. State Defendants will pursue retroactive implementation of the Assessment. If

CMS approves retroactive implementation of the Assessment, the one-time savings from that

retroactive implementation, as determined by the director of the Department of Finance, shall be

reinvested for the benefit of recipients. The Parties shall discuss how this reinvestment should

occur; however, the implementation of this reinvestment shall be subject to applicable legislative

approval.

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VII. OTHER STATE LEGISLATION 23. The Parties agree to jointly support passage by the Legislature of the legislation
attached in Exhibit A hereto (which includes the repeal of Cal. Welf. & Inst. Code §§ 12301.07, 12306.1(d)(6) & (d)(7), 12309(e)-(i), & 12309.2) as soon as possible, but no later than May 24, 2013. If this legislation is not enacted by June 1, 2013, or is enacted with substantive alteration (e.g., different percentage reductions than set forth in this Agreement), the Parties shall meet and confer to discuss next steps. If this legislation is not passed by the Legislature or is passed with substantive alteration, or is not delivered to the Governor by November 1, 2013, then the Parties shall meet and confer to determine whether they can agree upon a mutually acceptable solution. If the Parties cannot reach such agreement, at that time, any Party may declare the Agreement null and void.
24. The Parties agree to jointly support passage by the Legislature of legislation that would authorize the creation of an assessment such as described in Section VI. VIII. JOINT REQUEST FOR FEDERAL APPROVALS IF NECESSARY
25. The Parties agree to jointly support federal approvals, if any are necessary, to implement this Agreement. IX. DISTRICT COURT APPROVAL AND ENFORCEMENT OF SETTLEMENT
26. The Class Representatives agree to file on behalf of the certified classes in Oster and the amended class in Dominguez, and all other Parties agree to support, a motion with the district court to request a fairness hearing pursuant to Federal Rule of Civil Procedure 23(e) and to seek the district court’s preliminary and final approvals of this Agreement in Oster and Dominguez. The Parties will cooperate in presenting this Agreement to the district court at the fairness hearings and will take all steps necessary to seek and obtain the district court’s approval.
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If the district court withholds its approval of this Agreement or the settlement for any reason, the Parties shall meet and confer to determine whether this Agreement can be amended or modified in a manner so as to secure the district court’s approval. If this is not attained, this Agreement shall be null and void.
27. If the district court approves the Agreement but an appeal is filed, the Parties shall meet and confer to discuss opposing that appeal. If an appeal results in the district court’s approval of the Agreement being overturned, the parties shall meet and confer to discuss next steps.
28. The Parties agree to stipulate and request district court approval for a proposed schedule, attached as Exhibit B and incorporated into this agreement as if fully set forth herein. The proposed schedule assumes that the district court will not require individually mailed notice. The Parties agree to meet and confer to discuss alternate dates in the event that any portion of the proposed schedule becomes impracticable or is not approved by the district court.
29. The Class Representatives, on behalf of the certified classes in Oster and the amended class in Dominguez, will propose to the district court, and all Parties agree to support, that the Classes be notified of the proposed settlement as set forth in the Class Notice Plan contained in Exhibit C to this Agreement.
30. Following enactment of the legislative language referenced in Exhibit A, without substantive alteration, and final approval of the Settlement Agreement by the district court, the Parties agree to jointly move to dismiss all appeals in Oster and Dominguez within 30 days after enactment of the legislation set forth in Exhibit A.
31. Within 30 days of the date that the appeals have been dismissed and the legislation enacted, the Parties agree to ask the district court to enter final judgment dismissing
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the Oster and Dominguez actions as to State Defendants, ordering the Parties to comply with the

Agreement, and retaining jurisdiction to enforce the provisions of the Agreement and fashion

remedies in the event that a Party violates the Agreement. The district court shall retain

jurisdiction for 30 months after the date of CMS approval or disapproval of the Assessment. A

copy of each of the Final Judgments, that the Parties agree to ask the district court to enter, is

attached hereto as Exhibit D.

X. ATTORNEYS’ FEES AND COSTS

32. Each Party will bear its own attorneys’ fees and costs, and no attorneys’ fees or

costs against any Party shall be awarded in Oster, Dominguez, or any appeals therefrom, or any

action to enforce the terms of this Agreement.

XI. SCOPE OF AGREEMENT

33. Upon final approval of this Agreement pursuant to Federal Rule of Civil

Procedure 23(e), Plaintiffs hereby release any and all claims, damages, liabilities, rights, and

complaints against State Defendants asserted in Oster and/or Dominguez, except for any claims

for enforcement of this Agreement. Plaintiffs agree not to bring or support any lawsuit

challenging any provisions of this Agreement. Plaintiffs reserve and are not waiving the right to

challenge, on any ground including those previously asserted in Oster and Dominguez, any of the

following acts that may occur after this Agreement is signed: any state reductions in

participation in IHSS wages and/or state approval of wage reductions in IHSS wages; any state

reductions of IHSS hours, services, or eligibility other that those set forth in this Agreement; and

any due process challenge to State Defendants’ notices of action or provision of hearing rights in

relation to IHSS services, assessments, or reassessments other than those required by this

Agreement.

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XII. NO ADMISSION OF LIABILITY OR WAIVER OF RIGHTS

34. State Defendants expressly deny each and all of the claims and contentions

alleged against them in these actions. Plaintiffs expressly contend that all claims for relief in

these actions are meritorious. This Agreement, anything contained herein, and any negotiations

or proceedings hereunder shall not be construed as or deemed to be an admission, presumption,

evidence of, or concession by any State Defendant of the truth of any fact alleged or the validity

of any claim which has or could have been asserted in this action, or of the deficiency of any

defense which has or could have been asserted in this action or of any wrongdoing or liability

whatsoever.

35. This Agreement, the fact of its existence, and any term thereof shall not be

construed as an admission by any State Defendant, or used as evidence against any State

Defendant, in any civil, criminal, or administrative action or proceeding except to the extent

necessary to enforce claims for a breach of this Agreement.

XIII. EFFECTIVE DATE OF SETTLEMENT AGREEMENT

36. The effective date of this Agreement shall be 30 days from entry of final

approval of this Agreement pursuant to Federal Rule of Civil Procedure 23(e) in Oster and

Dominguez.

XIV. ADDITIONAL PROVISIONS

37. This Agreement contains all of the terms and conditions agreed upon by the

Parties hereto, and no oral agreement entered into at any time nor any written agreement entered

into prior to the execution of this Agreement regarding the subject matter of this Agreement shall

be deemed to exist, or to bind the Parties hereto, or to vary the terms and conditions contained

herein.

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38. This Agreement may only be amended, modified, or supplemented by an agreement in writing signed by all Parties and approved by the court specifying its intent to modify this Agreement.
39. The Parties agree to use their best efforts to carry out the terms of the Agreement. At no time shall any of the Parties seek to solicit or encourage members of the Settlement Class to submit objections to the Agreement or to appeal from the order giving final approval to the Agreement.
40. All Parties to this Agreement, through their respective counsel, have participated in its drafting and, consequently, any ambiguity shall not be construed for or against any party.
41. This Agreement shall inure to the benefit of and be binding upon the legal representatives and any successor of any party hereto.
42. Each of the undersigned attorneys represents that he or she has been duly authorized to enter into this Agreement.
43. Each signatory to this Agreement represents and warrants that he/she is authorized to sign this Agreement and bind the party on behalf of whom he/she signs.
44. This Agreement may be executed in counterparts, each of which will be deemed to be an original and all of which taken together shall constitute a single instrument. This Agreement may be executed by signature via facsimile transmission or electronic mail, which shall be deemed to be the same as an original signature.
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Dominguez Class Counsel and Oster Class Counsel

Dominguez Class Counsel

Oster Class Counsel

Stephen P. Berzon Altshuler Berzon LLP

Melinda Bird Disability Rights California

Scott A. Kronland Altshuler Berzon LLP

Marilyn Holle Disability Rights California

Stacey M. Leyton Altshuler Berzon LLP

Sujatha Jagadeesh Branch Disability Rights California

Peder J. Thoreen Altshuler Berzon LLP

Dara L. Schur Disability Rights California

Anne N. Arkush Altshuler Berzon LLP

Anna Rich National Senior Citizen Law Center

Paula Pearlman Disability Rights Legal Center

Charles Wolfinger Law Office of Charles Wolfinger

Jane Perkins National Health Law Program

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EXHIBIT A

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SEC. 1. Section 12301.01 is added to the Welfare and Institutions Code, to read:
12301.01. (a) (1) Notwithstanding any other provision of law, except as provided in subdivision (d), the department shall implement an eight (8) percent reduction in hours of service to each recipient of services under this article, which shall be applied to the recipient's hours as authorized pursuant to the most recent assessment. This reduction shall become effective July 1, 2013. This reduction shall be effective for 12 months. The reduction required by this section shall not preclude any reassessment to which a recipient would otherwise be entitled. However, hours authorized pursuant to a reassessment shall be subject to the 8 percent reduction required by this section.
(2) A request for reassessment based on the reduction required in paragraph (1) can be administratively denied by the county.
(3) A recipient of services under this article may direct the manner in which the reduction of hours is applied to the recipient's previously authorized services.
(4) For those individuals who have a documented unmet need, excluding protective supervision because of the limitations on authorized hours under Section 12303.4, the reduction shall be taken first from the documented unmet need.
(b) The reduction in hours of service pursuant to paragraph (1) of subdivision (a) shall cease to be implemented 12 months after the reduction takes effect.
(c) The notice of action informing the recipient of the reduction pursuant to subdivision (a) shall be mailed at least 10 days prior to the reduction going into effect. The notice of action shall be understandable to the recipient and translated into all languages spoken by a substantial number of the public served by the In-Home Supportive Services program, in accordance with Section 7295.2 of the Government Code. The notice shall not contain any recipient financial or confidential identifying information other than the recipient's name, address, and Case Management Information and Payroll System (CMIPS) client identification number, and shall include, but not be limited to, all of the following information:
(1) The aggregate number of authorized hours before the reduction pursuant to subdivision (a) and the aggregate number of authorized hours after the reduction.
(2) That the recipient may direct the manner in which the reduction of authorized hours is applied to the recipient's previously authorized services.
(3) A county shall assess a recipient's need for supportive service any time that the recipient notifies the county of a need to adjust the supportive services hours authorized, or when there are other indications or expectations of a change in circumstances affecting the recipient's need for supportive services. Counties shall not require recipients to submit a medical certification form or a doctor’s note to show evidence of a change in the recipient’s circumstances.
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(d) A recipient shall have all appeal rights otherwise provided for under Chapter 7 (commencing with Section 10950) of Part 2.
SEC. 2. Section 12301.02 is added to the Welfare and Institutions Code, to read:
12301.02. (a) (1) Notwithstanding any other provision of law, except as provided in subdivision (c), the department shall implement a seven (7) percent reduction in hours of service to each recipient of services under this article, which shall be applied to the recipient’s hours as authorized pursuant to the most recent assessment. This reduction shall become effective 12 months after the implementation of the reduction set forth in Section 12301.01. The reduction required by this section shall not preclude any reassessment to which a recipient would otherwise be entitled. However, hours authorized pursuant to a reassessment shall be subject to the 7 percent reduction required by this section.
(2) A request for reassessment based on the reduction required in paragraph (1) can be administratively denied by the county.
(3) A recipient of services under this article may direct the manner in which the reduction of hours is applied to the recipient's previously authorized services.
(4) For those individuals who have a documented unmet need, excluding protective supervision because of the limitations on authorized hours under Section 12303.4, the reduction shall be taken first from the documented unmet need.
(b) The notice of action informing the recipient of the reduction pursuant to subdivision (a) shall be mailed at least 20 days prior to the reduction going into effect. The notice of action shall be understandable to the recipient and translated into all languages spoken by a substantial number of the public served by the In-Home Supportive Services program, in accordance with Section 7295.2 of the Government Code. The notice shall not contain any recipient financial or confidential identifying information other than the recipient's name, address, and Case Management Information and Payroll System (CMIPS) client identification number, and shall include, but not be limited to, all of the following information:
(1) The aggregate number of authorized hours before the reduction pursuant to subdivision (a) and the aggregate number of authorized hours after the reduction.
(2) That the recipient may direct the manner in which the reduction of authorized hours is applied to the recipient's previously authorized services.
(3) A county shall assess a recipient's need for supportive service any time that the recipient notifies the county of a need to adjust the supportive services hours authorized, or when there are other indications or expectations of a change in circumstances affecting the recipient's need for supportive services. Counties shall not require recipients to submit a medical certification form or a doctor’s note to show evidence of a change in the recipient’s circumstances.
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(c) A recipient shall have all appeal rights otherwise provided for under Chapter 7 (commencing with Section 10950) of Part 2.
(d) The reduction specified in paragraph (1) of subdivision (a) shall be ongoing and may be adjusted pursuant to Section 12YYY.
SEC. 3. Section 12YYY is added to the Welfare and Institutions Code, to read:
12YYY. (a) It is the intent of this Section to offset the reductions described in Section 12301.02 to the extent that an assessment as described in Section 12XXX provides General Fund savings. This section shall become operative only upon the certification by the Department of Health Care Services as described in of Section 12XXX.
(b) Within 30 days after receipt of the certification described in 12XXX, the Director of Finance shall perform the obligations described in this subdivision for the fiscal year in which the certification is received and for the following fiscal year. Specifically, the Director of Finance shall:
(1) Estimate the total amount of additional funding, less refunds, that will be derived from the assessment for the next fiscal year.
(2) Estimate the amount of the total revenues, if any, that are attributable to any permitted retroactive implementation of the assessment.
(3) Estimate the amount of the total General Fund savings generated by the assessment revenues that remain after taking into account reductions such as the revenues attributable to any retroactive application of the assessment that will be allocated pursuant to section 12ZZZ, and any General Fund costs associated with establishment and administration of the assessment.
(4) Calculate, as a percentage, the amount by which the reduction described in section 12301.02 is offset by General Fund savings. In making this calculation the Director of Finance shall estimate the amount of the reduction that may be partially or completely offset. If the estimated General Fund savings from the assessment are less than the amount required to fully offset the reduction pursuant to Section 12301.02, then the percentage offset shall be proportionate to the level of General Fund savings. At no point may the reduction pursuant to Section 12301.02 become negative or go below zero.
(5) Notify the Joint Legislative Budget Committee of the determinations made in paragraphs (1)-(4).
(c) On or before May 14, prior to the third fiscal year after the certification described in 14XXX is received, the Director of Finance shall perform the activities described in paragraphs (1)-(5) of subdivision (b).
(d) Within 10 days of the effective date of any federal change or action that prevents or reduces the amount of General Fund savings received from the assessment, the Director of Health Care Services shall provide a notification to the Joint Legislative Budget Committee and the Director
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of Finance of such a change. Within 30 days of the receipt of this notification, the Director of Finance shall perform the activities described in paragraphs (1)-(5) of subdivision (b).
(e) Notwithstanding any provision of Section 12301.02, the reduction of services required by Section 12301.02 shall be mitigated by the percentage offset determined by the Director of Finance in paragraph (4) of subdivision (b) of this Section.
(f)(1) Any change in the percentage reduction of services as provided in Section 12301.02 shall occur on the first day of the first full month occurring 30 days after the determination provided for in subdivision (b) is made by the Director of Finance.
(2) Any change in the percentage reduction of services as provided in Section 12301.02 due to a determination of the Director of Finance required by subdivision (c) shall occur on July 1 of the fiscal year immediately following the determination.
(3) If a change in the percentage reduction of services as provided in Section 12301.02 is triggered based on a determination of the Director of Finance required by subdivision (d), that change in hours of service shall occur on July 1 after the notification referenced in subdivision (d) from the Director of Health Care Services is received, if the notification is received between the preceding September 30 and January 2. If the notification is received on any other date, then a change in hours shall occur on the first of the month that is nine months after the notification is received.
(g) In preparation of every Governor’s Budget and for every May Revision the Director of Finance shall perform the obligation described in paragraph (1)-(3) of subdivision (b).
SEC. 4 Section 12ZZZ is added to the Welfare and Institutions Code, to read:
12ZZZ. (a) There is hereby created in the State Treasury an In-Home Supportive Services Reinvestment Fund (“Fund”), which shall receive monies to the extent that an assessment described in Section 12XXX is implemented retroactively.
(b) The Fund shall be used to provide goods or services for one-time direct reinvestments benefiting IHSS recipients.
(c) The Fund shall be used in a manner that does not create ongoing General Fund obligations.
(d) Pursuant to 12YYY, the Director of the Department of Finance shall estimate the amount of retroactive fee due to the Fund. In each fiscal year for which there are estimated retroactive revenues, the Director of Finance shall provide the State Controller a schedule of what portion of the fee shall be deposited in the Fund.
(e) Notwithstanding Government Code Section 13340, the Fund is continuously appropriated to the Department of Social Services to be reinvested, following consultation with plaintiffs in the lawsuits identified below, for the benefit of IHSS recipients in compliance with the requirements in this section and those in the settlement agreement pertaining to Oster v. Lightbourne, N.D.
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Cal., Case No. CV 09-04668 CW, U.S. Court of Appeals for the Ninth Circuit, Case No. 1215366; and Dominguez v. Brown, N.D. Cal., Case No. CV 09-02306 CW, U.S. Court of Appeals for the Ninth Circuit, Case No. 09-16359. At least thirty days prior to allocating any funds pursuant to this section, the Department of Social Services shall provide an expenditure plan to the Joint Legislative Budget Committee.
SEC. 5. Section 12301.07 of the Welfare and Institutions Code is repealed.
12301.07. (a) (1) Notwithstanding any other provision of law, if subdivision (b) of Section 3.94 of the Budget Act of 2011 is operative, the department shall implement a 20-percent reduction in authorized hours of service to each in-home supportive services recipient as specified in this section, effective January 1, 2012, which shall be applied to the recipient's hours as authorized pursuant to his or her most recent assessment.
(2) The reduction required by this section shall not preclude any reassessment to which a recipient would otherwise be entitled. However, hours authorized pursuant to a reassessment shall be subject to the reduction required by this section.
(3) For those recipients who have a documented unmet need, excluding protective supervision, because of the limitations contained in Section 12303.4, this reduction shall be applied first to the unmet need before being applied to the authorized hours. If the recipient believes he or she will be at serious risk of out-of-home placement as a consequence of the reduction, the recipient may apply for a restoration of the reduction of authorized service hours, pursuant to subdivision (f).
(4) A recipient of services under this article may direct the manner in which the reduction of hours is applied to the recipient's previously authorized services.
(5) The reduction in service hours made pursuant to paragraph (1) shall not apply to in-home supportive services recipients who also receive services under Section 9560, subdivision (t) of Section 14132, and Section 14132.99.
(b) The department shall work with the counties to develop a process to allow for counties to preapprove IHSS Care Supplements described in subdivision (f), to the extent that the process is permissible under federal law. The preapproval process shall be subject to the following conditions:
(1) The preapproval process shall rely on the criteria for assessing IHSS Care Supplement applications, developed pursuant to subdivision (f).
(2) Preapproval shall be granted only to individuals who would otherwise be granted a full restoration of their hours pursuant to
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subdivision (f). (3) With respect to existing recipients as of the effective date
of this section, all efforts shall be made to ensure that counties complete the process on or before a specific date, as determined by the department, in consultation with counties in order to allow for the production, printing, and mailing of notices to be issued to remaining recipients who are not granted preapproval and who thereby are subject to the reduction pursuant to this section.
(4) The department shall work with counties to determine how to apply a preapproval process with respect to new applicants to the IHSS program who apply after the effective date of this section.
(c) The notice of action informing each recipient who is not preapproved for an IHSS Care Supplement pursuant to subdivision (b) shall be mailed at least 15 days prior to the reduction going into effect. The notice of action shall be understandable to the recipient and translated into all languages spoken by a substantial number of the public served by the In-Home Supportive Services program, in accordance with Section 7295.2 of the Government Code. The notice shall not contain any recipient financial or confidential identifying information other than the recipient's name, address, and Case Management Information and Payroll System (CMIPS) client identification number, and shall include, but not be limited to, all of the following information:
(1) The aggregate number of authorized hours before the reduction pursuant to paragraph (1) of subdivision (a) and the aggregate number of authorized hours after the reduction.
(2) That the recipient may direct the manner in which the reduction of authorized hours is applied to the recipient's previously authorized services.
(3) How all or part of the reduction may be restored, as set forth in subdivision (f), if the recipient believes he or she will be at serious risk of out-of-home placement as a consequence of the reduction.
(d) The department shall inform providers of any reduction to recipient hours through a statement on provider timesheets, after consultation with counties.
(e) The IHSS Care Supplement application process described in subdivision (f) shall be completed before a request for a state hearing is submitted. If the IHSS Care Supplement application is filed within 15 days of the notice of action required by subdivision (c), or before the effective date of the reduction, the recipient shall be eligible for aid paid pending. A revised notice of action shall be issued by the county following evaluation of the IHSS Care Supplement application.
(f) (1) Any aged, blind, or disabled individual who is eligible for services under this article who receives a notice of action
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indicating that his or her services will be reduced under subdivision (a) but who believes he or she is at serious risk of out-of-home placement unless all or part of the reduction is restored may submit an IHSS Care Supplement application. When a recipient submits an IHSS Care Supplement application within 15 days of receiving the reduction notice or prior to the implementation of the reduction, the recipient's in-home supportive services shall continue at the level authorized by the most recent assessment, prior to any reduction, until the county finds that the recipient does or does not require restoration of any hours through the IHSS Care Supplement. If the recipient disagrees with the county's determination concerning the need for the IHSS Care Supplement, the recipient may request a hearing on that determination.
(2) The department shall develop an assessment tool, in consultation with stakeholders, to be used by the counties to determine if a recipient is at serious risk of out-of-home placement as a consequence of the reduction of services pursuant to this section. The assessment tool shall be developed utilizing standard of care criteria for relevant out-of-home placements that serve individuals who are aged, blind, or who have disabilities and who would qualify for IHSS if living at home, including, but not limited to, criteria set forth in Chapter 7.0 of the Manual of Criteria for Medi-Cal Authorization published by the State Department of Health Care Services, as amended April 15, 2004, and the IHSS uniform assessment guidelines.
(3) Counties shall give a high priority to prompt screening of persons specified in this section to determine their need for an IHSS Care Supplement.
(g) (1) Notwithstanding the rulemaking provisions of the Administrative Procedure Act (Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code), the department may implement and administer this section through all-county letters or similar instruction from the department until regulations are adopted. The department shall adopt emergency regulations implementing this section no later than March 1, 2013. The department may readopt any emergency regulation authorized by this section that is the same as or substantially equivalent to an emergency regulation previously adopted under this section.
(2) The initial adoption of emergency regulations implementing this section and one readoption of emergency regulations authorized by this subdivision shall be deemed an emergency and necessary for the immediate preservation of the public peace, health, safety, or general welfare. Initial emergency regulations and the one readoption of emergency regulations authorized by this section shall be exempt from review by the Office of Administrative Law. The initial emergency regulations and the one readoption of emergency regulations
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authorized by this section shall be submitted to the Office of Administrative Law for filing with the Secretary of State and each shall remain in effect for no more than 180 days, by which time final regulations may be adopted.
(h) If the Director of Health Care Services determines that federal approval is necessary to implement this section, this section shall be implemented only after any state plan amendments required pursuant to Section 14132.95 are approved.
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Operative if CCI is Operative
SEC. 6. Section 12306.1 of the Welfare and Institutions Code is amended to read:
12306.1. (a) When any increase in provider wages or benefits is negotiated or agreed to by a public authority or nonprofit consortium under Section 12301.6, then the county shall use county-only funds to fund both the county share and the state share, including employment taxes, of any increase in the cost of the program, unless otherwise provided for in the annual Budget Act or appropriated by statute. No increase in wages or benefits negotiated or agreed to pursuant to this section shall take effect unless and until, prior to its implementation, the department has obtained the approval of the State Department of Health Care Services for the increase pursuant to a determination that it is consistent with federal law and to ensure federal financial participation for the services under Title XIX of the federal Social Security Act, and unless and until all of the following conditions have been met:
(1) Each county has provided the department with documentation of the approval of the county board of supervisors of the proposed public authority or nonprofit consortium rate, including wages and related expenditures. The documentation shall be received by the department before the department and the State Department of Health Care Services may approve the increase.
(2) Each county has met department guidelines and regulatory requirements as a condition of receiving state participation in the rate.
(b) Any rate approved pursuant to subdivision (a) shall take effect commencing on the first day of the month subsequent to the month in which final approval is received from the department. The department may grant approval on a conditional basis, subject to the availability of funding.
(c) The state shall pay 65 percent, and each county shall pay 35 percent, of the nonfederal share of wage and benefit increases negotiated by a public authority or nonprofit consortium pursuant to Section 12301.6 and associated employment taxes, only in accordance with subdivisions (d) to (f), inclusive.
(d) (1) The state shall participate as provided in subdivision (c) in wages up to seven dollars and fifty cents ($7.50) per hour and individual health benefits up to sixty cents ($0.60) per hour for all public authority or nonprofit consortium providers. This paragraph shall be operative for the 2000-01 fiscal year and each year thereafter unless otherwise provided in paragraphs (2), (3), (4), and (5), and without regard to when the wage and benefit increase becomes effective.
(2) The state shall participate as provided in subdivision (c) in
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a total of wages and individual health benefits up to nine dollars and ten cents ($9.10) per hour, if wages have reached at least seven dollars and fifty cents ($7.50) per hour. Counties shall determine, pursuant to the collective bargaining process provided for in subdivision (c) of Section 12301.6, what portion of the nine dollars and ten cents ($9.10) per hour shall be used to fund wage increases above seven dollars and fifty cents ($7.50) per hour or individual health benefit increases, or both. This paragraph shall be operative for the 2001-02 fiscal year and each fiscal year thereafter, unless otherwise provided in paragraphs (3), (4), and (5).
(3) The state shall participate as provided in subdivision (c) in a total of wages and individual health benefits up to ten dollars and ten cents ($10.10) per hour, if wages have reached at least seven dollars and fifty cents ($7.50) per hour. Counties shall determine, pursuant to the collective bargaining process provided for in subdivision (c) of Section 12301.6, what portion of the ten dollars and ten cents ($10.10) per hour shall be used to fund wage increases above seven dollars and fifty cents ($7.50) per hour or individual health benefit increases, or both. This paragraph shall be operative commencing with the next state fiscal year for which the May Revision forecast of General Fund revenue, excluding transfers, exceeds by at least 5 percent, the most current estimate of revenue, excluding transfers, for the year in which paragraph (2) became operative.
(4) The state shall participate as provided in subdivision (c) in a total of wages and individual health benefits up to eleven dollars and ten cents ($11.10) per hour, if wages have reached at least seven dollars and fifty cents ($7.50) per hour. Counties shall determine, pursuant to the collective bargaining process provided for in subdivision (c) of Section 12301.6, what portion of the eleven dollars and ten cents ($11.10) per hour shall be used to fund wage increases or individual health benefits, or both. This paragraph shall be operative commencing with the next state fiscal year for which the May Revision forecast of General Fund revenue, excluding transfers, exceeds by at least 5 percent, the most current estimate of revenues, excluding transfers, for the year in which paragraph (3) became operative.
(5) The state shall participate as provided in subdivision (c) in a total cost of wages and individual health benefits up to twelve dollars and ten cents ($12.10) per hour, if wages have reached at least seven dollars and fifty cents ($7.50) per hour. Counties shall determine, pursuant to the collective bargaining process provided for in subdivision (c) of Section 12301.6, what portion of the twelve dollars and ten cents ($12.10) per hour shall be used to fund wage increases above seven dollars and fifty cents ($7.50) per hour or individual health benefit increases, or both. This paragraph shall be operative commencing with the next state fiscal year for which the
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May Revision forecast of General Fund revenue, excluding transfers, exceeds by at least 5 percent, the most current estimate of revenues, excluding transfers, for the year in which paragraph (4) became operative.
(6) Notwithstanding paragraphs (2) to (5), inclusive, the state shall participate as provided in subdivision (c) in a total cost of wages up to nine dollars and fifty cents ($9.50) per hour and in individual health benefits up to sixty cents ($0.60) per hour. This paragraph shall become operative on July 1, 2009.
(7) (A) The Legislature finds and declares that injunctions issued by the courts have prevented the state from implementing the changes described in paragraph (6) during the pendency of litigation. To avoid confusion for providers, recipients, and other stakeholders, it is therefore the intent of the Legislature to temporarily suspend the reductions described in that paragraph until July 1, 2012, to allow the litigation to reach a final result.
(B) Paragraph (6) shall not be implemented until July 1, 2012, and as of that date shall only be implemented if a court of competent jurisdiction has issued an order, that is not subject to appeal or for which the time to appeal has expired, upholding its validity.
(e) (1) On or before May 14 immediately prior to the fiscal year for which state participation is provided under paragraphs (2) to (5), inclusive, of subdivision (d), the Director of Finance shall certify to the Governor, the appropriate committees of the Legislature, and the department that the condition for each subdivision to become operative has been met.
(2) For purposes of certifications under paragraph (1), the General Fund revenue forecast, excluding transfers, that is used for the relevant fiscal year shall be calculated in a manner that is consistent with the definition of General Fund revenues, excluding transfers, that was used by the Department of Finance in the 2000-01 Governor's Budget revenue forecast as reflected on Schedule 8 of the Governor's Budget.
(f) Any increase in overall state participation in wage and benefit increases under paragraphs (2) to (5), inclusive, of subdivision (d), shall be limited to a wage and benefit increase of one dollar ($1) per hour with respect to any fiscal year. With respect to actual changes in specific wages and health benefits negotiated through the collective bargaining process, the state shall participate in the costs, as approved in subdivision (c), up to the maximum levels as provided under paragraphs (2) to (5)(6), inclusive, of subdivision (d).
(g) For the period during which Section 12306.15 is operative, each county's share of the costs of negotiated wage and benefit increases specified in subdivision (c) shall remain, but the County IHSS Maintenance of Effort pursuant to Section 12306.15 shall be in
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lieu of that share. (h) This section shall become inoperative only if Chapter 45 of
the Statutes of 2012 is deemed inoperative pursuant to Section 15 of that chapter.
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Operative if CCI is Inoperative
SEC. 7. Section 12306.1 of the Welfare and Institutions Code is amended to read:
12306.1. (a) When any increase in provider wages or benefits is negotiated or agreed to by a public authority or nonprofit consortium under Section 12301.6, then the county shall use county-only funds to fund both the county share and the state share, including employment taxes, of any increase in the cost of the program, unless otherwise provided for in the annual Budget Act or appropriated by statute. No increase in wages or benefits negotiated or agreed to pursuant to this section shall take effect unless and until, prior to its implementation, the department has obtained the approval of the State Department of Health Care Services for the increase pursuant to a determination that it is consistent with federal law and to ensure federal financial participation for the services under Title XIX of the federal Social Security Act, and unless and until all of the following conditions have been met:
(1) Each county has provided the department with documentation of the approval of the county board of supervisors of the proposed public authority or nonprofit consortium rate, including wages and related expenditures. The documentation shall be received by the department before the department and the State Department of Health Care Services may approve the increase.
(2) Each county has met department guidelines and regulatory requirements as a condition of receiving state participation in the rate.
(b) Any rate approved pursuant to subdivision (a) shall take effect commencing on the first day of the month subsequent to the month in which final approval is received from the department. The department may grant approval on a conditional basis, subject to the availability of funding.
(c) The state shall pay 65 percent, and each county shall pay 35 percent, of the nonfederal share of wage and benefit increases negotiated by a public authority or nonprofit consortium pursuant to Section 12301.6 and associated employment taxes, only in accordance with subdivisions (d) to (f), inclusive.
(d) (1) The state shall participate as provided in subdivision (c) in wages up to seven dollars and fifty cents ($7.50) per hour and individual health benefits up to sixty cents ($0.60) per hour for all public authority or nonprofit consortium providers. This paragraph shall be operative for the 2000-01 fiscal year and each year thereafter unless otherwise provided in paragraphs (2), (3), (4), and (5), and without regard to when the wage and benefit increase becomes effective.
(2) The state shall participate as provided in subdivision (c) in
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a total of wages and individual health benefits up to nine dollars and ten cents ($9.10) per hour, if wages have reached at least seven dollars and fifty cents ($7.50) per hour. Counties shall determine, pursuant to the collective bargaining process provided for in subdivision (c) of Section 12301.6, what portion of the nine dollars and ten cents ($9.10) per hour shall be used to fund wage increases above seven dollars and fifty cents ($7.50) per hour or individual health benefit increases, or both. This paragraph shall be operative for the 2001-02 fiscal year and each fiscal year thereafter, unless otherwise provided in paragraphs (3), (4), and (5).
(3) The state shall participate as provided in subdivision (c) in a total of wages and individual health benefits up to ten dollars and ten cents ($10.10) per hour, if wages have reached at least seven dollars and fifty cents ($7.50) per hour. Counties shall determine, pursuant to the collective bargaining process provided for in subdivision (c) of Section 12301.6, what portion of the ten dollars and ten cents ($10.10) per hour shall be used to fund wage increases above seven dollars and fifty cents ($7.50) per hour or individual health benefit increases, or both. This paragraph shall be operative commencing with the next state fiscal year for which the May Revision forecast of General Fund revenue, excluding transfers, exceeds by at least 5 percent, the most current estimate of revenue, excluding transfers, for the year in which paragraph (2) became operative.
(4) The state shall participate as provided in subdivision (c) in a total of wages and individual health benefits up to eleven dollars and ten cents ($11.10) per hour, if wages have reached at least seven dollars and fifty cents ($7.50) per hour. Counties shall determine, pursuant to the collective bargaining process provided for in subdivision (c) of Section 12301.6, what portion of the eleven dollars and ten cents ($11.10) per hour shall be used to fund wage increases or individual health benefits, or both. This paragraph shall be operative commencing with the next state fiscal year for which the May Revision forecast of General Fund revenue, excluding transfers, exceeds by at least 5 percent, the most current estimate of revenues, excluding transfers, for the year in which paragraph (3) became operative.
(5) The state shall participate as provided in subdivision (c) in a total cost of wages and individual health benefits up to twelve dollars and ten cents ($12.10) per hour, if wages have reached at least seven dollars and fifty cents ($7.50) per hour. Counties shall determine, pursuant to the collective bargaining process provided for in subdivision (c) of Section 12301.6, what portion of the twelve dollars and ten cents ($12.10) per hour shall be used to fund wage increases above seven dollars and fifty cents ($7.50) per hour or individual health benefit increases, or both. This paragraph shall be operative commencing with the next state fiscal year for which the
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May Revision forecast of General Fund revenue, excluding transfers, exceeds by at least 5 percent, the most current estimate of revenues, excluding transfers, for the year in which paragraph (4) became operative.
(6) Notwithstanding paragraphs (2) to (5), inclusive, the state shall participate as provided in subdivision (c) in a total cost of wages up to nine dollars and fifty cents ($9.50) per hour and in individual health benefits up to sixty cents ($0.60) per hour. This paragraph shall become operative on July 1, 2009.
(7) (A) The Legislature finds and declares that injunctions issued by the courts have prevented the state from implementing the changes described in paragraph (6) during the pendency of litigation. To avoid confusion for providers, recipients, and other stakeholders, it is therefore the intent of the Legislature to temporarily suspend the reductions described in that paragraph until July 1, 2012, to allow the litigation to reach a final result.
(B) Paragraph (6) shall not be implemented until July 1, 2012, and as of that date shall only be implemented if a court of competent jurisdiction has issued an order, that is not subject to appeal or for which the time to appeal has expired, upholding its validity.
(e) (1) On or before May 14 immediately prior to the fiscal year for which state participation is provided under paragraphs (2) to (5), inclusive, of subdivision (d), the Director of Finance shall certify to the Governor, the appropriate committees of the Legislature, and the department that the condition for each subdivision to become operative has been met.
(2) For purposes of certifications under paragraph (1), the General Fund revenue forecast, excluding transfers, that is used for the relevant fiscal year shall be calculated in a manner that is consistent with the definition of General Fund revenues, excluding transfers, that was used by the Department of Finance in the 2000-01 Governor's Budget revenue forecast as reflected on Schedule 8 of the Governor's Budget.
(f) Any increase in overall state participation in wage and benefit increases under paragraphs (2) to (5), inclusive, of subdivision (d), shall be limited to a wage and benefit increase of one dollar ($1) per hour with respect to any fiscal year. With respect to actual changes in specific wages and health benefits negotiated through the collective bargaining process, the state shall participate in the costs, as approved in subdivision (c), up to the maximum levels as provided under paragraphs (2) to (5)(6), inclusive, of subdivision (d).
(g) This section shall become operative only if Chapter 45 of the Statutes of 2012 is deemed inoperative pursuant to Section 15 of that chapter.
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SEC.8. Section 12309 of the Welfare and Institutions Code is amended to read:
12309. (a) In order to assure that in-home supportive services are delivered in all counties in a uniform manner, the department shall develop a uniform needs assessment tool.
(b) (1) Each county shall, in administering this article, use the uniform needs assessment tool developed pursuant to subdivision (a) in collecting and evaluating information.
(2) For purposes of paragraph (1), "information" includes, but is not limited to, all of the following:
(A) The recipient's living environment. (B) Alternative resources. (C) The recipient's functional abilities. (c) (1) The uniform needs assessment tool developed pursuant to subdivision (a) shall evaluate the recipient's functioning in activities of daily living and instrumental activities of daily living. (2) The recipient's functioning shall be quantified, using the general hierarchical five-point scale for ranking each function, as specified in subdivision (d). (d) The recipient's functioning ranks shall be as follows: (1) Rank one. A recipient's functioning shall be classified as rank one if his or her functioning is independent, and he or she is able to perform the function without human assistance, although the recipient may have difficulty in performing the function, but the completion of the function, with or without a device or mobility aid, poses no substantial risk to his or her safety. (2) Rank two. A recipient's functioning shall be classified as rank two if he or she is able to perform a function, but needs verbal assistance, such as reminding, guidance, or encouragement. (3) Rank three. A recipient's functioning shall be classified as rank three if he or she can perform the function with some human assistance, including, but not limited to, direct physical assistance from a provider. (4) Rank four. A recipient's functioning shall be classified as rank four if he or she can perform a function, but only with substantial human assistance. (5) Rank five. A recipient's functioning shall be classified as rank five if he or she cannot perform the function, with or without human assistance. (e) (1) Notwithstanding any other law, and effective September 1, 2009, individuals shall be eligible for each domestic or related service only if assessed at a rank four or five, as defined in subdivision (d), in the activity of daily living relating to that service. The activities of daily living that relate to domestic and related services are defined in regulations and include housework,
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laundry, shopping and errands, meal preparation, and meal cleanup. The rank for each domestic and related service shall be determined based on an assessment of need for supportive services by the county, in accordance with this section and the hourly task guidelines as defined by Section 12301.2. This paragraph does not apply to individuals meeting one of the conditions specified in paragraph (2).
(2) Paragraph (1) shall not apply to individuals authorized to receive either protective supervision pursuant to subdivision (b) of Section 12300 and Section 12301.21 or paramedical services pursuant to Section 12300.1, or to individuals authorized to receive over 120 hours of services per month.
(3) To the extent necessary to maintain federal financial participation, the director may waive any or all of the provisions of paragraph (2), after consultation with the State Department of Health Care Services.
(f) A recipient shall be assigned a functional index score. The functional index score for a recipient shall be a weighted average based on the individual functional index rankings, as described in subdivision (d), to provide a single measure of a recipient's relative dependence on human assistance for performance of activities of daily living that are used in the assessment of services provided pursuant to this article.
(g) (1) Notwithstanding the rulemaking provisions of the Administrative Procedure Act (Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code) the department may implement and administer this section through all-county letters or similar instruction from the department until regulations are adopted. The department shall adopt emergency regulations implementing this section no later than July 1, 2010. The department may readopt any emergency regulation authorized by this section that is the same as or substantially equivalent to an emergency regulation previously adopted under this section.
(2) The initial adoption of emergency regulations implementing this section and one readoption of emergency regulations shall be deemed an emergency and necessary for the immediate preservation of the public peace, health, safety, or general welfare. Initial emergency regulations and the one readoption of emergency regulations authorized by this subdivision shall be exempt from review and approval by the Office of Administrative Law. The initial emergency regulations and the one readoption of emergency regulations authorized by this subdivision shall be submitted to the Office of Administrative Law for filing with the Secretary of State and each shall remain in effect for no more than 180 days, by which time final regulations may be adopted.
(h) Subdivisions (e), (f), and (g) shall become operative on September 1, 2009.
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(i) (1) The Legislature finds and declares that injunctions issued by the courts have prevented the state from implementing the changes described in subdivisions (e), (f), and (g) during the pendency of litigation. To avoid confusion for providers, recipients, and other stakeholders, it is therefore the intent of the Legislature to temporarily suspend the reductions described in those subdivisions until July 1, 2012, to allow the litigation to reach a final result.
(2) Notwithstanding subdivision (h) or any other provision of law, subdivisions (e), (f), and (g) shall not be implemented until July 1, 2012, and as by that date shall only be implemented if a court of competent jurisdiction has issued an order, that is not subject to appeal or for which the time to appeal has expired, upholding their validity.
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SEC. 9. Section 12309.2 of the Welfare and Institutions Code is repealed:
12309.2. (a) Notwithstanding any other law, except as provided in subdivision (b), and pursuant to subdivision (e) of Section 12309, and effective September 1, 2009, eligibility for in-home supportive services provided pursuant to Article 7 (commencing with Section 12300) of Chapter 3 shall also include functional index scores calculated pursuant to subdivision (f) of Section 12309, as follows:
(1) Individuals with a functional index score of 2.0 and above shall be eligible to receive all appropriate in-home supportive services provided pursuant to this article.
(2) Individuals with a functional index score below 2.0 shall not be eligible for any in-home supportive services provided pursuant to this article.
(3) Paragraph (2) shall not apply to individuals authorized to receive protective supervision pursuant to subdivision (b) of Section 12300 and Section 12301.21 or paramedical services pursuant to Section 12300.1, or to individuals authorized to receive over 120 hours of services per month pursuant to Section 12301.2.
(4) To the extent necessary to maintain federal financial participation, the director may waive any or all of the provisions of paragraph (3), after consultation with the State Department of Health Care Services.
(b) The department shall modify the notice of action forms to inform individuals whose hours are reduced or for whom eligibility is eliminated by the changes made to Section 12309 or this section by the act adding this section of their functional rank and functional index score. The form shall be modified no later than September 1, 2009.
(c) (1) Notwithstanding the rulemaking provisions of the Administrative Procedure Act, Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code, the department may implement and administer this section through all-county letters or similar instruction from the department until regulations are adopted. The department shall adopt emergency regulations implementing this section no later than July 1, 2010. The department may readopt any emergency regulation authorized by this section that is the same as or substantially equivalent to an emergency regulation previously adopted under this section.
(2) The initial adoption of emergency regulations implementing this section and the one readoption of emergency regulations authorized by this subdivision shall be deemed an emergency and necessary for the immediate preservation of the public peace, health, safety, or general welfare. Initial emergency regulations and the one readoption of emergency regulations authorized by this section shall be exempt from review and approval by the Office of
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Administrative Law. The initial emergency regulations and the one readoption of emergency regulations authorized by this section shall be submitted to the Office of Administrative Law for filing with the Secretary of State and each shall remain in effect for no more than 180 days, by which time final regulations may be adopted.
(d) This section shall become operative on September 1, 2009. (e) (1) The Legislature finds and declares that injunctions issued by the courts have prevented the state from implementing the changes described in this section during the pendency of litigation. To avoid confusion for providers, recipients, and other stakeholders, it is therefore the intent of the Legislature to temporarily suspend the reductions described in this section until July 1, 2012, to allow the litigation to reach a final result. (2) Notwithstanding subdivision (d) or any other provision of law, this section shall not be implemented until July 1, 2012, and as of that date shall only be implemented if a court of competent jurisdiction has issued an order, that is not subject to appeal or for which the time to appeal has expired, upholding its validity.
SEC. 10. Notwithstanding Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code, the Department of Health Care Services and the Department of Social Services, without taking any further regulatory action, shall implement, interpret, or make specific this act by means of all-county letters, plan letters, plan or provider bulletins, or similar instructions.
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EXHIBIT B

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Proposed Schedule re Court Approval of Settlement and Implementation of 8% Reduction1

July 1

Implementation of 8% reduction

June 10

Notices (NOA) to IHSS Recipients re 8% reduction begin to roll out May 23 Hearing re Final Approval of Settlement (sooner if court will agree)

May 10

Parties to respond to objections; Plaintiffs to file Motion for Final Approval

May 9

Deadline for finalizing NOA [Draft NOA to be circulated to plaintiffs sometime in April]

May 9

Deadline for finalizing ACL

May 24

Legislation re 8% reduction from July 1, 2013-June 30, 2014; 7% reduction July 1, 2014-ongoing subject to trigger (necessary to provide recipients with notice by June 20); repeal of challenged statutes

May 3

Objections due

April 5

Notice to Class

April 4

Hearing re Motion for Preliminary Approval

March 28 File Motion for Preliminary Approval

1 Presuming not individual notice.

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EXHIBIT C

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NOTICE OF IHSS CLASS ACTION SETTLEMENTS
This notice is about the proposed settlements of two class action lawsuits. It is about In-Home Supportive Services (IHSS).
ABOUT THE LAWSUITS
In 2009, the State of California passed a law to stop all IHSS services to about 30,000 people. The law would have cut hours for help with meals, house cleaning and other home care to another 100,000 people. In 2011, the state passed another law to cut IHSS hours by 20% for many more people. (Some recipients might have been able to get their hours back if they could prove they were at serious risk of out of home placement.)
David Oster and other IHSS recipients, as well as labor unions for IHSS workers, filed a lawsuit about these cuts in IHSS hours. The defendants are state officials. The lawsuit is called Oster.
In 2009, the State also passed a law to cut funding when an IHSS worker makes more than $9.50 per hour.
IHSS recipients and labor unions for IHSS workers filed a lawsuit about the wage cuts. The defendants are state officials. The lawsuit is called Dominguez.
A court in Oakland temporarily stopped the cuts in both cases in 2009 and 2011. The State asked higher courts to let it go ahead with the IHSS cuts. No one can tell how the higher courts might rule. No one can tell if the court in Oakland would stop the cuts forever.
ABOUT THE SETTLEMENTS
The state has agreed to get rid of the IHSS cuts from 2009 and 2011. These cuts will never go into effect.
 There will be no 20% cut in IHSS hours. There will be a one-year cut of 8% starting around July 1, 2013. This is a cut of 4.4% below current hours because there is already a cut of 3.6% that is not part of these lawsuits. (3.6% + 4.4% = 8%).
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 Around July 2014 the cut in IHSS hours go down to 7%. This is a cut of 3.4% on top of the 3.6% current cut.
 You can ask the county for extra hours if your circumstances change.  There will be no cuts in State funding for IHSS wages.

The State agreed to ask the federal government for extra money for the IHSS program from a new assessment. The State could end the 7% cut as early as 2015 if this is allowed.

These are class action lawsuits. You are a class member in the Oster case if you would have gotten a notice of action about IHSS cuts in 2009 or 2011. You are a class member in the Dominguez case if you get IHSS and live in any of these counties:

Alameda. Los Angeles. Mendocino. Riverside. San Joaquin. Santa Clara. Yolo.

Calaveras. Madera. Monterey. Sacramento. San Luis Obispo. Santa Cruz. Yuba.

Contra Costa. Marin. Napa. San Benito. San Mateo. Solano.

Fresno. Mariposa. Placer. San Francisco. Santa Barbara. Sonoma.

As part of the settlements, class members in the two cases cannot file a lawsuit about the 8% or 7% cuts.

IF YOU WANT MORE DETAILS:

There are different sets of lawyers representing IHSS class members in the Oster case and in the Dominguez case. Together they are called the IHSS Settlement Lawyers. You can get a list of these lawyers, a copy of the settlement agreement and more details about the settlements from your county welfare office. You can also get details from your county public authority. You can also get details from these websites: www.disabilityrightsca.org, www.altshulerberzon.com, www.DHCS.gov, and www.CDSS.gov.

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To ask questions about the settlements or this notice, you can: (1) Leave a message for the IHSS Settlement Lawyers at 1-800XXXXXXX. (2) Send a letter to the IHSS Settlement Lawyers at P.O. Box XXX, City of XXXXX, CA 900XX. (3) Send an email to: IHSSsettlement@gmail.com.
IF YOU DO NOT OBJECT TO THE SETTLEMENTS: You do not have to do anything.
IF YOU OBJECT TO THE SETTLEMENTS: You must mail a statement about why you object to the settlements. The deadline is May 3, 2013. Mail your objection to both: 1. Gregory Brown, Office of the Attorney General, 455 Golden Gate Avenue 11th Floor, San Francisco, California 94102 2. IHSS Settlement Lawyers, PO Box XXX, City of XXXXX, CA 900XX. You must mail your objection by the deadline. You cannot object to these settlements later. The court in Oakland will also hold a hearing about the settlements at XXX pm on May 24, 2013. The address for the court is U.S. Federal District Court, Courtroom 2 1301 Clay Street, 4th Floor Oakland California 94612
You can get more details about the hearing from the places listed above.
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NOTICE ABOUT IN-HOME SUPPORTIVE SERVICES (IHSS)
Settlement of IHSS lawsuits
In 2009, the State of California tried to cut IHSS domestic and related hours. In 2011, the State tried to cut IHSS hours by 20%. In 2009, the State tried to cut funds for IHSS workers who make more than $9.50 an hour.
IHSS recipients and labor unions filed lawsuits. They won temporary orders stopping the cuts. The State appealed the lawsuits. No one knows if the courts would allow the cuts or not. Now there is a settlement. If the court approves the settlement:
 There will be no 20% cut in IHSS hours. There will be a one-year cut of 8% starting around July 1, 2013. This is 4.4% below current hours because there is already a cut of 3.6% that is not part of these lawsuits. (3.6% + 4.4% = 8%).
 Around July 2014, the cut in IHSS hours will go down to 7%. (3.4% on top of the 3.6% current cut).
 There will be no cuts in State funding for IHSS wages.  You can ask the county for extra hours if your circumstances change.
TO GET MORE DETAILS OR FILE AN OBJECTION WITH THE COURT: You can get a copy of the class notice and the settlement agreement from your county welfare office or public authority. Also, you can get details at these websites: www.disabilityrightsca.org, www.altshulerberzon.com, www.DHCS.gov, and www.CDSS.gov.
You can also leave a message for the lawyers representing IHSS recipients at 1-800-XXXXXXX.
THE DEADLINE TO OBJECT TO THE SETTLEMENT IS MAY 3, 2013.
You don’t have to do anything if you do not object to the settlement.

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OSTER/DOMINGUEZ SETTLEMENT
PLAN FOR CLASS NOTICE AND TO RESPOND TO OBJECTIONS
A. PLAN FOR CLASS NOTICE
1. The parties have agreed that three documents will be available to inform IHSS recipients, their family members and those who work with and assist them. These documents, collectively referred to as “settlement materials,” are: a. One page flyer/poster b. Class notice – 3 pages 1. The one page flyer and three page class notice will be available in English and 12 other languages. To expedite the translation process, one of the Union Plaintiffs, SEIUUTLCW, will arrange translations within two days of approval, subject to reimbursement from state defendants. 2. The class notice and other settlement materials will be available in alternative formats for IHSS recipients with visual impairments, per Paragraph 3 below. c. Settlement Agreement with all exhibits
2. CDSS and CDHCS will post all settlement materials in English within 24 hours of entry of the Order re Preliminary Approval of Class Settlement in a prominent area of their respective websites. The class notice and flyer will be posted in remaining languages as soon as these are translated and available.
3. Disability Rights California will post the settlement materials on its web site in a format that is accessible to recipients with visual impairments or who are blind who use screen readers, and upon request, will provide the notice in alternative formats, such as audio tapes, compact disks, and large print. Disability Rights California and at least some other class counsel will also post all of the settlement materials on their respective web sites. 1

Case4:09-cv-02306-CW Document458-2 Filed05/10/13 Page49 of 62
4. Union Plaintiffs SEIU State Council, SEIU-ULTCW, SEIU - United Health Workers West and United Domestic Workers, AFSCME, will post information regarding the settlement and the settlement materials (or a link to them) on their respective websites.
5. CDSS will distribute the settlement materials (or a link to them) to each county welfare department and will request that: a. The flyer and notice be displayed in prominent locations in each county welfare office waiting room and public area in English and Spanish; b. The flyer and notice be displayed in prominent locations in additional primary languages prevalent in the regional area (if such languages are among the 12 languages in which the flyer and notice are translated); c. The settlement agreement and class notice in the remainder of languages be available upon request from the office receptionist.
6. CDSS will distribute the settlement materials (or a link to them) to state employees in the State Hearing Division with instructions that the flyer and notice be displayed in prominent locations in each State Hearing Division office and waiting room.
7. CDSS or CDHCS will distribute the settlement materials (or a link to them) to the following organizations with a request to (a) post the flyer and notice on their website, if they have one, (b) post the flyer and notice in prominent locations in the organization’s common area or waiting room, (c) provide the notice individually to any participant whom they have reason to believe may be receiving IHSS: a. Providers of Community-Based Adult Services (“CBAS”), b. IHSS Public Authorities, c. County IHSS Advisory Committees, d. County Adult Protective Services programs
2

Case4:09-cv-02306-CW Document458-2 Filed05/10/13 Page50 of 62
8. CDSS shall make a request to the following state boards, committees and councils, requesting that these state organizations (a) post the flyer and class notice on the state organization’s web page and at its offices, and (b) email the notice (or a link to it) to its distribution or membership list, if any. a. California State Independent Living Organization, http://www.calsilc.org/ b. California Olmstead Advisory Committee, http://www.chhs.ca.gov/initiatives/Olmstead/ c. State Council on Developmental Disabilities, http://www.scdd.ca.gov/
9. Class counsel will make a request to the California Council for the Blind, to (a) post the flyer and 3 page notice at prominent locations at its annual statewide conference and convention in Sacramento on April 1113, 2013, (b) email the notice (or a link to it) to its distribution list; and (c) post the notice and flyer on the organization’s website.
10. Class counsel will arrange to post the notice and flyer on the Benchmark Institute’s list serve in California, which includes more than 300 legal services attorneys, paralegals and other advocates for public benefits recipients, including recipients of IHSS.
11. Class counsel will arrange to post the notice and flyer on the Health Consumer Action list serve in California, which includes more than 400 attorneys and health advocates, including those assisting recipients of IHSS.
12. Class counsel will arrange to post the notice and flyer on the National Senior Citizens Law Center’s California Health Network list serve, which includes more than 1,000 legal services attorneys, health and IHSS advocates, private attorneys, health care providers, aging services providers, community based organizations serving limited English proficient individuals, and other interested individuals and organizations.
3

Case4:09-cv-02306-CW Document458-2 Filed05/10/13 Page51 of 62
13. Class counsel has made arrangements to distribute information about the class notice through the California Disability Community Action Network (“CDCAN”). CDCAN’s email reports go out to over 65,000 people with disabilities, mental health needs, seniors, people with traumatic brain and other injuries, people with MS, Alzheimer's and other disorders, veterans with disabilities and mental health needs, families, workers, community organizations, facilities and advocacy groups including those in the Asian/Pacific Islander, Latino, American Indian, Indian, African-American communities; policymakers, and others across the State.
14. Class counsel will make arrangements to publicize the class settlement with the following organizations, including requesting them to post the notice and flyer on their website and to distribute these materials to their list serves, and also requesting opportunities to speak to their membership on any scheduled conference call or meeting: a. California IHSS Consumer Alliance (CICA) (statewide collaboration of IHSS Public Authority Advisory Committee and Governing Board members); http://www.cicaihss.org b. California Association of Public Authorities (CAPA), http://www.capaihss.org c. California Collaborative for Long Term Services and Supports, which has more than 40 member organizations and is a project of the Government Action and Communication Institute , http://www.gacinstitute.org/ccltss-members.php d. IHSS Coalition, http://www.ihsscoalition.org/ e. California Foundation of Independent Living Centers, http://www.cfilc.org f. People First of California, http://www.peoplefirstca.org/ g. California Network of Mental Health Clients h. Alzheimer’s Association, California Council, http://caalz.org/ i. California Association for Health Services at Home j. California Association of Social Rehabilitation Agencies (CASRA) k. The ARC of California l. AARP
4

Case4:09-cv-02306-CW Document458-2 Filed05/10/13 Page52 of 62
m. Legal Aid Association of California – Senior Legal Services Provider Section
n. California Association of Area Agencies on Aging o. California Health Advocates - Health Insurance Counseling and
Advocacy Programs (HICAP)
B. PLAN FOR RESPONSE TO OBJECTIONS AND REQUESTS FOR INFORMATION
1. Class counsel will set up (a) a toll-free telephone number to accept messages, (b) a post office box (or other mailing address) to which letters from IHSS recipients may be sent and (c) an email address for IHSS recipients to make inquires and request additional information about the settlement. These options for communicating with Class counsel will be described in the Class notice and available during the period for submitting objections and for one week after the date of the fairness hearing. Class counsel will review and log all communications from IHSS recipients.
2. In responding to communications from IHSS recipients, Class counsel will first identify objections, which will be logged and shared with counsel for Defendants. At the close of the objection period, the parties will confer, categorize the objections and provide the Court with a joint report summarizing all objections. Counsel will also respond to objections after the deadline by informing them that the time period has ended but providing additional information if requested.
3. Class counsel will next identify requests for additional information. These will also be logged and provided with an appropriate response, which might be to provide a copy of the notice in alternative languages or formats, to mail the settlement agreement, or to answer any specific questions that are not addressed in the Settlement materials. Class counsel will maintain a log of these inquiries and the
5

Case4:09-cv-02306-CW Document458-2 Filed05/10/13 Page53 of 62
response provided and will be prepared to provide this to the court in camera if requested. 4. Class counsel will next identify complaints and questions that are unrelated to the settlement. If these relate to areas in which Class counsel can provide assistance, the inquiry will be referred to intake staff for the respective program. If it is not an area in which class counsel can assist, the individual will be sent a communication (telephone call, letter or email), stating that Class counsel cannot assist and, if possible, offering a referral to other assistance such as the county bar association or the local legal aid program. Class counsel will maintain a log of these inquiries and the response provided and will be prepared to provide this to the court in camera if requested.
6

Case4:09-cv-02306-CW Document458-2 Filed05/10/13 Page54 of 62
EXHIBIT D

Case4:09-cv-02306-CW Document458-2 Filed05/10/13 Page55 of 62

1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

9

SAN FRANCISCO/OAKLAND DIVISION

10 DAVID OSTER, et al.,

) Case No.: CV 09-04668 CW

11

12

Plaintiffs

) ) ) [PROPOSED] ORDER GRANTING ) FINAL APPROVAL OF CLASS

13

v.

) SETTLEMENT )

14 WILL LIGHTBOURNE, Director of the

)

California Department of Social Services; ) Date:

15 TOBY DOUGLAS, Director of the California ) Time:

Department of Health Care Services;

) Courtroom:

16 CALIFORNIA DEPARTMENT OF HEALTH )

CARE SERVICES; and CALIFORNIA

)

17 DEPARTMENT OF SOCIAL SERVICES, )

)

18

Defendants

)

)

19

20

21

Plaintiffs DAVID OSTER, WILLIE BEATRICE SHEPPARD, C.R. by and through his

22 guardian ad litem M.R., DOTTIE JONES, ANDREA HYLTON, HELEN POLLY STERN,

23 CHARLES THURMAN, and L.C. by and through her guardian ad litem M.G. (collectively

24 “Named Plaintiffs”) have filed, and all parties support, a Motion for Final Approval of Class

25 Settlement (“Motion for Final Approval”). The Class Settlement Agreement, entered into by

26 Named Plaintiffs, Union Plaintiffs (Service Employees International Union-United Healthcare

27 Workers, Service Employees International Union-United Long Term Care Workers, Service

28
1
[Proposed] Order Granting Final Approval of Class Settlement, Case No. CV 09-04668 CW

Case4:09-cv-02306-CW Document458-2 Filed05/10/13 Page56 of 62

1 Employees International Union Local 521, Service Employees International Union California

2 State Council, United Domestic Workers of America, AFSCME Local 3930, AFL-CIO, and

3 California United Homecare Workers), and Defendants, is attached to this order as Exhibit 1.

4

Classes and subclasses in this case have previously been certified under Federal Rule of

5 Civil Procedure 23(b)(2) and need not be amended for purposes of settlement. On ______, 2013,

6 this Court granted preliminary approval to the Class Settlement Agreement and directed notice of

7 the settlement, its terms, and the applicable procedures and schedules. A Fairness Hearing was

8 held on ___________, 2013 to determine whether the Class Settlement Agreement should be

9 granted final approval pursuant to Federal Rule of Civil Procedure 23(e) as fair, adequate, and

10 reasonable. Class members were given an opportunity to comment on and object to the Class

11 Settlement Agreement in writing and at that Fairness Hearing.

12

Based on consideration of Plaintiffs’ moving papers, the arguments of counsel, the

13 objections of class members, and the proceedings in this action to date, the Court hereby finds and

14 concludes that:

15

1. The Class Notice distributed to Class Members, pursuant to this Court’s prior order,

16

was accomplished in all material respects and fully met the requirements of Federal

17

Rule of Civil Procedure 23, due process, and any other applicable laws.

18

2. The Class Settlement Agreement is fair, reasonable, and adequate in all respects. The

19

Class Settlement Agreement is reasonably related to the strength of Plaintiffs’ and class

20

members’ claims given the risk, expense, complexity, and duration of further litigation.

21

The Class Settlement Agreement is the result of arms-length negotiations between

22

experienced counsel representing the interests of the Plaintiff Class and Defendants,

23

after thorough factual and legal investigation.

24

3. The Court has reviewed and considered the objections of class members and finds that

25

they do not raise concerns that warrant rejecting the Class Settlement Agreement.

26

IT IS HEREBY ORDERED that:

27

28
2
[Proposed] Order Granting Final Approval of Class Settlement, Case No. CV 09-04668 CW

Case4:09-cv-02306-CW Document458-2 Filed05/10/13 Page57 of 62

1

1. The Court has jurisdiction over the subject matter of this litigation and all matters

2

relating thereto, and over the Plaintiffs and Defendants. Venue is proper in the

3

Northern District of California.

4

2. Pursuant to Federal Rule of Civil Procedure 23(e), this Court grants final approval to

5

the Class Settlement Agreement, incorporates the terms of the Class Settlement

6

Agreement into this order as though fully set forth, and orders all parties to perform all

7

of their obligations thereunder.

8

3. This order and the Class Settlement Agreement are binding against the parties, their

9

successors in office, and their respective officers, agents, and employees, and all others

10

acting in concert with them.

11

4. Plaintiffs are bound by the Class Settlement Agreement not to bring or support any

12

lawsuit challenging any provisions of the Class Settlement Agreement. The Class

13

Settlement Agreement reserves, and does not waive, Plaintiffs’ right to challenge, on

14

any ground including those previously asserted in this case, any of the following acts

15

that may occur after this Agreement is signed: any state reductions in participation in

16

IHSS wages and/or state approval of wage reductions in IHSS wages; any state

17

reductions of IHSS hours, services, or eligibility other than those set forth in the

18

Agreement; and any due process challenge to notices of action or provision of hearing

19

rights in relation to IHSS service reductions, assessments, or reassessments other than

20

those required by this Agreement.

21

5. The Court retains exclusive and continuing jurisdiction over this case, the Named

22

Plaintiffs, the Plaintiff Classes and Subclasses, and Defendants for purposes of

23

supervising and resolving issues relating to administration, implementation, and

24

enforcement of the Class Settlement Agreement; resolving any disputes that may arise

25

regarding the Class Settlement Agreement, its terms, or the enforcement thereof; and

26

fashioning appropriate remedies for any violation of that Class Settlement Agreement.

27

The Court’s jurisdiction shall expire 30 months after the Centers for Medicare and

28
3
[Proposed] Order Granting Final Approval of Class Settlement, Case No. CV 09-04668 CW

Case4:09-cv-02306-CW Document458-2 Filed05/10/13 Page58 of 62

1

Medicaid Services (CMS) acts on the request for approval of the Assessment described

2

in Section VI of the Agreement.

3

6. As set forth in Paragraph 30 of the Class Settlement Agreement, within 30 days of the

4

date that the appeal in this case has been dismissed and the legislation attached as

5

Exhibit A to the Agreement has been enacted, the parties shall file a Joint Notice and

6

Request for Dismissal. At that time, this Court shall dismiss this case and enter final

7

judgment with prejudice pursuant to the terms of the Class Settlement Agreement,

8

while retaining jurisdiction to enforce the Agreement as set forth above.

9

IT IS SO ORDERED:

10 11 DATED: May __, 2013
12

______________________________________ The Honorable Claudia Wilken United States District Judge

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28
4
[Proposed] Order Granting Final Approval of Class Settlement, Case No. CV 09-04668 CW

Case4:09-cv-02306-CW Document458-2 Filed05/10/13 Page59 of 62

1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

9

SAN FRANCISCO/OAKLAND DIVISION

10 LYDIA DOMINGUEZ, et al.,
11 Plaintiffs,
12 v.
13 WILL LIGHTBOURNE, et al.,
14 15 16

) Case No.: C 09-02306 CW ) ) ) [PROPOSED] ORDER GRANTING ) FINAL APPROVAL OF CLASS ) SETTLEMENT ) ) ) Date: ) Time: ) Courtroom:

17

18

Plaintiffs PATSY MILLER, ALEX BROWN, by and through his mother and next friend

19 Lisa Brown, DONNA BROWN, CHLOE LIPTON, by and through her conservator and next

20 friend Julie Weissman-Steinbaugh, HERBERT M. MEYER, LESLIE GORDON, CHARLENE

21 AYERS, WILLER BEATRICE SHEPPARD, ANDY MARTINEZ, and CAROLYN STWEART

22 (collectively “Named Plaintiffs”) have filed, and State Defendants (Will Lightbourne and Toby

23 Douglas) support, a Motion for Final Approval of Class Settlement (“Motion for Final Approval”).

24 The Class Settlement Agreement, entered into by Named Plaintiffs, Union Plaintiffs (Service

25 Employees International Union-United Healthcare Workers, Service Employees International

26 Union-United Long Term Care Workers, Service Employees International Union Local 521,

27 Service Employees International Union California State Council, United Domestic Workers of

28
1
[Proposed] Order Granting Final Approval of Class Settlement, Case No. C 09-02306 CW

Case4:09-cv-02306-CW Document458-2 Filed05/10/13 Page60 of 62

1 America, AFSCME Local 3930, AFL-CIO, and California United Homecare Workers), and State

2 Defendants, is attached to this order as Exhibit 1.

3

Classes and subclasses in this case have previously been certified under Federal Rule of

4 Civil Procedure 23(b)(2) and were amended in the order granting preliminary approval because of

5 changed factual circumstances. On ______, 2013, this Court granted preliminary approval to the

6 Class Settlement Agreement and directed notice of the settlement, its terms, and the applicable

7 procedures and schedules. A Fairness Hearing was held on ___________, 2013 to determine

8 whether the Class Settlement Agreement should be granted final approval pursuant to Federal

9 Rule of Civil Procedure 23(e) as fair, adequate, and reasonable. Class members were given an

10 opportunity to comment on and object to the Class Settlement Agreement in writing and at that

11 Fairness Hearing.

12

Based on consideration of Plaintiffs’ moving papers, the arguments of counsel, the

13 objections of class members, and the proceedings in this action to date, the Court hereby finds and

14 concludes that:

15

1. The Class Notice distributed to Class Members, pursuant to this Court’s prior order,

16

was accomplished in all material respects and fully met the requirements of Federal

17

Rule of Civil Procedure 23, due process, and any other applicable laws.

18

2. The Class Settlement Agreement is fair, reasonable, and adequate in all respects. The

19

Class Settlement Agreement is reasonably related to the strength of Plaintiffs’ and class

20

members’ claims given the risk, expense, complexity, and duration of further litigation.

21

The Class Settlement Agreement is the result of arms-length negotiations between

22

experienced counsel representing the interests of the Plaintiff Class and State

23

Defendants, after thorough factual and legal investigation.

24

3. The Court has reviewed and considered the objections of class members and finds that

25

they do not raise concerns that warrant rejecting the Class Settlement Agreement.

26

IT IS HEREBY ORDERED that:

27

28
2
[Proposed] Order Granting Final Approval of Class Settlement, Case No. C 09-02306 CW

Case4:09-cv-02306-CW Document458-2 Filed05/10/13 Page61 of 62

1

1. The Court has jurisdiction over the subject matter of this litigation and all matters

2

relating thereto, and over the Plaintiffs and Defendants. Venue is proper in the

3

Northern District of California.

4

2. Pursuant to Federal Rule of Civil Procedure 23(e), this Court grants final approval to

5

the Class Settlement Agreement, incorporates the terms of the Class Settlement

6

Agreement into this order as though fully set forth, and orders all parties to that

7

Agreement (“Parties”) to perform all of their obligations thereunder.

8

3. This order and the Class Settlement Agreement are binding against the Parties, their

9

successors in office, and their respective officers, agents, and employees, and all others

10

acting in concert with them.

11

4. Plaintiffs are bound by the Class Settlement Agreement not to bring or support any

12

lawsuit challenging any provisions of the Class Settlement Agreement. The Class

13

Settlement Agreement reserves, and does not waive, Plaintiffs’ right to challenge, on

14

any ground including those previously asserted in this case, any of the following acts

15

that may occur after this Agreement is signed: any state reductions in participation in

16

IHSS wages and/or state approval of wage reductions in IHSS wages; any state

17

reductions of IHSS hours, services, or eligibility other than those set forth in the

18

Agreement; and any due process challenge to notices of action or provision of hearing

19

rights in relation to IHSS service reductions, assessments, or reassessments other than

20

those required by this Agreement.

21

5. The Court retains exclusive and continuing jurisdiction over this case, the Named

22

Plaintiffs, the Plaintiff Classes and Subclasses, and State Defendants for purposes of

23

supervising and resolving issues relating to administration, implementation, and

24

enforcement of the Class Settlement Agreement; resolving any disputes that may arise

25

regarding the Class Settlement Agreement, its terms, or the enforcement thereof; and

26

fashioning appropriate remedies for any violation of that Class Settlement Agreement.

27

The Court’s jurisdiction shall expire 30 months after the Centers for Medicare and

28
3
[Proposed] Order Granting Final Approval of Class Settlement, Case No. C 09-02306 CW

Case4:09-cv-02306-CW Document458-2 Filed05/10/13 Page62 of 62

1

Medicaid Services (CMS) acts on the request for approval of the “Assessment”

2

described in Section VI of the Agreement.

3

6. As set forth in Paragraph 30 of the Class Settlement Agreement, within 30 days of the

4

date that the appeal in this case has been dismissed and the legislation attached as

5

Exhibit A to the Agreement has been enacted, the parties shall file a Joint Notice and

6

Request for Dismissal. At that time, this Court shall dismiss this case and enter final

7

judgment with prejudice as to State Defendants, pursuant to the terms of the Class

8

Settlement Agreement, while retaining jurisdiction to enforce the Agreement as set

9

forth above.

10

IT IS SO ORDERED:

11 12 DATED: May __, 2013
13

______________________________________ The Honorable Claudia Wilken United States District Judge

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28
4
[Proposed] Order Granting Final Approval of Class Settlement, Case No. C 09-02306 CW

 
 1 KAMALA D. HARRIS Attorney General of California
2 SUSAN M. CARSON Supervising Deputy Attorney General
3 State Bar No. 135875 455 Golden Gate Avenue, Suite 11000
4 San Francisco, CA 94102-7004 Telephone: (415) 703-5580
5 Fax: (415) 703-5480 E-mail: susan.carson@doj.ca.gov
6 Attorneys for Defendants
7

8 IN THE UNITED STATES DISTRICT COURT
9 FOR THE NORTHERN DISTRICT OF CALIFORNIA
10

11

12

13 LYDIA DOMINGUEZ et al.,

CV 09-2306 CW

14

15

v.

Plaintiffs, STIPULATION TO AMEND SETTLEMENT AGREEMENT; [PROPOSED] ORDER

16 ARNOLD SCHWARZENEGGER,
17 Governor of the State of California, et al.,

The Honorable Claudia Wilken Action Filed: May 26, 2009

18

Defendants.

19

20

21

22

23

24

25

26

27

28
1 STIPULATION TO AMEND SETTLEMENT AGREEMENT; [PROPOSED] ORDER (CV 09-2306 CW)

1

The Parties to the Settlement Agreement resolving the Oster v. Lightbourne and

2 Dominguez v. Brown lawsuits (as “Parties” is defined in the Settlement Agreement) hereby agree 3 to modify and amend the Settlement Agreement as follows1:

4

1. Paragraph 18 of the Settlement Agreement is deleted and amended to read:

5 “The Parties agree to jointly discuss, and State Defendants will submit to the Legislature by no

6 later than February 1, 2015, proposed legislation authorizing an assessment on home care

7 services, including but not limited to, home health care and IHSS (Assessment).”

8

2. Paragraph 19 of the Settlement Agreement is deleted and amended to read:

9 “If the Assessment is passed by the Legislature, then State Defendants shall submit a request by

10 April 1, 2015, to the federal Centers for Medicare and Medicaid Services (CMS) for authorization

11 to implement the Assessment and shall work with Plaintiffs in good faith to obtain CMS approval

12 of this Assessment.”

13

3. Paragraph 20 of the Settlement Agreement is deleted and amended to read:

14 “The Parties’ counsel shall meet and confer, in person or telephonically, regarding the status of

15 the Assessment in October 2013, March or April 2014, August or September 2014, January 2015,

16 and March 2015. If the Assessment is not submitted to CMS by April 1, 2015, the Parties will

17 discuss next steps, and if a resolution is not reached, either Party may submit the dispute to the

18 district court for resolution and for fashioning appropriate remedies needed to facilitate the

19 submission of the Assessment to CMS for approval.”

20

4. All definitions in the Settlement Agreement shall apply to this First Amendment to

21 Settlement Agreement.

22

5.

This stipulation shall constitute an amendment pursuant to Paragraph 38 of the

23 Settlement Agreement, and the electronic signatures of counsel for the Parties, set forth below,

24 shall satisfy the signature requirement of that paragraph.

25 ///

26 ///

27

1 Attached as Exhibit A is a redlined version of the Settlement Agreement indicating the

amendments to the agreement. 28

2

STIPULATION TO AMEND SETTLEMENT AGREEMENT; [PROPOSED] ORDER (CV 09-2306 CW)

1

6. The effective date of this First Amendment to Settlement Agreement shall be August

2 29, 2014.

3 Dated: August 29, 2014
4
5
6

Respectfully submitted,
KAMALA D. HARRIS Attorney General of California

7

/s/ Susan M. Carson

8

SUSAN M. CARSON

Supervising Deputy Attorney General

9

Attorneys for Defendants

10

11

Respectfully submitted,

12

Stephen P. Berzon

Stacey M. Leyton

13

Peder J. Thoreen

Altshuler Berzon LLP 14

/s/ Stacey M. Leyton

.

15

Attorneys for Plaintiffs

16

17

18

19

20

21

22

23

24

25

26

27

28
3 STIPULATION TO AMEND SETTLEMENT AGREEMENT; [PROPOSED] ORDER (CV 09-2306 CW)

1

GENERAL ORDER 45 ATTESTATION

2

I, Susan Carson, am the ECF user whose ID and password are being used to file this

3 declaration. In compliance with General Order 45, X.B., I hereby attest that counsel for Plaintiffs

4 and Fresno Defendants have concurred in the filing of this document with their electronic

5 signatures.

6 Dated: August 29, 2014

7

/S/ Susan M. Carson

.

Susan Carson 8

9

10

[PROPOSED] ORDER

11

12

GOOD CAUSE APPEARING, THE COURT HEREBY APPROVES THE

AMENDMENT TO THE AGREEMENT. DOJ - Split billing client code - Internal Use OnlyIT 13 IS SO ORDERED.

14

15 Dated: _S_e_p__t_e_m_b_e__r__3_, 2014 16 17

________________________
Honorable Claudia A. Wilken United States District Court Judge

18

19

SF2009403964 41063451.doc

20

21

22

23

24

25

26

27

28
4 STIPULATION TO AMEND SETTLEMENT AGREEMENT; [PROPOSED] ORDER (CV 09-2306 CW)

SETTLEMENT AGREEMENT I. INTRODUCTION
1. This Settlement Agreement (Agreement) globally resolves the following two class-action lawsuits: Oster v. Lightbourne, N.D. Cal., Case No. CV 09-04668 CW, U.S. Court of Appeals for the Ninth Circuit, Case No. 12-15366 (Oster); and Dominguez v. Brown, N.D. Cal., Case No. CV 09-02306 CW, U.S. Court of Appeals for the Ninth Circuit, Case No. 09- 16359 (Dominguez). It is the intent of the Parties that this Agreement will fully and finally resolve the Oster and Dominguez cases. This Agreement represents substantial compromises among all the Parties, and addresses the long term stability of the programs at issue in these cases for the benefit of recipients, providers, and the State of California. II. PARTIES
2. The Individual Named Plaintiffs in Oster are David Oster; Willie Beatrice Sheppard; C.R., by and through his guardian ad litem, M.R.; Dottie Jones; Andrea Hylton; Helen Polly Stern; Charles Thurman; and L.C., by and through her guardian ad litem, M.G. The Organizational Plaintiffs in Oster are Service Employees International Union-United Healthcare Workers West; Service Employees International Union-United Long Term Care Workers; Service Employees International Union Local 521; Service Employees International Union State Council; United Domestic Workers of America, AFSCME Local 3930, AFL-CIO; and California United Healthcare Workers. Defendants in Oster are Will Lightbourne, Director of the California Department of Social Services (CDSS); Toby Douglas, Director of the California Department of Health Care Services (DHCS); CDSS; and DHCS.
3. The Individual Named Plaintiffs in Dominguez are Patsy Miller; Alex Brown, by and through his mother and next friend Lisa Brown; Donna Brown; Chloe Lipton, by and
Page 1 of 13

through her conservator and next friend Julie Weissman-Steinbaugh; Herbert M. Meyer; Charlene
Ayers; Leslie Gordon; Willie Beatrice Sheppard; Andy Martinez; and Carolyn Stewart, on behalf
of themselves and a class of those similarly situated. The Organizational Plaintiffs in Dominguez
are Service Employees International Union-United Healthcare Workers West; Service Employees
International Union-United Long Term Care Workers; Service Employees International Union
Local 521; Service Employees International Union California State Council; United Domestic
Workers of America, AFSCME Local 3930, AFL-CIO; and California United Homecare
Workers. State Defendants in Dominguez are Will Lightbourne, Director of CDSS, and Toby Douglas, Director of DHCS.1
4. The term “Plaintiffs” in this Agreement refers to all individual and organizational
plaintiffs as well as the Classes for Oster and the amended class for Dominguez.
5. The term “State Defendants” in this Agreement refers to the state officer and state
entity defendants in both Oster and Dominguez.
6. The term “Parties” in this Agreement refers to Plaintiffs and State Defendants. 7. The term “IHSS recipients” in this Agreement refers to all recipients in the State
of California who receive services through the In-Home Supportive Services (IHSS), IHSS Plus
Option, Personal Care Services, or Community First Choice Option programs.
1 By operation of law, named defendant John A. Wagner is replaced by his successor, Will Lightbourne; and named defendant David Maxwell-Jolly is replaced by his successor, Toby Douglas. Governor Edmund G. Brown Jr., Controller John Chiang, Fresno County, and Fresno County In-Supportive Services Public Authority are currently named defendants in Dominguez but are not parties to this settlement agreement. Plaintiffs have agreed to dismiss with prejudice Brown and Chiang, with all parties to bear their own fees and costs. Plaintiffs have also agreed to dismiss Fresno County and Fresno County IHSS Public Authority without prejudice, with all parties to bear their own fees and costs. Plaintiffs are not releasing any claims against Fresno County or Fresno County IHSS Public Authority arising from this county’s request for or implementation of a future reduction in IHSS wages.
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III. JURISDICTION 8. The United States District Court has jurisdiction over the claims against all
defendants pursuant to 28 U.S.C. §§ 1331, 1343, and 1367. Venue is proper in the Northern District of California pursuant to 28 U.S.C. § 1392(b).

IV. CLASS DEFINITIONS 9. The district court has previously certified the Oster Classes as set forth below and
appointed as Class Representatives the Individual Named Plaintiffs listed in paragraph 2 of the Agreement:

Class A:

All IHSS recipients in the State of California whose IHSS services

will be limited, cut, or terminated under the provisions of ABX4 4, and all

applicants to IHSS in the State of California who would have been eligible for

IHSS services but who are either not eligible, or are eligible for fewer services, as

a result of ABX4 4.

Class B: All IHSS recipients in the State of California who have received or will receive notices of action that include a reduction of IHSS hours based on SB 73 or Defendants’ implementation of SB 73, including future applicants for IHSS services whose notice of action will reflect reduced IHSS hours as a result of SB 73 or Defendants’ implementation of SB 73.
10. The district court has previously certified a Class in Dominguez and appointed as

Class Representatives the Individual Named Plaintiffs listed in paragraph 3 of this Agreement.

The Parties agree that, due to changes in factual circumstances, the Class definition should be

amended by adding five counties (Los Angeles, Madera, Mariposa, San Joaquin, and Yuba).

Accordingly, in connection with preliminary approval of the Settlement Agreement, Plaintiffs

will ask the district court to amend the class definition to the following:

All IHSS recipients who reside in Alameda, Calaveras, Contra Costa, Fresno, Los Angeles, Madera, Marin, Mariposa, Mendocino, Monterey, Napa, Placer, Riverside, Sacramento, San Benito, San Francisco, San Joaquin, San Luis Obispo, San Mateo, Santa Barbara, Santa Clara, Santa Cruz, Solano, Sonoma, Yolo, and Yuba counties.
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11. If the district court does not approve this Agreement, the Parties agree that State Defendants will not be prejudiced or bound by anything in this Agreement, and instead, State Defendants will have whatever rights they would have had before they entered into this Agreement to contest that the Plaintiffs are appropriate class representatives, and/or to contest that the Oster and Dominguez classes meet the requirements of Federal Rules of Civil Procedure 23(a) and 23(b)(2). V. REDUCTION IN NUMBER OF AUTHORIZED HOURS
12. Contingent upon enactment of the state legislation described in Exhibit A of this Agreement, State Defendants will implement an 8 percent across-the-board reduction in authorized service hours that shall run for 12 consecutive months. It is the intent of the Parties that this reduction be implemented on July 1, 2013.
13. Effective 12 months after implementation of the 8 percent reduction set forth in the preceding paragraph, and contingent upon enactment of the state legislation described in Exhibit A of this Agreement, State Defendants will replace the 8 percent reduction with, and will implement, an ongoing 7 percent across-the-board reduction in authorized service hours.
14. The reductions identified in paragraphs 12 and 13 shall not be in addition to the current 3.6 percent across-the-board reduction of authorized service hours. The current reduction of 3.6 percent terminates by operation of law on July 1, 2013. It is the intent of the Parties to avoid any time period during which the 3.6 percent reduction has expired but the 8 percent reduction has not yet been implemented.
15. The reductions identified in paragraphs 12 and 13 will be the result of a change in state law and therefore are not subject to appeal by state fair hearing, administrative hearing, trial court, or otherwise. Any such appeal can be administratively denied, and the recipient will not
Page 4 of 13

have “aid-paid-pending” rights in such an appeal. No further legislative authority, beyond that provided in Exhibit A, shall be necessary to implement the reductions described in paragraphs 12 and 13.
16. Recipients shall retain their right to request a reassessment based on a change in circumstances consistent with California Welfare and Institutions Code section 12301.1(d) (as of 2013). In accordance with applicable law, recipients shall not be required to provide a physician’s note or medical certification of a change in their medical condition in order to obtain a reassessment. An IHSS recipient may appeal the denial of a request for a reassessment, and CDSS will instruct the counties to notify recipients subject to a denial of that right to appeal. A recipient who appeals the denial of a reassessment will not have “aid-paid-pending” rights in such an appeal. A request for reassessment based solely on the reductions of authorized service hours identified in paragraphs 12 and 13 can be administratively denied, but is still subject to the right to appeal described above.
17. CDSS agrees to provide the information in the preceding paragraph to the counties through the provision of an All-County Letter (ACL). Plaintiffs will have the opportunity to review and comment on a draft of the ACL prior to finalization and distribution to the counties. CDSS also agrees to provide the information regarding reassessment and appeals in the preceding paragraph to recipients in the Notice of Action (NOA) regarding the 8 percent reduction in paragraph 12. Plaintiffs will have the opportunity to review and comment on a draft of the NOA prior to finalization and distribution to recipients.
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VI. STATE LEGISLATION REGARDING AN ASSESSMENT 18. The Parties agree to jointly discuss, and State Defendants will submit to the
Legislature by no later than February 1, 2015, proposed legislation authorizing an assessment on home care services, including but not limited to, home health care and IHSS (Assessment).
19. If the Assessment is passed by the Legislature, then State Defendants shall submit a request by October April 1, 20145, to the federal Centers for Medicare and Medicaid Services (CMS) for authorization to implement the Assessment and shall work with Plaintiffs in good faith to obtain CMS approval of this Assessment.
20. The Parties’ counsel shall meet and confer, in person or telephonically, regarding the status of the Assessment in October 2013, March or April 2014, and August or September 2014, January 2015, and March 2015. If the Assessment is not submitted to CMS by October April 1, 20145, the Parties will discuss next steps, and if a resolution is not reached, either Party may submit the dispute to the district court for resolution and for fashioning appropriate remedies needed to facilitate the submission of the Assessment to CMS for approval.
21. If the Assessment is approved by CMS, the general fund savings generated by the Assessment revenues will offset the reduction in authorized service hours set forth in paragraph 13, up to 7 percent, as set forth Section 12YYY attached hereto as part of Exhibit A.
22. State Defendants will pursue retroactive implementation of the Assessment. If CMS approves retroactive implementation of the Assessment, the one-time savings from that retroactive implementation, as determined by the director of the Department of Finance, shall be reinvested for the benefit of recipients. The Parties shall discuss how this reinvestment should occur; however, the implementation of this reinvestment shall be subject to applicable legislative approval.
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VII. OTHER STATE LEGISLATION 23. The Parties agree to jointly support passage by the Legislature of the legislation
attached in Exhibit A hereto (which includes the repeal of Cal. Welf. & Inst. Code §§ 12301.07, 12306.1(d)(6) & (d)(7), 12309(e)-(i), & 12309.2) as soon as possible, but no later than May 24, 2013. If this legislation is not enacted by June 1, 2013, or is enacted with substantive alteration (e.g., different percentage reductions than set forth in this Agreement), the Parties shall meet and confer to discuss next steps. If this legislation is not passed by the Legislature or is passed with substantive alteration, or is not delivered to the Governor by November 1, 2013, then the Parties shall meet and confer to determine whether they can agree upon a mutually acceptable solution. If the Parties cannot reach such agreement, at that time, any Party may declare the Agreement null and void.
24. The Parties agree to jointly support passage by the Legislature of legislation that would authorize the creation of an assessment such as described in Section VI. VIII. JOINT REQUEST FOR FEDERAL APPROVALS IF NECESSARY
25. The Parties agree to jointly support federal approvals, if any are necessary, to implement this Agreement. IX. DISTRICT COURT APPROVAL AND ENFORCEMENT OF SETTLEMENT
26. The Class Representatives agree to file on behalf of the certified classes in Oster and the amended class in Dominguez, and all other Parties agree to support, a motion with the district court to request a fairness hearing pursuant to Federal Rule of Civil Procedure 23(e) and to seek the district court’s preliminary and final approvals of this Agreement in Oster and Dominguez. The Parties will cooperate in presenting this Agreement to the district court at the fairness hearings and will take all steps necessary to seek and obtain the district court’s approval.
Page 7 of 13

If the district court withholds its approval of this Agreement or the settlement for any reason, the Parties shall meet and confer to determine whether this Agreement can be amended or modified in a manner so as to secure the district court’s approval. If this is not attained, this Agreement shall be null and void.
27. If the district court approves the Agreement but an appeal is filed, the Parties shall meet and confer to discuss opposing that appeal. If an appeal results in the district court’s approval of the Agreement being overturned, the parties shall meet and confer to discuss next steps.
28. The Parties agree to stipulate and request district court approval for a proposed schedule, attached as Exhibit B and incorporated into this agreement as if fully set forth herein. The proposed schedule assumes that the district court will not require individually mailed notice. The Parties agree to meet and confer to discuss alternate dates in the event that any portion of the proposed schedule becomes impracticable or is not approved by the district court.
29. The Class Representatives, on behalf of the certified classes in Oster and the amended class in Dominguez, will propose to the district court, and all Parties agree to support, that the Classes be notified of the proposed settlement as set forth in the Class Notice Plan contained in Exhibit C to this Agreement.
30. Following enactment of the legislative language referenced in Exhibit A, without substantive alteration, and final approval of the Settlement Agreement by the district court, the Parties agree to jointly move to dismiss all appeals in Oster and Dominguez within 30 days after enactment of the legislation set forth in Exhibit A.
31. Within 30 days of the date that the appeals have been dismissed and the legislation enacted, the Parties agree to ask the district court to enter final judgment dismissing
Page 8 of 13

the Oster and Dominguez actions as to State Defendants, ordering the Parties to comply with the Agreement, and retaining jurisdiction to enforce the provisions of the Agreement and fashion remedies in the event that a Party violates the Agreement. The district court shall retain jurisdiction for 30 months after the date of CMS approval or disapproval of the Assessment. A copy of each of the Final Judgments, that the Parties agree to ask the district court to enter, is attached hereto as Exhibit D. X. ATTORNEYS’ FEES AND COSTS
32. Each Party will bear its own attorneys’ fees and costs, and no attorneys’ fees or costs against any Party shall be awarded in Oster, Dominguez, or any appeals therefrom, or any action to enforce the terms of this Agreement. XI. SCOPE OF AGREEMENT
33. Upon final approval of this Agreement pursuant to Federal Rule of Civil Procedure 23(e), Plaintiffs hereby release any and all claims, damages, liabilities, rights, and complaints against State Defendants asserted in Oster and/or Dominguez, except for any claims for enforcement of this Agreement. Plaintiffs agree not to bring or support any lawsuit challenging any provisions of this Agreement. Plaintiffs reserve and are not waiving the right to challenge, on any ground including those previously asserted in Oster and Dominguez, any of the following acts that may occur after this Agreement is signed: any state reductions in participation in IHSS wages and/or state approval of wage reductions in IHSS wages; any state reductions of IHSS hours, services, or eligibility other that those set forth in this Agreement; and any due process challenge to State Defendants’ notices of action or provision of hearing rights in relation to IHSS services, assessments, or reassessments other than those required by this Agreement.
Page 9 of 13

XII. NO ADMISSION OF LIABILITY OR WAIVER OF RIGHTS 34. State Defendants expressly deny each and all of the claims and contentions
alleged against them in these actions. Plaintiffs expressly contend that all claims for relief in these actions are meritorious. This Agreement, anything contained herein, and any negotiations or proceedings hereunder shall not be construed as or deemed to be an admission, presumption, evidence of, or concession by any State Defendant of the truth of any fact alleged or the validity of any claim which has or could have been asserted in this action, or of the deficiency of any defense which has or could have been asserted in this action or of any wrongdoing or liability whatsoever.
35. This Agreement, the fact of its existence, and any term thereof shall not be construed as an admission by any State Defendant, or used as evidence against any State Defendant, in any civil, criminal, or administrative action or proceeding except to the extent necessary to enforce claims for a breach of this Agreement. XIII. EFFECTIVE DATE OF SETTLEMENT AGREEMENT
36. The effective date of this Agreement shall be 30 days from entry of final approval of this Agreement pursuant to Federal Rule of Civil Procedure 23(e) in Oster and Dominguez. XIV. ADDITIONAL PROVISIONS
37. This Agreement contains all of the terms and conditions agreed upon by the Parties hereto, and no oral agreement entered into at any time nor any written agreement entered into prior to the execution of this Agreement regarding the subject matter of this Agreement shall be deemed to exist, or to bind the Parties hereto, or to vary the terms and conditions contained herein.
Page 10 of 13

38. This Agreement may only be amended, modified, or supplemented by an agreement in writing signed by all Parties and approved by the court specifying its intent to modify this Agreement.
39. The Parties agree to use their best efforts to carry out the terms of the Agreement. At no time shall any of the Parties seek to solicit or encourage members of the Settlement Class to submit objections to the Agreement or to appeal from the order giving final approval to the Agreement.
40. All Parties to this Agreement, through their respective counsel, have participated in its drafting and, consequently, any ambiguity shall not be construed for or against any party.
41. This Agreement shall inure to the benefit of and be binding upon the legal representatives and any successor of any party hereto.
42. Each of the undersigned attorneys represents that he or she has been duly authorized to enter into this Agreement.
43. Each signatory to this Agreement represents and warrants that he/she is authorized to sign this Agreement and bind the party on behalf of whom he/she signs.
44. This Agreement may be executed in counterparts, each of which will be deemed to be an original and all of which taken together shall constitute a single instrument. This Agreement may be executed by signature via facsimile transmission or electronic mail, which shall be deemed to be the same as an original signature.
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XV. SIGNATURES For the Individual Named Plaintiffs and Class Representatives in Oster:

Date: March August ___, 20134

Melinda Bird, Esq. Disability Rights California Attorneys for Individual Named Plaintiffs and the Certified Class in Oster

For the Organizational Plaintiffs in Oster and all Plaintiffs, including all Class Representatives, in Dominguez:

Date: March August ___, 20134

Stacey M. Leyton, Esq. Altshuler Berzon LLP Attorneys for Organizational Plaintiffs in Oster and all Plaintiffs and the Certified Class in Dominguez

For State Defendants, Approved as to Form:

Date: March August ___, 20143 For State Defendants:

Susan M. Carson Supervising Deputy Attorney General Office of the Attorney General Attorneys for State Defendants

Date: March August ___, 20134

Will Lightbourne Director California Department of Social Services

Date: March August ___, 20143

Toby Douglas Director California Department of Health Care Services
Page 12 of 13

Date: March August ___, 20134

Douglas Press Chief Counsel California Department of Health Care Services

Exhibit A – Proposed Legislation Exhibit B – Proposed Schedule Exhibit C – Proposed Class Notices and Class Notice Plan Exhibit D – Proposed Final Judgments

SF2009405031 40677551.doc

Page 13 of 13

Dominguez Class Counsel and Oster Class Counsel

Dominguez Class Counsel

Oster Class Counsel

Stephen P. Berzon Altshuler Berzon LLP

Melinda Bird Disability Rights California

Scott A. Kronland Altshuler Berzon LLP

Marilyn Holle Disability Rights California

Stacey M. Leyton Altshuler Berzon LLP

Sujatha Jagadeesh Branch Disability Rights California

Peder J. Thoreen Altshuler Berzon LLP

Dara L. Schur Disability Rights California

Anne N. Arkush Altshuler Berzon LLP

Anna Rich National Senior Citizen Law Center

Paula Pearlman Disability Rights Legal Center

Charles Wolfinger Law Office of Charles Wolfinger

Jane Perkins National Health Law Program

 
 Case: 4:09-cv-2306 As of: 11/13/2017 04:18 PM PST 1 of 68
ADRMOP,CLOSED,E−Filing,PROTO,REFDIS,RELATE
U.S. District Court California Northern District (Oakland) CIVIL DOCKET FOR CASE #: 4:09−cv−02306−CW

Dominguez et al v. Schwarzenegger et al Assigned to: Hon. Claudia Wilken Referred to: Magistrate Judge Jacqueline Scott Corley Relate Case Cases: 4:09−cv−04668−CW
4:10−cv−00344−CW
Case in other court: Ninth Circuit Court of Appeals, 09−16359 Cause: 42:1396 − Tort Negligence
Plaintiff

Date Filed: 05/26/2009 Date Terminated: 08/07/2013 Jury Demand: Defendant Nature of Suit: 890 Other Statutory Actions Jurisdiction: Federal Question

Mikesha Martinez by and through her husband and next friend Carlos Martinez, and on on behalf of themselves and a class of those similary situated TERMINATED: 11/24/2009

represented by Anne Nelson Arkush Altshuler Berzon 177 Post St Suite 300 San Francisco, CA 94108 415−421−7151 Fax: 415−362−8064 Email: aarkush@altber.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Emily Butler White Altshuler Berzon 177 Post Suite 300 San Francisco, CA 94108 415−421−7151 Email: ewhite@altshulerberzon.com TERMINATED: 12/28/2010

Peder J. Thoreen Altshuler Berzon LLP 177 Post Street, Suite 300 San Francisco, CA 94108 (415) 421−7151 Email: pthoreen@altshulerberzon.com ATTORNEY TO BE NOTICED

Scott Alan Kronland Altshuler Berzon LLP 177 Post Street, Suite 300 San Francisco, CA 94108 415−421−7151 Fax: 415−362−8064 Email: skronland@altshulerberzon.com ATTORNEY TO BE NOTICED

Stacey M. Leyton Altshuler Berzon LLP 177 Post St. Ste 300 San Francisco, CA 94108 415 421−7151 Email: sleyton@altshulerberzon.com ATTORNEY TO BE NOTICED

Stephen P. Berzon Altshuler Berzon LLP 177 Post Street

Case: 4:09-cv-2306 As of: 11/13/2017 04:18 PM PST 2 of 68

Suite 300 San Francisco, CA 94108 415−421−7151 Email: sberzon@altshulerberzon.com ATTORNEY TO BE NOTICED

Plaintiff
Lydia Dominguez on behalf of themselves and a class of those similary situated TERMINATED: 02/04/2011

represented by Anne Nelson Arkush (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Caroline Place Cincotta Altshuler Berzon LLP 177 Post Street, Suite 300 San Francisco, CA 94108 415−421−7151 Fax: 415−362−8064 Email: ccincotta@hcrc.ca.gov ATTORNEY TO BE NOTICED

Emily Butler White (See above for address) TERMINATED: 12/28/2010

Peder J. Thoreen (See above for address) ATTORNEY TO BE NOTICED

Scott Alan Kronland (See above for address) ATTORNEY TO BE NOTICED

Stacey M. Leyton (See above for address) ATTORNEY TO BE NOTICED

Stephen P. Berzon (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Alex Brown by and through his mother and next friend Lisa Brown, and on behalf of themselves and a class of those similary situated

represented by Anne Nelson Arkush (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Caroline Place Cincotta (See above for address) ATTORNEY TO BE NOTICED

Emily Butler White (See above for address) TERMINATED: 12/28/2010

Peder J. Thoreen (See above for address) ATTORNEY TO BE NOTICED

Scott Alan Kronland (See above for address) ATTORNEY TO BE NOTICED

Stacey M. Leyton

Case: 4:09-cv-2306 As of: 11/13/2017 04:18 PM PST 3 of 68

(See above for address) ATTORNEY TO BE NOTICED

Stephen P. Berzon (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Donna Brown on behalf of themselves and a class of those similary situated

represented by Anne Nelson Arkush Altshuler Berzon 177 Post St Suite 300 San Francisco, CA 94108 415−421−7151 Email: aarkush@altber.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Caroline Place Cincotta (See above for address) ATTORNEY TO BE NOTICED

Emily Butler White (See above for address) TERMINATED: 12/28/2010

Peder J. Thoreen (See above for address) ATTORNEY TO BE NOTICED

Scott Alan Kronland (See above for address) ATTORNEY TO BE NOTICED

Stacey M. Leyton (See above for address) ATTORNEY TO BE NOTICED

Stephen P. Berzon Altshuler Berzon Nussbaum Rubin & Demain 177 Post Street Suite 300 San Francisco, CA 94108 415−421−7151 Email: sberzon@altshulerberzon.com ATTORNEY TO BE NOTICED

Plaintiff
Chloe Lipton by and through her conservator and next friend Julie Weissman−Steinbaugh, and on behalf of themselves and a class of those similary situated

represented by Anne Nelson Arkush (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Caroline Place Cincotta (See above for address) ATTORNEY TO BE NOTICED

Emily Butler White (See above for address) TERMINATED: 12/28/2010

Peder J. Thoreen (See above for address)

Case: 4:09-cv-2306 As of: 11/13/2017 04:18 PM PST 4 of 68

ATTORNEY TO BE NOTICED

Scott Alan Kronland (See above for address) ATTORNEY TO BE NOTICED

Stacey M. Leyton (See above for address) ATTORNEY TO BE NOTICED

Stephen P. Berzon (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Herbert M. Meyer on behalf of themselves and a class of those similary situated

represented by Anne Nelson Arkush (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Caroline Place Cincotta (See above for address) ATTORNEY TO BE NOTICED

Emily Butler White (See above for address) TERMINATED: 12/28/2010

Peder J. Thoreen (See above for address) ATTORNEY TO BE NOTICED

Scott Alan Kronland (See above for address) ATTORNEY TO BE NOTICED

Stacey M. Leyton (See above for address) ATTORNEY TO BE NOTICED

Stephen P. Berzon (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Leslie Gordon on behalf of themselves and a class of those similary situated

represented by Anne Nelson Arkush (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Caroline Place Cincotta (See above for address) ATTORNEY TO BE NOTICED

Emily Butler White (See above for address) TERMINATED: 12/28/2010

Peder J. Thoreen (See above for address) ATTORNEY TO BE NOTICED

Scott Alan Kronland (See above for address)

Case: 4:09-cv-2306 As of: 11/13/2017 04:18 PM PST 5 of 68

ATTORNEY TO BE NOTICED

Stacey M. Leyton (See above for address) ATTORNEY TO BE NOTICED

Stephen P. Berzon (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Charlene Ayers on behalf of themselves and a class of those similary situated

represented by Anne Nelson Arkush (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Caroline Place Cincotta (See above for address) ATTORNEY TO BE NOTICED

Emily Butler White (See above for address) TERMINATED: 12/28/2010

Peder J. Thoreen (See above for address) ATTORNEY TO BE NOTICED

Scott Alan Kronland (See above for address) ATTORNEY TO BE NOTICED

Stacey M. Leyton (See above for address) ATTORNEY TO BE NOTICED

Stephen P. Berzon (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Willie Beatrice Sheppard on behalf of themselves and a class of those similary situated

represented by Anne Nelson Arkush (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Caroline Place Cincotta (See above for address) ATTORNEY TO BE NOTICED

Emily Butler White (See above for address) TERMINATED: 12/28/2010

Peder J. Thoreen (See above for address) ATTORNEY TO BE NOTICED

Scott Alan Kronland (See above for address) ATTORNEY TO BE NOTICED

Stacey M. Leyton (See above for address)

Case: 4:09-cv-2306 As of: 11/13/2017 04:18 PM PST 6 of 68

ATTORNEY TO BE NOTICED

Stephen P. Berzon (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Andy Martinez on behalf of themselves and a class of those similary situated

represented by Anne Nelson Arkush (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Caroline Place Cincotta (See above for address) ATTORNEY TO BE NOTICED

Emily Butler White (See above for address) TERMINATED: 12/28/2010

Peder J. Thoreen (See above for address) ATTORNEY TO BE NOTICED

Scott Alan Kronland (See above for address) ATTORNEY TO BE NOTICED

Stacey M. Leyton (See above for address) ATTORNEY TO BE NOTICED

Stephen P. Berzon (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Service Employees International Union − United Health Care Workers West

represented by Anne Nelson Arkush (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Caroline Place Cincotta (See above for address) ATTORNEY TO BE NOTICED

Emily Butler White (See above for address) TERMINATED: 12/28/2010

Peder J. Thoreen (See above for address) ATTORNEY TO BE NOTICED

Scott Alan Kronland (See above for address) ATTORNEY TO BE NOTICED

Stacey M. Leyton (See above for address) ATTORNEY TO BE NOTICED

Stephen P. Berzon (See above for address)

Case: 4:09-cv-2306 As of: 11/13/2017 04:18 PM PST 7 of 68

ATTORNEY TO BE NOTICED

Plaintiff
Service Employees International Union United Long−Term Care Workers

represented by Anne Nelson Arkush (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Caroline Place Cincotta (See above for address) ATTORNEY TO BE NOTICED

Emily Butler White (See above for address) TERMINATED: 12/28/2010

Peder J. Thoreen (See above for address) ATTORNEY TO BE NOTICED

Scott Alan Kronland (See above for address) ATTORNEY TO BE NOTICED

Stacey M. Leyton (See above for address) ATTORNEY TO BE NOTICED

Stephen P. Berzon (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Service Employees International Union Local 521

represented by Anne Nelson Arkush (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Caroline Place Cincotta (See above for address) ATTORNEY TO BE NOTICED

Emily Butler White (See above for address) TERMINATED: 12/28/2010

Peder J. Thoreen (See above for address) ATTORNEY TO BE NOTICED

Scott Alan Kronland (See above for address) ATTORNEY TO BE NOTICED

Stacey M. Leyton (See above for address) ATTORNEY TO BE NOTICED

Stephen P. Berzon (See above for address) ATTORNEY TO BE NOTICED

Plaintiff

Case: 4:09-cv-2306 As of: 11/13/2017 04:18 PM PST 8 of 68

Service Employees International Union California State Council

represented by Anne Nelson Arkush (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Caroline Place Cincotta (See above for address) ATTORNEY TO BE NOTICED

Emily Butler White (See above for address) TERMINATED: 12/28/2010

Peder J. Thoreen (See above for address) ATTORNEY TO BE NOTICED

Scott Alan Kronland (See above for address) ATTORNEY TO BE NOTICED

Stacey M. Leyton (See above for address) ATTORNEY TO BE NOTICED

Stephen P. Berzon (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Sia Chue Yang on behalf of themselves and a class of those similary situated TERMINATED: 01/11/2010

represented by Anne Nelson Arkush (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Emily Butler White (See above for address) TERMINATED: 12/28/2010

Peder J. Thoreen (See above for address) ATTORNEY TO BE NOTICED

Scott Alan Kronland (See above for address) ATTORNEY TO BE NOTICED

Stacey M. Leyton (See above for address) ATTORNEY TO BE NOTICED

Stephen P. Berzon (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Patsy Miller on behalf of themselves and a class of those similary situated

represented by Anne Nelson Arkush (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Caroline Place Cincotta (See above for address) ATTORNEY TO BE NOTICED

Case: 4:09-cv-2306 As of: 11/13/2017 04:18 PM PST 9 of 68

Plaintiff Carolyn Stewart on behalf of themselves and a class of those similarly situated
Plaintiff United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO
Plaintiff California United Homecare Workers

Emily Butler White (See above for address) TERMINATED: 12/28/2010
Peder J. Thoreen (See above for address) ATTORNEY TO BE NOTICED
Scott Alan Kronland (See above for address) ATTORNEY TO BE NOTICED
Stacey M. Leyton (See above for address) ATTORNEY TO BE NOTICED
Stephen P. Berzon (See above for address) ATTORNEY TO BE NOTICED
represented by Peder J. Thoreen (See above for address) ATTORNEY TO BE NOTICED
Scott Alan Kronland (See above for address) ATTORNEY TO BE NOTICED
Stacey M. Leyton (See above for address) ATTORNEY TO BE NOTICED
Stephen P. Berzon (See above for address) ATTORNEY TO BE NOTICED
represented by Peder J. Thoreen (See above for address) ATTORNEY TO BE NOTICED
Scott Alan Kronland (See above for address) ATTORNEY TO BE NOTICED
Stacey M. Leyton (See above for address) ATTORNEY TO BE NOTICED
Stephen P. Berzon (See above for address) ATTORNEY TO BE NOTICED
represented by Peder J. Thoreen (See above for address) ATTORNEY TO BE NOTICED
Scott Alan Kronland (See above for address) ATTORNEY TO BE NOTICED

Case: 4:09-cv-2306 As of: 11/13/2017 04:18 PM PST 10 of 68

Stacey M. Leyton (See above for address) ATTORNEY TO BE NOTICED
Stephen P. Berzon (See above for address) ATTORNEY TO BE NOTICED

V. Defendant Arnold Schwarzenegger Governor of the State of California TERMINATED: 04/04/2013
Defendant

represented by Susan M. Carson Deputy Attorney General 455 Golden Gate Avenue Suite 11000 San Francisco, CA 94102−7004 415−703−5580 Fax: 415−703−5480 Email: susan.carson@doj.ca.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gregory David Brown Office of the Attorney General 455 Golden Gate Avenue Suite 11000 San Francisco, CA 94102 415−703−5461 Fax: 415−703−5480 Email: Gregory.Brown@doj.ca.gov ATTORNEY TO BE NOTICED
Jennifer A. Bunshoft Department of Justice Office of the Attorney General 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102 415−703−5085 Fax: 415−703−5480 Email: jennifer.bunshoft@doj.ca.gov ATTORNEY TO BE NOTICED
Karin S. Schwartz Office of the Attorney General 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102−7004 415−703−1382 Email: Karin.Schwartz@doj.ca.gov ATTORNEY TO BE NOTICED
Michael A. Zwibelman Office of the Attorney General Department of Justice 455 Golden Gate Avenue Suite 11000 Invalid email address as of 03/30/10 San Francisco, CA 94102−7004 415.703.5841 Fax: 415.703.5480 Email: invalidaddress@invalidaddress.com ATTORNEY TO BE NOTICED

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John A. Wagner Director of the California Department of Social Services

represented by Susan M. Carson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gregory David Brown (See above for address) ATTORNEY TO BE NOTICED

Jennifer A. Bunshoft (See above for address) ATTORNEY TO BE NOTICED

Karin S. Schwartz (See above for address) ATTORNEY TO BE NOTICED

Michael A. Zwibelman (See above for address) ATTORNEY TO BE NOTICED

Defendant
David Maxwell−Jolly Director of the California Department of Health Care Services

represented by Susan M. Carson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gregory David Brown (See above for address) ATTORNEY TO BE NOTICED

Jennifer A. Bunshoft (See above for address) ATTORNEY TO BE NOTICED

Karin S. Schwartz (See above for address) ATTORNEY TO BE NOTICED

Michael A. Zwibelman (See above for address) ATTORNEY TO BE NOTICED

Defendant
John Chiang California State Controller TERMINATED: 04/04/2013

represented by Susan M. Carson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gregory David Brown (See above for address) ATTORNEY TO BE NOTICED

Jennifer A. Bunshoft (See above for address) ATTORNEY TO BE NOTICED

Karin S. Schwartz (See above for address) ATTORNEY TO BE NOTICED

Michael A. Zwibelman (See above for address) ATTORNEY TO BE NOTICED

Case: 4:09-cv-2306 As of: 11/13/2017 04:18 PM PST 12 of 68

Defendant Fresno County TERMINATED: 05/24/2013
Defendant Fresno County In−Home Supportive Services Public Authority TERMINATED: 05/24/2013
Amicus County of San Mateo

represented by Michael Gary Woods McCormick, Barstow, Sheppard, Wayte & Carruth 5 River Park Place East Fresno, CA 93720 (559) 433−1300 Fax: (559) 433−2300 Email: mike.woods@mccormickbarstow.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mandy Louise Jeffcoach McCormick Barstow Sheppard 5 River Park Pl E Fresno, CA 93720 559−433−1300 Email: mandy.jeffcoach@mccormickbarstow.com (Inactive) ATTORNEY TO BE NOTICED
Susan M. Carson (See above for address) ATTORNEY TO BE NOTICED
Timothy John Buchanan McCormick Barstow et al 7647 North Fresno Street Fresno, CA 93720 559−433−1300 Fax: 559−433−2300 Email: tim.buchanan@mccormickbarstow.com ATTORNEY TO BE NOTICED
represented by Michael Gary Woods (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mandy Louise Jeffcoach (See above for address) ATTORNEY TO BE NOTICED
Susan M. Carson (See above for address) ATTORNEY TO BE NOTICED
Timothy John Buchanan (See above for address) ATTORNEY TO BE NOTICED
represented by David Abraham Silberman San Mateo County Counsel's Office 400 County Center 6th Floor Redwood City, CA 94063 650 363−4749 Fax: 650 363−4034 Email: dsilberman@co.sanmateo.ca.us LEAD ATTORNEY

Case: 4:09-cv-2306 As of: 11/13/2017 04:18 PM PST 13 of 68 ATTORNEY TO BE NOTICED

Date Filed 05/26/2009
05/26/2009 05/26/2009 05/26/2009 05/26/2009 06/04/2009
06/04/2009
06/04/2009
06/04/2009

# Docket Text
1 COMPLAINT against Arnold Schwarzenegger, John A. Wagner, David Maxwell−Jolly, John Chiang, Fresno County, Fresno County In−Home Supportive Services Public Authority ( Filing fee $ 350, receipt number 34611032471.). Filed byAlex Brown, Donna Brown, Mikesha Martinez, Chloe Lipton, Herbert M. Meyer, Leslie Gordon, Charlene Ayers, Willie Beatrice Sheppard, Andy Martinez, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Service Employees International Union Local 521, Service Employees International Union California State Council, Lydia Dominguez. (Attachments: # 1 Civil Cover Sheet)(cp, COURT STAFF) (Filed on 5/26/2009) (Entered: 05/27/2009)
2 Certificate of Interested Entities by Alex Brown, Donna Brown, Mikesha Martinez, Chloe Lipton, Herbert M. Meyer, Leslie Gordon, Charlene Ayers, Willie Beatrice Sheppard, Andy Martinez, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Service Employees International Union Local 521, Service Employees International Union California State Council, Lydia Dominguez (cp, COURT STAFF) (Filed on 5/26/2009) (cp, COURT STAFF). (Entered: 05/27/2009)
3 Summons Issued as to Arnold Schwarzenegger, John A. Wagner, David Maxwell−Jolly, John Chiang, Fresno County, Fresno County In−Home Supportive Services Public Authority. (cp, COURT STAFF) (Filed on 5/26/2009) (Entered: 05/27/2009)
4 ADR SCHEDULING ORDER: Case Management Statement due by 8/25/2009. Case Management Conference set for 9/1/2009 02:00 PM. (Attachments: # 1 Standing Order)(cp, COURT STAFF) (Filed on 5/26/2009) (Entered: 05/27/2009)
CASE DESIGNATED for Electronic Filing. (cp, COURT STAFF) (Filed on 5/26/2009) (Entered: 05/27/2009)
5 MOTION for Preliminary Injunction ; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT filed by Mikesha Martinez, , Charlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard(Leyton, Stacey) (Filed on 6/4/2009) Modified on 6/5/2009 (cp, COURT STAFF). (Entered: 06/04/2009)
6 Declaration of David F. Altman filed byMikesha Martinez, Charlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Related document(s) 5 ) (Leyton, Stacey) (Filed on 6/4/2009) Modified on 6/5/2009 (cp, COURT STAFF). (Entered: 06/04/2009)
7 Declaration of Teresa Armas filed byMikesha Martinez, , Charlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Leyton, Stacey) (Filed on 6/4/2009) Modified on 6/5/2009 (cp, COURT STAFF). (Entered: 06/04/2009)
8 Declaration of Charlene Ayers filed byMikesha Martinez, Charlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Service Employees International Union California State

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Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Related document(s) 5 ) (Leyton, Stacey) (Filed on 6/4/2009) Modified on 6/5/2009 (cp, COURT STAFF). (Entered: 06/04/2009)
9 Declaration of Willie Billops filed byMikesha Martinez, Charlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Leyton, Stacey) (Filed on 6/4/2009) Modified on 6/5/2009 (cp, COURT STAFF). (Entered: 06/04/2009)
10 Declaration of Brenda Blannon filed byMikesha Martinez, Charlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Leyton, Stacey) (Filed on 6/4/2009) Modified on 6/5/2009 (cp, COURT STAFF). (Entered: 06/04/2009)
11 Declaration of Donna Brown filed byMikesha Martinez, Charlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Leyton, Stacey) (Filed on 6/4/2009) Modified on 6/5/2009 (cp, COURT STAFF). (Entered: 06/04/2009)
12 Declaration of Hui Chuen Chen filed byMikesha Martinez, Charlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Related document(s) 5 ) (Leyton, Stacey) (Filed on 6/4/2009) Modified on 6/5/2009 (cp, COURT STAFF). (Entered: 06/04/2009)
13 Declaration of Lisa Brown filed byMikesha Martinez, Charlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Leyton, Stacey) (Filed on 6/4/2009) Modified on 6/5/2009 (cp, COURT STAFF). (Entered: 06/04/2009)
14 Declaration of Brittany Calhoun filed byMikesha Martinez, Charlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard (Leyton, Stacey) (Filed on 6/4/2009) Modified on 6/5/2009 (cp, COURT STAFF). (Entered: 06/04/2009)
15 Declaration of Ebe Cerqua filed byMikesha Martinez, Charlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard (Leyton, Stacey) (Filed on 6/4/2009) Modified on 6/5/2009 (cp, COURT STAFF). (Entered: 06/04/2009)

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16 Declaration of LYDIA DOMINGUEZ filed byMikesha Martinez, Charlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Leyton, Stacey) (Filed on 6/4/2009) Modified on 6/5/2009 (cp, COURT STAFF). (Entered: 06/04/2009)
17 Declaration of PENNY DURHAM filed byMikesha Martinez, Charlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Leyton, Stacey) (Filed on 6/4/2009) Modified on 6/5/2009 (cp, COURT STAFF). (Entered: 06/04/2009)
18 Declaration of MARIA LUISA FIGUEROA filed byMikesha Martinez, Charlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Leyton, Stacey) (Filed on 6/4/2009) Modified on 6/5/2009 (cp, COURT STAFF). (Entered: 06/04/2009)
19 Declaration of CAROL GOLUBOCK filed byMikesha Martinez, Charlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E) (Leyton, Stacey) (Filed on 6/4/2009) Modified on 6/5/2009 (cp, COURT STAFF). (Entered: 06/04/2009)
20 Declaration of Leslie Gordon filed byMikesha Martinez, Charlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Leyton, Stacey) (Filed on 6/4/2009) Modified on 6/5/2009 (cp, COURT STAFF). (Entered: 06/04/2009)
21 Declaration of Sara Hamry filed byMikesha Martinez, Charlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. ((Leyton, Stacey) (Filed on 6/4/2009) Modified on 6/5/2009 (cp, COURT STAFF). (Entered: 06/04/2009)
22 Declaration of CANDACE HOWES filed byMikesha Martinez, Charlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Attachments: # 1 Exhibit A, # 2 Exhibit B) (Leyton, Stacey) (Filed on 6/4/2009) Modified on 6/5/2009 (cp, COURT STAFF). (Entered: 06/04/2009)
23 Declaration of ANA HUAMANI filed byMikesha Martinez, Charlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees

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International Union United Long−Term Care Workers, Willie Beatrice Sheppard (Leyton, Stacey) (Filed on 6/4/2009) Modified on 6/5/2009 (cp, COURT STAFF). (Entered: 06/04/2009)
24 Declaration of NATALIE HUNTER filed byMikesha Martinez, Charlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Leyton, Stacey) (Filed on 6/4/2009) Modified on 6/5/2009 (cp, COURT STAFF). (Entered: 06/04/2009)
25 Declaration of DIONNE JIMENEZ filed byMikesha Martinez, Charlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Attachments: # 1 Exhibit A1, # 2 Exhibit A2, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D1, # 6 Exhibit D2, # 7 Exhibit E1, # 8 Exhibit E2, # 9 Exhibit E3) (Leyton, Stacey) (Filed on 6/4/2009) Modified on 6/5/2009 (cp, COURT STAFF). (Entered: 06/04/2009)
26 Declaration of PUI LAM filed byMikesha Martinez, Charlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Leyton, Stacey) (Filed on 6/4/2009) Modified on 6/5/2009 (cp, COURT STAFF). (Entered: 06/04/2009)
27 Declaration of SUSAN L' AMIE filed byMikesha Martinez, Charlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard (Leyton, Stacey) (Filed on 6/4/2009) Modified on 6/5/2009 (cp, COURT STAFF). (Entered: 06/04/2009)
28 Declaration of MITCHELL LAPLANTE filed byMikesha Martinez, Charlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Attachments: # 1 Exhibit A) (Leyton, Stacey) (Filed on 6/4/2009) Modified on 6/5/2009 (cp, COURT STAFF). (Entered: 06/04/2009)
29 Declaration of JEFFREY LEE filed byMikesha Martinez, Charlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Leyton, Stacey) (Filed on 6/4/2009) Modified on 6/5/2009 (cp, COURT STAFF). (Entered: 06/04/2009)
30 Declaration of YOUNG EUN LEE filed byMikesha Martinez, Charlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Leyton, Stacey) (Filed on 6/4/2009) Modified on 6/5/2009 (cp, COURT STAFF).

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(Entered: 06/04/2009)
31 Declaration of EMILY MADANAT filed byMikesha Martinez, Charlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Leyton, Stacey) (Filed on 6/4/2009) Modified on 6/5/2009 (cp, COURT STAFF). (Entered: 06/04/2009)
32 Declaration of ANDY MARTINEZ filed byMikesha Martinez, Charlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employee International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard (Leyton, Stacey) (Filed on 6/4/2009) Modified on 6/5/2009 (cp, COURT STAFF). (Entered: 06/04/2009)
33 Declaration of CARLOS MARTINEZ filed byMikesha Martinez, Charlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employee International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Leyton, Stacey) (Filed on 6/4/2009) Modified on 6/5/2009 (cp, COURT STAFF). (Entered: 06/04/2009)
34 Declaration of SHAWNA MARZETTE filed byMikesha Martinez, Charlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employee International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard (Leyton, Stacey) (Filed on 6/4/2009) Modified on 6/5/2009 (cp, COURT STAFF). (Entered: 06/04/2009)
35 Declaration of HERBERT M. MEYER filed byMikesha Martinez, Charlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard (Leyton, Stacey) (Filed on 6/4/2009) Modified on 6/5/2009 (cp, COURT STAFF). (Entered: 06/04/2009)
36 Declaration of SUSANNAH MCDEVITT filed byMikesha Martinez, Charlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Attachments: # 1 Exhibit A) (Leyton, Stacey) (Filed on 6/4/2009) Modified on 6/5/2009 (cp, COURT STAFF). (Entered: 06/04/2009)
37 Declaration of HYUN NAM filed byMikesha Martinez, Charlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Related document(s) 5 ) (Leyton, Stacey) (Filed on 6/4/2009) Modified on 6/5/2009 (cp, COURT STAFF). (Entered: 06/04/2009)

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38 Declaration of JACKIE PEPPARS filed byMikesha Martinez, Charlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Leyton, Stacey) (Filed on 6/4/2009) Modified on 6/5/2009 (cp, COURT STAFF). (Entered: 06/04/2009)
39 Declaration of VIRGINIA RAE filed byMikesha Martinez, Charlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Leyton, Stacey) (Filed on 6/4/2009) Modified on 6/5/2009 (cp, COURT STAFF). (Entered: 06/04/2009)
40 Declaration of TAMARA RASBERRY filed byMikesha Martinez, Charlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H) (Leyton, Stacey) (Filed on 6/4/2009) Modified on 6/5/2009 (cp, COURT STAFF). (Entered: 06/04/2009)
41 Declaration of DIANA ROBINSON filed byMikesha Martinez, Charlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Leyton, Stacey) (Filed on 6/4/2009) Modified on 6/5/2009 (cp, COURT STAFF). (Entered: 06/04/2009)
42 Declaration of SOCORRO ROMERO filed byMikesha Martinez, Charlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Leyton, Stacey) (Filed on 6/4/2009) Modified on 6/5/2009 (cp, COURT STAFF). (Entered: 06/04/2009)
43 Declaration of DEBRA ROTH filed byMikesha Martinez, Charlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Leyton, Stacey) (Filed on 6/4/2009) Modified on 6/5/2009 (cp, COURT STAFF). (Entered: 06/04/2009)
44 Declaration of ARMINDA SANCHEZ filed byMikesha Martinez, Charlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Leyton, Stacey) (Filed on 6/4/2009) Modified on 6/5/2009 (cp, COURT STAFF). (Entered: 06/04/2009)
45 Declaration of JOHN F. SCHNELLE filed byMikesha Martinez, Charlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Service Employees International Union California State

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Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Attachments: # 1 Exhibit A) (Leyton, Stacey) (Filed on 6/4/2009) Modified on 6/5/2009 (cp, COURT STAFF). (Entered: 06/04/2009)
46 Declaration of CHRISTINE SCHWARTZ filed byMikesha Martinez, Charlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Leyton, Stacey) (Filed on 6/4/2009) Modified on 6/5/2009 (cp, COURT STAFF). (Entered: 06/04/2009)
47 Declaration of WILLIE BEATRICE SHEPPARD filed byMikesha Martinez, Charlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Leyton, Stacey) (Filed on 6/4/2009) Modified on 6/5/2009 (cp, COURT STAFF). (Entered: 06/04/2009)
48 Declaration of PAMELA TIEDT filed byMikesha Martinez, Charlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Leyton, Stacey) (Filed on 6/4/2009) Modified on 6/5/2009 (cp, COURT STAFF). (Entered: 06/04/2009)
49 Translator Certification of Curtis Draves filed byMikesha Martinez, Charlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Leyton, Stacey) (Filed on 6/4/2009) Modified on 6/5/2009 (cp, COURT STAFF). (Entered: 06/04/2009)
50 Declaration of JUSZTINA TRAUM filed byMikesha Martinez, Charlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Leyton, Stacey) (Filed on 6/4/2009) Modified on 6/5/2009 (cp, COURT STAFF). (Entered: 06/04/2009)
51 Declaration of JULIE WEISSMAN−STEINBAUGH filed byMikesha Martinez, Charlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Leyton, Stacey) (Filed on 6/4/2009) Modified on 6/5/2009 (cp, COURT STAFF). (Entered: 06/04/2009)
52 Declaration of SADIE WILSON filed byMikesha Martinez, Charlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard.

Case: 4:09-cv-2306 As of: 11/13/2017 04:18 PM PST 20 of 68

06/04/2009 06/04/2009 06/04/2009 06/04/2009 06/04/2009 06/05/2009

(Leyton, Stacey) (Filed on 6/4/2009) Modified on 6/5/2009 (cp, COURT STAFF). (Entered: 06/04/2009)
53 Request for Judicial Notice re 5 MOTION for Preliminary Injunction filed byMikesha Martinez, Charlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R, # 19 Exhibit S, # 20 Exhibit T, # 21 Exhibit U, # 22 Exhibit V, # 23 Exhibit W, # 24 Exhibit X)(Related document(s) 5 ) (Leyton, Stacey) (Filed on 6/4/2009) Modified on 6/5/2009 (cp, COURT STAFF). (Entered: 06/04/2009)
54 Proposed Order re 5 MOTION for Preliminary Injunction by Mikesha Martinez, Charlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Leyton, Stacey) (Filed on 6/4/2009) Modified on 6/5/2009 (cp, COURT STAFF). (Entered: 06/04/2009)
55 EX PARTE MOTION TO SHORTEN TIME FOR MOTION FOR A PRELIMINARY INJUNCTION SO THAT RELIEF CAN BE GRANTED BEFORE JULY 1, 2009, OR, IN THE ALTERNATIVE, FOR A TEMPORARY RESTRAINING ORDER PENDING A RULING ON PRELIMINARY INJUNCTION filed by Mikesha Martinez, Charlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Leyton, Stacey) (Filed on 6/4/2009) Modified on 6/5/2009 (cp, COURT STAFF). (Entered: 06/04/2009)
56 Declaration of Stacey Leyton in Support of 55 PLAINTIFFS EX PARTE MOTION TO SHORTEN TIME FOR MOTION FOR A PRELIMINARY INJUNCTION SO THAT RELIEF CAN BE GRANTED BEFORE JULY 1, 2009, OR, IN THE ALTERNATIVE, FOR A TEMPORARY RESTRAINING ORDER PENDING A RULING ON PRELIMINARY I filed byMikesha Martinez, Charlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Related document(s) 55 ) (Leyton, Stacey) (Filed on 6/4/2009) Modified on 6/5/2009 (cp, COURT STAFF). (Entered: 06/04/2009)
57 Proposed Order re 55 EX PARTE MOTION TO SHORTEN TIME FOR MOTION FOR A PRELIMINARY INJUNCTION SO THAT RELIEF CAN BE GRANTED BEFORE JULY 1, 2009, OR, IN THE ALTERNATIVE, FOR A TEMPORARY RESTRAINING ORDER PENDING A RULING ON PRELIMINARY I by Mikesha Martinez, Charlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Leyton, Stacey) (Filed on 6/4/2009) Modified on 6/5/2009 (cp, COURT STAFF). (Entered: 06/04/2009)
58 CERTIFICATE OF SERVICE by Mikesha Martinez (Leyton, Stacey) (Filed on 6/5/2009) (Entered: 06/05/2009)

Case: 4:09-cv-2306 As of: 11/13/2017 04:18 PM PST 21 of 68

06/05/2009 06/05/2009 06/05/2009
06/08/2009 06/09/2009 06/10/2009 06/10/2009
06/11/2009
06/11/2009

59 ORDER by Judge Claudia Wilken granting 55 Motion to Shorten Time (cwlc3, COURT STAFF) (Filed on 6/5/2009) (Entered: 06/05/2009)
Set/Reset Hearings: Motion Hearing set for 6/25/2009 02:00 PM. (scc, COURT STAFF) (Filed on 6/5/2009) (Entered: 06/05/2009)
60 EXHIBIT A (CD) re 40 Declaration in Support of Tamara Rasberry filed byCharlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Mikesha Martinez, Herbert M. Meyer, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Related document(s) 40 ) (cp, COURT STAFF) (Filed on 6/5/2009) (Entered: 06/08/2009)
61 Ex Parte Application re 5 MOTION for Preliminary Injunction filed by David Maxwell−Jolly, Arnold Schwarzenegger, John A. Wagner. (Attachments: # 1 Proposed Order)(Carson, Susan) (Filed on 6/8/2009) (Entered: 06/08/2009)
62 ORDER by Judge CLAUDIA WILKEN granting 61 Ex Parte Application to enlarge time to oppose moton for preliminary injunction (scc, COURT STAFF) (Filed on 6/9/2009) (Entered: 06/09/2009)
63 Ex Parte Application to Enlarge Time to Oppose Plaintiffs' Motion for Preliminary Injunction filed by Fresno County, Fresno County In−Home Supportive Services Public Authority. (Attachments: # 1 Declaration of Michael G. Woods in Support of Ex Parte Application to Enlarge Application to Oppose Plaintiffs' Motion for Preliminary Injunction)(Woods, Michael) (Filed on 6/10/2009) (Entered: 06/10/2009)
64 SUMMONS Returned Executed by Leslie Gordon, Lydia Dominguez, Service Employees International Union Local 521, Herbert M. Meyer, Mikesha Martinez, Alex Brown, Willie Beatrice Sheppard, Service Employees International Union California State Council, Andy Martinez, Chloe Lipton, Charlene Ayers, Service Employees International Union United Health Care Workers West, Donna Brown, Service Employees International Union United Long−Term Care Workers. John Chiang served on 5/27/2009, answer due 6/16/2009; Fresno County served on 5/27/2009, answer due 6/16/2009; Fresno County In−Home Supportive Services Public Authority served on 5/28/2009, answer due 6/17/2009; David Maxwell−Jolly served on 5/28/2009, answer due 6/17/2009; Arnold Schwarzenegger served on 5/28/2009, answer due 6/17/2009; John A. Wagner served on 5/28/2009, answer due 6/17/2009. (Leyton, Stacey) (Filed on 6/10/2009) (Entered: 06/10/2009)
65 Statement of Non−Opposition; Correction of Inaccurate Statements by Defendants re 63 Ex Parte Application to Enlarge Time to Oppose Plaintiffs' Motion for Preliminary Injunction, filed by Charlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Mikesha Martinez, Herbert M. Meyer, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Attachments: # 1 Affidavit Declaration of Stacey M. Leyton in Support of Non−Opposition; Correction of Inaccurate Statements by Defendants)(Related document(s) 63 ) (Leyton, Stacey) (Filed on 6/11/2009) Modified on 6/12/2009 (jlm, COURT STAFF). Modified on 6/12/2009 (jlm, COURT STAFF). (Entered: 06/11/2009)
66 CERTIFICATE OF SERVICE as to Fresno In−Home Supportive Services re 43 Declaration in Support, 52 Declaration in Support, 44 Declaration in Support, 38 Declaration in Support, 24 Declaration in Support, 20 Declaration in Support, 34 Declaration in Support, 13 Declaration in Support, 9 Declaration in Support, 28 Declaration in Support, 5 Motion for Preliminary Injunction, 27 Declaration in Support, 58 Certificate of Service, 22 Declaration in Support, 57 Proposed Order, 25 Declaration in Support, 31 Declaration in Support, 26 Declaration in Support, 45 Declaration in Support, 18 Declaration in Support, 30 Declaration in Support, 42 Declaration in Support, 11 Declaration in Support, 19 Declaration in Support, 51 Declaration in Support, 17 Declaration in Support, 47 Declaration in Support, 23 Declaration in Support, 16 Declaration in Support, 39 Declaration in Support, 7 Declaration in Support, 6 Declaration in Support, 33 Declaration in Support, 50

Case: 4:09-cv-2306 As of: 11/13/2017 04:18 PM PST 22 of 68

06/11/2009
06/11/2009 06/11/2009 06/11/2009

Declaration in Support, 49 Declaration in Support, 53 Request for Judicial Notice, 8 Declaration in Support, 12 Declaration in Support, 37 Declaration in Support, 36 Declaration in Support, 56 Declaration in Support, 40 Declaration in Support, 21 Declaration in Support, 46 Declaration in Support, 41 Declaration in Support, 14 Declaration in Support, 54 Proposed Order, 10 Declaration in Support, 35 Declaration in Support, 32 Declaration in Support, 29 Declaration in Support, 15 Declaration in Support, filed by Charlene Ayers, Alex Brown, Donna Brown, John Chiang, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Mikesha Martinez, Herbert M. Meyer, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard (Leyton, Stacey) (Filed on 6/11/2009) Modified on 6/12/2009 (jlm, COURT STAFF). Modified on 6/12/2009 (jlm, COURT STAFF). Modified on 6/12/2009 (jlm, COURT STAFF). (Entered: 06/11/2009)
67 CERTIFICATE OF SERVICE as to Fresno County re 43 Declaration in Support, 52 Declaration in Support, 44 Declaration in Support, 38 Declaration in Support, 24 Declaration in Support, 20 Declaration in Support, 34 Declaration in Support, 13 Declaration in Support, 9 Declaration in Support, 28 Declaration in Support, 5 Motion for Preliminary Injunction, 27 Declaration in Support, 58 Certificate of Service, 22 Declaration in Support, 57 Proposed Order, 25 Declaration in Support, 31 Declaration in Support, 26 Declaration in Support, 45 Declaration in Support, 18 Declaration in Support, 30 Declaration in Support, 42 Declaration in Support, 11 Declaration in Support, 19 Declaration in Support, 51 Declaration in Support, 17 Declaration in Support, 47 Declaration in Support, 23 Declaration in Support, 16 Declaration in Support, 39 Declaration in Support, 7 Declaration in Support, 6 Declaration in Support, 33 Declaration in Support, 50 Declaration in Support, 49 Declaration in Support, 53 Request for Judicial Notice, 8 Declaration in Support, 12 Declaration in Support, 37 Declaration in Support, 36 Declaration in Support, 56 Declaration in Support, 40 Declaration in Support, 21 Declaration in Support, 46 Declaration in Support, 41 Declaration in Support, 14 Declaration in Support, 54 Proposed Order, 10 Declaration in Support, 35 Declaration in Support, 32 Declaration in Support, 29 Declaration in Support, 15 Declaration in Support, filed by Charlene Ayers, Alex Brown, Donna Brown, John Chiang, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Mikesha Martinez, Herbert M. Meyer, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard Fresno County (Leyton, Stacey) (Filed on 6/11/2009) Modified on 6/12/2009 (jlm, COURT STAFF). Modified on 6/12/2009 (jlm, COURT STAFF). (Entered: 06/11/2009)
68 CERTIFICATE OF SERVICE as to Fresno County In−Home Supportive Services re 59 Order on Motion to Shorten Time filed by Charlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Mikesha Martinez, Herbert M. Meyer, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard (Leyton, Stacey) (Filed on 6/11/2009) Modified on 6/12/2009 (jlm, COURT STAFF). (Entered: 06/11/2009)
69 CERTIFICATE OF SERVICE as to Fresno County re 59 Order on Motion to Shorten Time filed by Charlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Mikesha Martinez, Herbert M. Meyer, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard (Leyton, Stacey) (Filed on 6/11/2009) Modified on 6/12/2009 (jlm, COURT STAFF). (Entered: 06/11/2009)
70 CERTIFICATE OF SERVICE as to Fresno County In−Home Supportive Services re 60 Exhibit A to the Declaration of Tamara Rasberry (CD) filed by Charlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy

Case: 4:09-cv-2306 As of: 11/13/2017 04:18 PM PST 23 of 68

06/11/2009
06/11/2009 06/11/2009 06/11/2009 06/11/2009 06/11/2009 06/11/2009 06/11/2009 06/11/2009 06/11/2009 06/11/2009 06/11/2009

Martinez, Mikesha Martinez, Herbert M. Meyer, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard (Leyton, Stacey) (Filed on 6/11/2009) Modified on 6/12/2009 (jlm, COURT STAFF). Modified on 6/12/2009 (jlm, COURT STAFF). (Entered: 06/11/2009)
71 CERTIFICATE OF SERVICE as to Fresno County re 60 Exhibit A to the Declaration of Tamara Rasberry (CD) filed by Charlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Mikesha Martinez, Herbert M. Meyer, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard (Leyton, Stacey) (Filed on 6/11/2009) Modified on 6/12/2009 (jlm, COURT STAFF). (Entered: 06/11/2009)
72 Memorandum in Opposition re 5 Motion for Preliminary Injunction filed by Fresno County, Fresno County In−Home Supportive Services Public Authority. (Woods, Michael) (Filed on 6/11/2009) Modified on 6/12/2009 (jlm, COURT STAFF). (Entered: 06/11/2009)
73 OBJECTIONS to 45 Declaration of John F. Schnelle in Support, filed by Fresno County, Fresno County In−Home Supportive Services Public Authority. (Woods, Michael) (Filed on 6/11/2009) Modified on 6/12/2009 (jlm, COURT STAFF). (Entered: 06/11/2009)
74 OBJECTIONS to 50 Declaration of Jusztina Traum in Support, filed by Fresno County, Fresno County In−Home Supportive Services Public Authority. (Woods, Michael) (Filed on 6/11/2009) Modified on 6/12/2009 (jlm, COURT STAFF). Modified on 6/12/2009 (jlm, COURT STAFF). (Entered: 06/11/2009)
75 OBJECTIONS to 22 Declaration of Candace Howes in Support, filed by Fresno County, Fresno County In−Home Supportive Services Public Authority. (Woods, Michael) (Filed on 6/11/2009) Modified on 6/12/2009 (jlm, COURT STAFF). (Entered: 06/11/2009)
76 OBJECTIONS to 33 Declaration of Carlos Martinez in Support, filed by Fresno County, Fresno County In−Home Supportive Services Public Authority. (Woods, Michael) (Filed on 6/11/2009) Modified on 6/12/2009 (jlm, COURT STAFF). (Entered: 06/11/2009)
77 OBJECTIONS to 38 Declaration of Jackie Peppars in Support, by Fresno County, Fresno County In−Home Supportive Services Public Authority. (Woods, Michael) (Filed on 6/11/2009) Modified on 6/12/2009 (jlm, COURT STAFF). (Entered: 06/11/2009)
78 OBJECTIONS to 28 Declaration of Mitchell Laplante in Support, filed by Fresno County, Fresno County In−Home Supportive Services Public Authority. (Woods, Michael) (Filed on 6/11/2009) Modified on 6/12/2009 (jlm, COURT STAFF). (Entered: 06/11/2009)
79 OBJECTIONS to 25 Declaration of Dionne Jimenez in Support, filed by Fresno County, Fresno County In−Home Supportive Services Public Authority. (Woods, Michael) (Filed on 6/11/2009) Modified on 6/12/2009 (jlm, COURT STAFF). (Entered: 06/11/2009)
80 OBJECTIONS to 36 Declaration of Susannah McDevitt in Support, filed by Fresno County, Fresno County In−Home Supportive Services Public Authority. (Woods, Michael) (Filed on 6/11/2009) Modified on 6/12/2009 (jlm, COURT STAFF). (Entered: 06/11/2009)
81 OBJECTIONS to 37 Declaration of Hyun Nam in Support, filed by Fresno County, Fresno County In−Home Supportive Services Public Authority. (Woods, Michael) (Filed on 6/11/2009) Modified on 6/12/2009 (jlm, COURT STAFF). (Entered: 06/11/2009)
82 OBJECTIONS to 43 Declaration of Deborah Roth in Support, filed by Fresno County, Fresno County In−Home Supportive Services Public Authority. (Woods, Michael)

Case: 4:09-cv-2306 As of: 11/13/2017 04:18 PM PST 24 of 68

06/11/2009 06/11/2009 06/11/2009 06/11/2009 06/11/2009 06/11/2009 06/11/2009
06/11/2009 06/11/2009 06/11/2009 06/12/2009 06/12/2009 06/15/2009

(Filed on 6/11/2009) Modified on 6/12/2009 (jlm, COURT STAFF). (Entered: 06/11/2009)
83 OBJECTIONS to 40 Declaration of Tamara Rasberry in Support, filed by Fresno County, Fresno County In−Home Supportive Services Public Authority. (Woods, Michael) (Filed on 6/11/2009) Modified on 6/12/2009 (jlm, COURT STAFF). (Entered: 06/11/2009)
84 OBJECTIONS to 6 Declaration of David F. Altman in Support, filed by Fresno County, Fresno County In−Home Supportive Services Public Authority. (Woods, Michael) (Filed on 6/11/2009) Modified on 6/12/2009 (jlm, COURT STAFF). (Entered: 06/11/2009)
85 OBJECTIONS to 32 Declaration of Andy Martinez in Support, filed by Fresno County, Fresno County In−Home Supportive Services Public Authority. (Woods, Michael) (Filed on 6/11/2009) Modified on 6/12/2009 (jlm, COURT STAFF). (Entered: 06/11/2009)
86 OBJECTIONS to 13 Declaration of Lisa Brown in Support, filed by Fresno County, Fresno County In−Home Supportive Services Public Authority. (Woods, Michael) (Filed on 6/11/2009) Modified on 6/12/2009 (jlm, COURT STAFF). (Entered: 06/11/2009)
87 OBJECTIONS to 7 Declaration of Teresa Armas, Plaintiffs and Individuals Outside the County of Fresno in Support, filed by Fresno County, Fresno County In−Home Supportive Services Public Authority. (Woods, Michael) (Filed on 6/11/2009) Modified on 6/12/2009 (jlm, COURT STAFF). Modified on 6/12/2009 (jlm, COURT STAFF). (Entered: 06/11/2009)
88 Request for Judicial Notice re 72 Memorandum in Opposition filed by Fresno County, Fresno County In−Home Supportive Services Public Authority. (Related document(s) 72 ) (Woods, Michael) (Filed on 6/11/2009) Modified on 6/12/2009 (jlm, COURT STAFF). (Entered: 06/11/2009)
89 Declaration of Catherine E. Basham in Support of 72 Memorandum in Opposition filed by Fresno County, Fresno County In−Home Supportive Services Public Authority. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H)(Related document(s) 72 ) (Woods, Michael) (Filed on 6/11/2009) Modified on 6/12/2009 (jlm, COURT STAFF). (Entered: 06/11/2009)
90 Declaration of Sanja Kovacevic in Support of 72 Memorandum in Opposition filed by Fresno County, Fresno County In−Home Supportive Services Public Authority. (Related document(s) 72 ) (Woods, Michael) (Filed on 6/11/2009) Modified on 6/12/2009 (jlm, COURT STAFF). (Entered: 06/11/2009)
91 Declaration of Steve Sanchez in Support of 72 Memorandum in Opposition filed by Fresno County, Fresno County In−Home Supportive Services Public Authority. (Related document(s) 72 ) (Woods, Michael) (Filed on 6/11/2009) Modified on 6/12/2009 (jlm, COURT STAFF). (Entered: 06/11/2009)
92 Declaration of Kathleen Donawa in Support of 72 Memorandum in Opposition filed by Fresno County, Fresno County In−Home Supportive Services Public Authority. (Related document(s) 72 ) (Woods, Michael) (Filed on 6/11/2009) Modified on 6/12/2009 (jlm, COURT STAFF). (Entered: 06/11/2009)
93 Table of Contents and Table of Authorities re 72 Memorandum in Opposition filed by Fresno County, Fresno County In−Home Supportive Services Public Authority. (Related document(s) 72 ) (Woods, Michael) (Filed on 6/12/2009) Modified on 6/15/2009 (kc, COURT STAFF). (Entered: 06/12/2009)
94 ORDER re 63 ON MOTION TO ENLARGE TIME. Signed by Judge Claudia Wilken on 6/12/09. (scc, COURT STAFF) (Filed on 6/12/2009) (Entered: 06/12/2009)
95 Memorandum in Opposition to 5 MOTION for Preliminary Injunction filed by David Maxwell−Jolly, Arnold Schwarzenegger, John A. Wagner. (Carson, Susan) (Filed on 6/15/2009) Modified on 6/16/2009 (kc, COURT STAFF). (Entered: 06/15/2009)

Case: 4:09-cv-2306 As of: 11/13/2017 04:18 PM PST 25 of 68

06/15/2009 06/15/2009
06/15/2009 06/15/2009 06/16/2009 06/16/2009 06/16/2009 06/16/2009
06/16/2009 06/17/2009 06/18/2009 06/18/2009 06/18/2009

96 Declaration of Timothy T. Brown, Ph.D. in Support of 95 Memorandum in Opposition, to Plaintiffs' Motion for Preliminary Injunction filed byDavid Maxwell−Jolly, Arnold Schwarzenegger, John A. Wagner. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Related document(s) 95 ) (Carson, Susan) (Filed on 6/15/2009) (Entered: 06/15/2009)
97 Declaration of Eileen Carroll in Support of 95 Memorandum in Opposition, to Motion for Preliminary Injunction filed byDavid Maxwell−Jolly, Arnold Schwarzenegger, John A. Wagner. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I)(Related document(s) 95 ) (Carson, Susan) (Filed on 6/15/2009) (Entered: 06/15/2009)
98 Declaration of Toby Douglas in Support of 95 Memorandum in Opposition, to Motion for Preliminary Injunction filed byDavid Maxwell−Jolly, Arnold Schwarzenegger, John A. Wagner. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Related document(s) 95 ) (Carson, Susan) (Filed on 6/15/2009) (Entered: 06/15/2009)
99 OBJECTIONS to Evidence Filed by Plaintiffs in Support of Motion for Preliminary Injunction by David Maxwell−Jolly, Arnold Schwarzenegger, John A. Wagner. (Attachments: # 1 Proposed Order [Proposed] Order Denying Motion for Preliminary Injunction)(Carson, Susan) (Filed on 6/15/2009) (Entered: 06/15/2009)
100 MOTION to Dismiss Plaintiffs' Class Action Complaint Pursuant to FRCP Rule 12(b)(1) & (6) filed by Fresno County, Fresno County In−Home Supportive Services Public Authority. Motion Hearing set for 8/6/2009 02:00 PM in Courtroom 2, 4th Floor, Oakland. (Woods, Michael) (Filed on 6/16/2009) (Entered: 06/16/2009)
101 Memorandum in Support re 100 MOTION to Dismiss Plaintiffs' Class Action Complaint Pursuant to FRCP Rule 12(b)(1) & (6) filed by Fresno County, Fresno County In−Home Supportive Services Public Authority. (Related document(s) 100 ) (Woods, Michael) (Filed on 6/16/2009) Modified on 6/17/2009 (kc, COURT STAFF). (Entered: 06/16/2009)
102 Declaration in Support of 100 MOTION to Dismiss Plaintiffs' Class Action Complaint Pursuant to FRCP Rule 12(b)(1) & (6) filed by Fresno County, Fresno County In−Home Supportive Services Public Authority. (Related document(s) 100 ) (Woods, Michael) (Filed on 6/16/2009) Modified on 6/17/2009 (kc, COURT STAFF). (Entered: 06/16/2009)
103 Request for Judicial Notice re 100 MOTION to Dismiss Plaintiffs' Class Action Complaint Pursuant to FRCP Rule 12(b)(1) & (6) filed by Fresno County, Fresno County In−Home Supportive Services Public Authority. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(Related document(s) 100 ) (Woods, Michael) (Filed on 6/16/2009) Modified on 6/17/2009 (kc, COURT STAFF). (Entered: 06/16/2009)
104 Proposed Order re 100 MOTION to Dismiss Plaintiffs' Class Action Complaint Pursuant to FRCP Rule 12(b)(1) & (6) by Fresno County, Fresno County In−Home Supportive Services Public Authority. (Woods, Michael) (Filed on 6/16/2009) Modified on 6/17/2009 (kc, COURT STAFF). (Entered: 06/16/2009)
105 ERRATA re 92 Declaration in Support, of Opposition to Motion for Preliminary Injunction, by Fresno County, Fresno County In−Home Supportive Services Public Authority. (Woods, Michael) (Filed on 6/17/2009) (Entered: 06/17/2009)
106 MOTION to Sever [FRCP, Rule 21] filed by Fresno County, Fresno County In−Home Supportive Services Public Authority. Motion Hearing set for 8/6/2009 02:00 PM in Courtroom 2, 4th Floor, Oakland. (Attachments: # 1 Memorandum of Points and Authorities)(Woods, Michael) (Filed on 6/18/2009) (Entered: 06/18/2009)
107 Declaration of Kevin Briggs in Support of 106 MOTION to Sever [FRCP, Rule 21] MOTION to Sever [FRCP, Rule 21] filed byFresno County, Fresno County In−Home Supportive Services Public Authority. (Related document(s) 106 ) (Woods, Michael) (Filed on 6/18/2009) (Entered: 06/18/2009)
108 Request for Judicial Notice re 106 MOTION to Sever [FRCP, Rule 21] MOTION to Sever [FRCP, Rule 21] filed byFresno County, Fresno County In−Home Supportive

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Services Public Authority. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6)(Related document(s) 106 ) (Woods, Michael) (Filed on 6/18/2009) (Entered: 06/18/2009)
109 Proposed Order re 106 MOTION to Sever [FRCP, Rule 21] MOTION to Sever [FRCP, Rule 21] by Fresno County, Fresno County In−Home Supportive Services Public Authority. (Woods, Michael) (Filed on 6/18/2009) (Entered: 06/18/2009)
110 Reply Memorandum re 5 MOTION for Preliminary Injunction filed byCharlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Mikesha Martinez, Herbert M. Meyer, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Leyton, Stacey) (Filed on 6/19/2009) (Entered: 06/19/2009)
111 Declaration in Support of 110 Reply Memorandum,, Curtis Austin filed byCharlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Mikesha Martinez, Herbert M. Meyer, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Related document(s) 110 ) (Leyton, Stacey) (Filed on 6/19/2009) (Entered: 06/19/2009)
112 Declaration of Bonnie Burns in Support of 110 Reply Memorandum,, filed byCharlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Mikesha Martinez, Herbert M. Meyer, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Related document(s) 110 ) (Leyton, Stacey) (Filed on 6/19/2009) (Entered: 06/19/2009)
113 Declaration of Dr. Candace Howes in Support of 110 Reply Memorandum,, Supplemental filed byCharlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Mikesha Martinez, Herbert M. Meyer, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Related document(s) 110 ) (Leyton, Stacey) (Filed on 6/19/2009) (Entered: 06/19/2009)
114 Declaration of Dionne Jimenez in Support of 110 Reply Memorandum,, Supplemental filed byCharlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Mikesha Martinez, Herbert M. Meyer, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Attachments: # 1 Exhibit A1, # 2 Exhibit A2, # 3 Exhibit A3, # 4 Exhibit B1, # 5 Exhibit B2, # 6 Exhibit C, # 7 Exhibit D, # 8 Exhibit E1, # 9 Exhibit E2, # 10 Exhibit F1, # 11 Exhibit F2)(Related document(s) 110 ) (Leyton, Stacey) (Filed on 6/19/2009) (Entered: 06/19/2009)
115 Declaration of Rebecca Malberg in Support of 110 Reply Memorandum,, filed byCharlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Mikesha Martinez, Herbert M. Meyer, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Attachments: # 1 Exhibit A)(Related document(s) 110 ) (Leyton, Stacey) (Filed on 6/19/2009) (Entered: 06/19/2009)
116 Declaration of Carlos Martinez in Support of 110 Reply Memorandum,, Supplemental filed byCharlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Mikesha Martinez, Herbert M. Meyer, Service Employees International Union California State Council, Service Employees

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International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Related document(s) 110 ) (Leyton, Stacey) (Filed on 6/19/2009) (Entered: 06/19/2009)
117 Declaration of Anthony Mesaris in Support of 110 Reply Memorandum,, filed byCharlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Mikesha Martinez, Herbert M. Meyer, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers. (Attachments: # 1 Exhibit A)(Related document(s) 110 ) (Leyton, Stacey) (Filed on 6/19/2009) (Entered: 06/19/2009)
118 Declaration of Carmen Rivera−Hendrickson in Support of 110 Reply Memorandum,, filed byCharlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Mikesha Martinez, Herbert M. Meyer, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Related document(s) 110 ) (Leyton, Stacey) (Filed on 6/19/2009) (Entered: 06/19/2009)
119 Declaration of Lauren Rolfe in Support of 110 Reply Memorandum,, filed byCharlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Mikesha Martinez, Herbert M. Meyer, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Related document(s) 110 ) (Leyton, Stacey) (Filed on 6/19/2009) (Entered: 06/19/2009)
120 Declaration of Richard Soohoo in Support of 110 Reply Memorandum,, filed byCharlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Mikesha Martinez, Herbert M. Meyer, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Related document(s) 110 ) (Leyton, Stacey) (Filed on 6/19/2009) (Entered: 06/19/2009)
121 Declaration of Pamela Tiedt in Support of 110 Reply Memorandum,, Supplemental filed byCharlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Mikesha Martinez, Herbert M. Meyer, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Related document(s) 110 ) (Leyton, Stacey) (Filed on 6/19/2009) (Entered: 06/19/2009)
122 OBJECTIONS to State Defendants' Evidence in Support of Opposition to Motion for Preliminary Injunction by Charlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Mikesha Martinez, Herbert M. Meyer, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Leyton, Stacey) (Filed on 6/19/2009) Modified on 6/22/2009 (cp, COURT STAFF). (Entered: 06/19/2009)
123 OBJECTIONS to County Defendants' Evidence in Support of Opposition to Motion for Preliminary Injunction by Charlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Mikesha Martinez, Herbert M. Meyer, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Leyton, Stacey) (Filed on

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06/19/2009
06/19/2009
06/22/2009
06/24/2009 06/25/2009 06/25/2009 06/26/2009 06/26/2009 06/26/2009 06/29/2009
06/29/2009

6/19/2009) Modified on 6/22/2009 (cp, COURT STAFF). (Entered: 06/19/2009)
124 Response to Objections of Fresno Defendants to Evidence in Support of Plaintiff's Motion for Preliminary Injunction filed byCharlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Mikesha Martinez, Herbert M. Meyer, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Leyton, Stacey) (Filed on 6/19/2009) Modified on 6/22/2009 (cp, COURT STAFF). (Entered: 06/19/2009)
125 Plaintiffs' Response to Objections of the State Defendants to Evidence in Support of Plaintiff's Motion for Preliminary Injunction filed byCharlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Mikesha Martinez, Herbert M. Meyer, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Leyton, Stacey) (Filed on 6/19/2009) Modified on 6/22/2009 (cp, COURT STAFF). (Entered: 06/19/2009)
126 STATEMENT OF RECENT DECISION pursuant to Civil Local Rule 7−3.d filed byCharlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Mikesha Martinez, Herbert M. Meyer, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Attachments: # 1 Exhibit A)(Related document(s) 5 ) (Leyton, Stacey) (Filed on 6/22/2009) (Entered: 06/22/2009)
127 OBJECTIONS TO ADDITIONAL EVIDENCE FILED BY PLAINTIFFS IN SUPPORT OF THEIR REPLY MEMORANDUM RE MOTION FOR PRELIMINARY INJUNCTION by John Chiang, David Maxwell−Jolly, Arnold Schwarzenegger, John A. Wagner. (Carson, Susan) (Filed on 6/24/2009) Modified on 6/25/2009 (cp, COURT STAFF). (Entered: 06/24/2009)
128 CLERKS NOTICE RE CHANGE IN COURTROOM (scc, COURT STAFF) (Filed on 6/25/2009) (Entered: 06/25/2009)
129 Minute Entry: Motion Hearing held on 6/25/2009 before Claudia Wilken (Date Filed: 6/25/2009) re 5 MOTION for Preliminary Injunction. (Court Reporter Diane Skillman.) (scc, COURT STAFF) (Date Filed: 6/25/2009) (Entered: 06/25/2009)
130 PRELIMINARY INJUNCTION. Signed by Judge Claudia Wilken on 6/26/09. (cwlc2, COURT STAFF) (Filed on 6/26/2009) (Entered: 06/26/2009)
131 ORDER by Judge Claudia Wilken granting 5 Motion for Preliminary Injunction (cwlc2, COURT STAFF) (Filed on 6/26/2009) (Entered: 06/26/2009)
132 Letter Brief re 130 Preliminary Injunction Stay Request filed byJohn Chiang, David Maxwell−Jolly, Arnold Schwarzenegger, John A. Wagner. (Related document(s) 130 ) (Carson, Susan) (Filed on 6/26/2009) (Entered: 06/26/2009)
133 EMERGENCY EX PARTE MOTION FOR ENFORCEMENT OF PRELIMINARY INJUNCTION filed by Charlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Mikesha Martinez, Herbert M. Meyer, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Leyton, Stacey) (Filed on 6/29/2009) Modified on 6/30/2009 (cp, COURT STAFF). (Entered: 06/29/2009)
134 Supplemental Declaration of Stacey M. Leyton in Support of 133 EMERGENCY EX PARTE MOTION FOR ENFORCEMENT OF PRELIMINARY INJUNCTION filed byCharlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Mikesha Martinez, Herbert M. Meyer, Service

Case: 4:09-cv-2306 As of: 11/13/2017 04:18 PM PST 29 of 68

06/29/2009
06/29/2009 06/29/2009 06/29/2009 06/29/2009 06/29/2009 06/30/2009 06/30/2009 07/01/2009 07/02/2009
07/06/2009 07/07/2009

Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(Related document(s) 133 ) (Leyton, Stacey) (Filed on 6/29/2009) Modified on 6/30/2009 (cp, COURT STAFF). (Entered: 06/29/2009)
135 Proposed Order re 133 EMERGENCY EX PARTE MOTION FOR ENFORCEMENT OF PRELIMINARY INJUNCTION by Charlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Mikesha Martinez, Herbert M. Meyer, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Leyton, Stacey) (Filed on 6/29/2009) Modified on 6/30/2009 (cp, COURT STAFF). (Entered: 06/29/2009)
136 ORDER by Judge Claudia Wilken denying 133 PLAINTIFFS EMERGENCY EX PARTE MOTION FOR ENFORCEMENT OF PRELIMINARY INJUNCTION (scc, COURT STAFF) (Filed on 6/29/2009) (Entered: 06/29/2009)
137 ORDER re 132 DENYING DEFENDANTS MOTION FOR A STAY. Signed by Judge Claudia Wilken on 6/29/09. (scc, COURT STAFF) (Filed on 6/29/2009) (Entered: 06/29/2009)
138 NOTICE OF APPEAL as to 130 Preliminary Injunction, 131 Order on Motion for Preliminary Injunction by John Chiang, David Maxwell−Jolly, Arnold Schwarzenegger, John A. Wagner. (cp, COURT STAFF) (Filed on 6/29/2009) (Entered: 06/30/2009)
139 USCA Appeal Fees received $ 455 receipt number 44611003808 re 138 Notice of Appeal filed by David Maxwell−Jolly, John Chiang, Arnold Schwarzenegger, John A. Wagner (cp, COURT STAFF) (Filed on 6/29/2009) (Entered: 06/30/2009)
140 RECEIVED: Civil Appeals Docketing Statement forwarded to 9th Circuit US Court of Appeals by John Chiang, David Maxwell−Jolly, Arnold Schwarzenegger, John A. Wagner re 138 Notice of Appeal (cp, COURT STAFF) (Filed on 6/29/2009) (Entered: 06/30/2009)
141 USCA Case Number 09−16359 Ninth Circuit Court of Appeals for 138 Notice of Appeal filed by David Maxwell−Jolly, John Chiang, Arnold Schwarzenegger, John A. Wagner. (kk, COURT STAFF) (Filed on 6/30/2009) (Entered: 06/30/2009)
Copy of Notice of Appeal and Docket sheet mailed to all counsel (cp, COURT STAFF) (Filed on 6/30/2009) (Entered: 06/30/2009)
142 CERTIFICATE OF SERVICE by John Chiang, David Maxwell−Jolly, Arnold Schwarzenegger, John A. Wagner re 140 Civil Appeals Docketing Statement to USCA, 138 Notice of Appeal Corrected Proof of Service (Schwartz, Karin) (Filed on 7/1/2009) (Entered: 07/01/2009)
143 Transcript of Proceedings held on 6−25−09, before Judge Claudia Wilken. Court Reporter/Transcriber Diane E. Skillman, Telephone number 510−451−2930. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Redaction Request due 7/20/2009. Redacted Transcript Deadline set for 7/30/2009. Release of Transcript Restriction set for 9/28/2009. (Skillman, Diane) (Filed on 7/2/2009) (Entered: 07/02/2009)
159 Transcript Designation and Ordering Form for proceedings held on June 25, 2009 before Judge Claudia Wilken, (cp, COURT STAFF) (Filed on 7/6/2009) (Entered: 07/08/2009)
144 MOTION FOR CIVIL CONTEMPT SANCTIONS OR, IN THE ALTERNATIVE, FOR A MORE SPECIFIC PRELIMINARY INJUNCTION; MEMORANDUM OF POINTS

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AND AUTHORITIES IN SUPPORT filed by Charlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Mikesha Martinez, Herbert M. Meyer, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Leyton, Stacey) (Filed on 7/7/2009) Modified on 7/8/2009 (cp, COURT STAFF). (Entered: 07/07/2009)
145 Declaration of Stacey M. Leyton in Support of 144 MOTION FOR CIVIL CONTEMPT SANCTIONS OR, IN THE ALTERNATIVE, FOR A MORE SPECIFIC PRELIMINARY INJUNCTION filed byCharlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Mikesha Martinez, Herbert M. Meyer, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R, # 19 Exhibit S, # 20 Exhibit T)(Related document(s) 144 ) (Leyton, Stacey) (Filed on 7/7/2009) Modified on 7/8/2009 (cp, COURT STAFF). (Entered: 07/07/2009)
146 Supplemental Declaration of REBECCA MALBERG filed byCharlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Mikesha Martinez, Herbert M. Meyer, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Leyton, Stacey) (Filed on 7/7/2009) Modified on 7/8/2009 (cp, COURT STAFF). (Entered: 07/07/2009)
147 Declaration of LISA MANCINI filed byCharlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Mikesha Martinez, Herbert M. Meyer, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Related document(s) 144 ) (Leyton, Stacey) (Filed on 7/7/2009) Modified on 7/8/2009 (cp, COURT STAFF). (Entered: 07/07/2009)
148 Supplemental Declaration of SUSANNAH MCDEVITT filed byCharlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Mikesha Martinez, Herbert M. Meyer, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J)(Related document(s) 144 ) (Leyton, Stacey) (Filed on 7/7/2009) Modified on 7/8/2009 (cp, COURT STAFF). (Entered: 07/07/2009)
149 Supplemental Declaration of HYUN NAM filed byCharlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Mikesha Martinez, Herbert M. Meyer, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Leyton, Stacey) (Filed on 7/7/2009) Modified on 7/8/2009 (cp, COURT STAFF). (Entered: 07/07/2009)
150 Supplemental Declaration of DEBRA ROTH filed byCharlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Mikesha Martinez, Herbert M. Meyer, Service Employees International Union California State Council, Service Employees International Union Local 521, Service

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Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Attachments: # 1 Exhibit A) (Leyton, Stacey) (Filed on 7/7/2009) Modified on 7/8/2009 (cp, COURT STAFF). (Entered: 07/07/2009)
151 Proposed Order re 144 MOTION FOR CIVIL CONTEMPT SANCTIONS by Charlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Mikesha Martinez, Herbert M. Meyer, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Leyton, Stacey) (Filed on 7/7/2009) Modified on 7/8/2009 (cp, COURT STAFF). (Entered: 07/07/2009)
152 Proposed (Alternate) Order re 144 MOTION FOR A MORE SPECIFIC PRELIMINARY INJUNCTION by Charlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Mikesha Martinez, Herbert M. Meyer, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Leyton, Stacey) (Filed on 7/7/2009) Modified on 7/8/2009 (cp, COURT STAFF). (Entered: 07/07/2009)
153 Proposed Order re 144 MOTION FOR A MORE SPECIFIC PRELIMINARY INJUNCTION by Charlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Mikesha Martinez, Herbert M. Meyer, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Leyton, Stacey) (Filed on 7/7/2009) Modified on 7/8/2009 (cp, COURT STAFF). (Entered: 07/07/2009)
154 EX PARTE MOTION TO SHORTEN TIME FOR MOTION FOR CIVIL CONTEMPT SANCTIONS OR, IN THE ALTERNATIVE, FOR A MORE SPECIFIC PRELIMINARY INJUNCTION SO THAT RELIEF CAN BE GRANTED BY JULY 9, 2009, OR AS SOON THEREAFTER AS POSSIBLE filed by Charlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Mikesha Martinez, Herbert M. Meyer, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Leyton, Stacey) (Filed on 7/7/2009) Modified on 7/8/2009 (cp, COURT STAFF). (Entered: 07/07/2009)
155 Declaration of Stacey M. Leyton in Support of 154 EX PARTE MOTION TO SHORTEN TIME FOR MOTION FOR CIVIL CONTEMPT SANCTIONS OR, IN THE ALTERNATIVE, FOR A MORE SPECIFIC PRELIMINARY INJUNCTION SO THAT RELIEF CAN BE GRANTED BY JULY 9, 2009, OR AS SOON THEREAFTER AS POSSIBLE filed byCharlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Mikesha Martinez, Herbert M. Meyer, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Related document(s) 154 ) (Leyton, Stacey) (Filed on 7/7/2009) Modified on 7/8/2009 (cp, COURT STAFF). (Entered: 07/07/2009)
156 Declaration of Anne N. Arkush in Support of 154 EX PARTE MOTION TO SHORTEN TIME FOR MOTION FOR CIVIL CONTEMPT SANCTIONS OR, IN THE ALTERNATIVE, FOR A MORE SPECIFIC PRELIMINARY INJUNCTION SO THAT RELIEF CAN BE GRANTED BY JULY 9, 2009, OR AS SOON THEREAFTER AS POSSIBLE filed byCharlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Mikesha Martinez, Herbert M. Meyer, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care

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07/07/2009 07/08/2009 07/09/2009 07/09/2009 07/09/2009
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07/10/2009

Workers, Willie Beatrice Sheppard. (Related document(s) 154 ) (Leyton, Stacey) (Filed on 7/7/2009) Modified on 7/8/2009 (cp, COURT STAFF). Modified on 7/8/2009 (cp, COURT STAFF). (Entered: 07/07/2009)
157 Proposed Order re 154 EX PARTE MOTION TO SHORTEN TIME FOR MOTION FOR CIVIL CONTEMPT SANCTIONS OR, IN THE ALTERNATIVE, FOR A MORE SPECIFIC PRELIMINARY INJUNCTION SO THAT RELIEF CAN BE GRANTED BY JULY 9, 2009, OR AS SOON THEREAFTER AS POSSIBLE by Charlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Mikesha Martinez, Herbert M. Meyer, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Leyton, Stacey) (Filed on 7/7/2009) Modified on 7/8/2009 (cp, COURT STAFF). (Entered: 07/07/2009)
158 ORDER by Judge Claudia Wilken granting 154 MOTION to Shorten Time PLAINTIFFS EX PARTE MOTION TO SHORTEN TIME FOR MOTION FOR CIVIL CONTEMPT SANCTIONS OR, IN THE ALTERNATIVE, FOR A MORE SPECIFIC PRELIMINARY INJUNCTION SO THAT RELIEF CAN BE GRANTED BY JULY 9, 2009, OR AS SOON THEREAFTER AS POSSIBLE (scc, COURT STAFF) (Filed on 7/7/2009) (Entered: 07/07/2009)
160 Certificate of Record forwarded to USCA re appeal 138 Notice of Appeal : (cp, COURT STAFF) (Filed on 7/8/2009) (Entered: 07/08/2009)
161 MOTION Asking Court to Grant Amicus Status and Leave to File Amicus Brief filed by County of San Mateo. (Attachments: # 1 Proposed Order)(Silberman, David) (Filed on 7/9/2009) (Entered: 07/09/2009)
162 Declaration of David A. Silberman in Support of 161 MOTION Asking Court to Grant Amicus Status and Leave to File Amicus Brief filed byCounty of San Mateo. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Related document(s) 161 ) (Silberman, David) (Filed on 7/9/2009) (Entered: 07/09/2009)
163 Memorandum in Opposition re 144 MOTION FOR CIVIL CONTEMPT SANCTIONS OR, IN THE ALTERNATIVE, FOR A MORE SPECIFIC PRELIMINARY INJUNCTION filed byJohn Chiang, David Maxwell−Jolly, Arnold Schwarzenegger, John A. Wagner. (Attachments: # 1 Affidavit DECLARATION OF SUSAN M. CARSON IN SUPPORT OF OPPOSITION (with Exhibit attached), # 2 Affidavit DECLARATION OF EILEEN CARROLL IN SUPPORT OF OPPOSITION (with Exhibits A−C attached), # 3 Affidavit DECLARATION OF LINDA MACHADO IN SUPPORT OF OPPOSITION)(Carson, Susan) (Filed on 7/9/2009) (Entered: 07/09/2009)
164 RESPONSE re 144 MOTION FOR CIVIL CONTEMPT SANCTIONS OR, IN THE ALTERNATIVE, FOR A MORE SPECIFIC PRELIMINARY INJUNCTION filed byFresno County, Fresno County In−Home Supportive Services Public Authority. (Woods, Michael) (Filed on 7/9/2009) Modified on 7/10/2009 (cp, COURT STAFF). (Entered: 07/09/2009)
165 Reply Memorandum re 144 MOTION FOR CIVIL CONTEMPT SANCTIONS OR, IN THE ALTERNATIVE, FOR A MORE SPECIFIC PRELIMINARY INJUNCTION filed byCharlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Mikesha Martinez, Herbert M. Meyer, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Leyton, Stacey) (Filed on 7/10/2009) (Entered: 07/10/2009)
166 Second Supplemental Declaration of Susannah McDevitt filed byCharlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Mikesha Martinez, Herbert M. Meyer, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice

Case: 4:09-cv-2306 As of: 11/13/2017 04:18 PM PST 33 of 68

07/10/2009 07/13/2009
07/13/2009
07/13/2009 07/13/2009 07/13/2009
07/14/2009 07/14/2009

Sheppard. (Attachments: # 1 Exhibit A, # 2 Exhibit B) (Leyton, Stacey) (Filed on 7/10/2009) Modified on 7/13/2009 (cp, COURT STAFF). (Entered: 07/10/2009)
167 Second Supplemental Declaration of Hyun Nam filed byCharlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Mikesha Martinez, Herbert M. Meyer, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Attachments: # 1 Exhibit A, # 2 Exhibit B) (Leyton, Stacey) (Filed on 7/10/2009) Modified on 7/13/2009 (cp, COURT STAFF). (Entered: 07/10/2009)
168 Ex Parte MOTION for Extension of Time for Fresno defendants' motion to dismiss and sever claims filed by Charlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Mikesha Martinez, Herbert M. Meyer, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. Motion Hearing set for 8/6/2009 02:00 PM in Courtroom 2, 4th Floor, Oakland. (Leyton, Stacey) (Filed on 7/13/2009) Modified on 7/14/2009 (cp, COURT STAFF). (Entered: 07/13/2009)
169 Declaration of Anne Arkush in Support of 168 MOTION for Extension of Time filed byCharlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Mikesha Martinez, Herbert M. Meyer, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Related document(s) 168 ) (Leyton, Stacey) (Filed on 7/13/2009) Modified on 7/14/2009 (cp, COURT STAFF). (Entered: 07/13/2009)
170 Proposed Order re 168 MOTION for Extension of Time by Charlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Mikesha Martinez, Herbert M. Meyer, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Leyton, Stacey) (Filed on 7/13/2009) Modified on 7/14/2009 (cp, COURT STAFF). (Entered: 07/13/2009)
171 AMENDED PRELIMINARY INJUNCTION by Judge Claudia Wilken (cwlc3, COURT STAFF) (Filed on 7/13/2009) Modified on 7/14/2009 (cp, COURT STAFF). (Entered: 07/13/2009)
172 ORDER CLARIFYING INJUNCTION AND DENYING re 144 MOTION FOR CIVIL CONTEMPT SANCTIONS filed by Service Employees International Union California State Council, Andy Martinez, Charlene Ayers, Service Employees International Union United Health Care Workers West, Leslie Gordon, Alex Brown, Mikesha Martinez, Service Employees International Union United Long−Term Care Workers, Lydia Dominguez, Donna Brown, Herbert M. Meyer, Chloe Lipton, Service Employees International Union Local 521, Willie Beatrice Sheppard (cwlc3, COURT STAFF) (Filed on 7/13/2009) Modified on 7/14/2009 (cp, COURT STAFF). (Entered: 07/13/2009)
173 Memorandum in Opposition re 168 MOTION for Extension of Time filed byFresno County, Fresno County In−Home Supportive Services Public Authority. (Woods, Michael) (Filed on 7/14/2009) Modified on 7/15/2009 (cp, COURT STAFF). (Entered: 07/14/2009)
174 Declaration of Michael G. Woods in Support of 173 Memorandum in Opposition to Plaintiffs' Ex Parte Motion to Enlarge Time for Fresno Defendants' Motions to Dismiss and to Sever Claims, filed byFresno County, Fresno County In−Home Supportive Services Public Authority. (Related document(s) 173 ) (Woods, Michael) (Filed on 7/14/2009) (Entered: 07/14/2009)

Case: 4:09-cv-2306 As of: 11/13/2017 04:18 PM PST 34 of 68

07/14/2009 07/14/2009 07/14/2009 07/15/2009 07/15/2009 07/15/2009 07/16/2009
07/16/2009
07/16/2009
07/16/2009
07/16/2009

175 Request for Judicial Notice re 173 Memorandum in Opposition to Plaintiffs' Ex Parte Motion to Enlarge Time for Fresno Defendants' Motions to Dismiss and to Sever Claims, filed byFresno County, Fresno County In−Home Supportive Services Public Authority. (Related document(s) 173 ) (Woods, Michael) (Filed on 7/14/2009) (Entered: 07/14/2009)
176 ORDER by Judge Claudia Wilken granting 161 MOTION Asking Court to Grant Amicus Status and Leave to File Amicus Brief filed by County of San Mateo (scc, COURT STAFF) (Filed on 7/14/2009) (Entered: 07/14/2009)
177 Letter from State Defendants re complying with Amended Preliminary Injunction. (Carson, Susan) (Filed on 7/14/2009) (Entered: 07/14/2009)
178 ORDER of USCA as to 138 Notice of Appeal filed by David Maxwell−Jolly, John Chiang, Arnold Schwarzenegger, John A. Wagner (cp, COURT STAFF) (Filed on 7/15/2009) (Entered: 07/15/2009)
179 ORDER by Judge Claudia Wilken granting 168 Ex Parte MOTION for Extension of Time for Fresno defendants' motion to dismiss and sever claims (scc, COURT STAFF) (Filed on 7/15/2009) (Entered: 07/15/2009)
180 Letter from STATE DEFENDANTS TO JUDGE WILKEN RE COMPLYING WITH AMENDED PRELIMINARY INJUNCTION. (Carson, Susan) (Filed on 7/15/2009) (Entered: 07/15/2009)
181 MOTION FOR CIVIL CONTEMPT SANCTIONS AND FOR A FURTHER MORE SPECIFIC PRELIMINARY INJUNCTION; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT filed by Leslie Gordon, Chloe Lipton, Andy Martinez, Mikesha Martinez, Herbert M. Meyer, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Leyton, Stacey) (Filed on 7/16/2009) Modified on 7/17/2009 (cp, COURT STAFF). (Entered: 07/16/2009)
182 Declaration of Stacey Leyton in Support of 181 MOTION FOR CIVIL CONTEMPT SANCTIONS AND FOR A FURTHER MORE SPECIFIC PRELIMINARY INJUNCTION filed byCharlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Mikesha Martinez, Herbert M. Meyer, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J)(Related document(s) 181 ) (Leyton, Stacey) (Filed on 7/16/2009) Modified on 7/17/2009 (cp, COURT STAFF). (Entered: 07/16/2009)
183 Declaration of Anne N. Arkush filed byCharlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Mikesha Martinez, Herbert M. Meyer, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Leyton, Stacey) (Filed on 7/16/2009) Modified on 7/17/2009 (cp, COURT STAFF). (Entered: 07/16/2009)
184 Declaration of ANTONIA BARAJAS filed byCharlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Mikesha Martinez, Herbert M. Meyer, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Related document(s) 181 ) (Leyton, Stacey) (Filed on 7/16/2009) Modified on 7/17/2009 (cp, COURT STAFF). (Entered: 07/16/2009)
185 Declaration of BENIGNO DELGADO filed byCharlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Mikesha Martinez, Herbert M. Meyer, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees

Case: 4:09-cv-2306 As of: 11/13/2017 04:18 PM PST 35 of 68

07/16/2009 07/16/2009 07/16/2009 07/16/2009 07/16/2009
07/16/2009

International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Related document(s) 181 ) (Leyton, Stacey) (Filed on 7/16/2009) Modified on 7/17/2009 (cp, COURT STAFF). (Entered: 07/16/2009)
186 Declaration of SUSANNAH MCDEVITT filed byCharlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Mikesha Martinez, Herbert M. Meyer, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Related document(s) 181 ) (Leyton, Stacey) (Filed on 7/16/2009) Modified on 7/17/2009 (cp, COURT STAFF). (Entered: 07/16/2009)
187 Declaration of Jimi Williams filed byCharlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Mikesha Martinez, Herbert M. Meyer, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Related document(s) 181 ) (Leyton, Stacey) (Filed on 7/16/2009) Modified on 7/17/2009 (cp, COURT STAFF). (Entered: 07/16/2009)
188 Proposed Order re 181 MOTION FOR CIVIL CONTEMPT SANCTIONS AND FOR A FURTHER MORE SPECIFIC PRELIMINARY INJUNCTION by Charlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Mikesha Martinez, Herbert M. Meyer, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Leyton, Stacey) (Filed on 7/16/2009) Modified on 7/17/2009 (cp, COURT STAFF). (Entered: 07/16/2009)
189 EX PARTE MOTION TO SHORTEN TIME FOR MOTION FOR CIVIL CONTEMPT SANCTIONS AND FOR A FURTHER MORE SPECIFIC PRELIMINARY INJUNCTION SO THAT RELIEF CAN BE GRANTED BY JULY 17, 2009, OR AS SOON THEREAFTER AS POSSIBLE filed by Charlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Mikesha Martinez, Herbert M. Meyer, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Leyton, Stacey) (Filed on 7/16/2009) Modified on 7/17/2009 (cp, COURT STAFF). (Entered: 07/16/2009)
190 Declaration of Stacey Leyton in Support of 189 EX PARTE MOTION TO SHORTEN TIME FOR MOTION FOR CIVIL CONTEMPT SANCTIONS AND FOR A FURTHER MORE SPECIFIC PRELIMINARY INJUNCTION SO THAT RELIEF CAN BE GRANTED BY JULY 17, 2009, OR AS SOON THEREAFTER AS POSSIBLE filed byCharlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Mikesha Martinez, Herbert M. Meyer, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Related document(s) 189 ) (Leyton, Stacey) (Filed on 7/16/2009) Modified on 7/17/2009 (cp, COURT STAFF). (Entered: 07/16/2009)
191 Proposed Order re 189 EX PARTE MOTION TO SHORTEN TIME FOR MOTION FOR CIVIL CONTEMPT SANCTIONS AND FOR A FURTHER MORE SPECIFIC PRELIMINARY INJUNCTION SO THAT RELIEF CAN BE GRANTED BY JULY 17, 2009, OR AS SOON THEREAFTER AS POSSIBLE by Charlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Mikesha Martinez, Herbert M. Meyer, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees

Case: 4:09-cv-2306 As of: 11/13/2017 04:18 PM PST 36 of 68

07/16/2009 07/16/2009 07/20/2009
07/20/2009 07/20/2009 07/20/2009 07/20/2009 07/21/2009 07/21/2009

International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Leyton, Stacey) (Filed on 7/16/2009) Modified on 7/17/2009 (cp, COURT STAFF). (Entered: 07/16/2009)
192 ORDER by Judge Claudia Wilken granting 189 GRANTING PLAINTIFFS EX PARTE MOTION TO SHORTEN TIME FOR PLAINTIFFS MOTION FOR CIVIL CONTEMPT SANCTIONS AND FOR A FURTHER MORE SPECIFIC PRELIMINARY INJUNCTION (scc, COURT STAFF) (Filed on 7/16/2009) (Entered: 07/16/2009)
193 Memorandum in Opposition re 189 EX PARTE APPLICATION TO SHORTEN TIME FOR MOTION FOR CIVIL CONTEMPT SANCTIONS AND A MORE SPECIFIC INJUNCTION filed byJohn Chiang, David Maxwell−Jolly, Arnold Schwarzenegger, John A. Wagner. (Carson, Susan) (Filed on 7/16/2009) Modified on 7/17/2009 (cp, COURT STAFF). (Entered: 07/16/2009)
194 Memorandum in Opposition re 181 MOTION FOR CIVIL CONTEMPT SANCTIONS AND FOR A FURTHER MORE SPECIFIC PRELIMINARY INJUNCTION filed byFresno County, Fresno County In−Home Supportive Services Public Authority. (Attachments: # 1 Declaration of Catherine E. Basham, # 2 Exhibit A to Basham Declaration, # 3 Exhibit B to Basham Declaration, # 4 Exhibit C to Basham Declaration, # 5 Exhibit D to Basham Declaration, # 6 Exhibit E to Basham Declaration, # 7 Exhibit F to Basham Declaration, # 8 Exhibit G to Basham Declaration, # 9 Exhibit C to Leyton Declaration, # 10 Exhibit H to Leyton Declaration)(Woods, Michael) (Filed on 7/20/2009) (Entered: 07/20/2009)
195 STATE DEFENDANTS OPPOSITION TO PLAINTIFFS MOTION FOR CIVIL CONTEMPT SANCTIONS AND A FURTHER MORE SPECIFIC INJUNCTION filed byJohn Chiang, David Maxwell−Jolly, Arnold Schwarzenegger, John A. Wagner. (Carson, Susan) (Filed on 7/20/2009) Modified on 7/21/2009 (cp, COURT STAFF). (Entered: 07/20/2009)
196 DECLARATION OF EILEEN CARROLL IN SUPPORT OF STATE DEFENDANTS OPPOSITION TO PLAINTIFFS MOTION FOR CIVIL CONTEMPT SANCTIONS AND A FURTHER MORE SPECIFIC INJUNCTION filed byJohn Chiang, David Maxwell−Jolly, Arnold Schwarzenegger, John A. Wagner. (Carson, Susan) (Filed on 7/20/2009) Modified on 7/21/2009 (cp, COURT STAFF). (Entered: 07/20/2009)
197 Declaration of Ralph Petty in Support of State Defendants' Opposition to Plaintiffs' Motion for Civil Contempt Sanctions and a Further More Specific Injunction filed byJohn Chiang, David Maxwell−Jolly, Arnold Schwarzenegger, John A. Wagner. (Carson, Susan) (Filed on 7/20/2009) Modified on 7/21/2009 (cp, COURT STAFF). (Entered: 07/20/2009)
198 State Defendants' Amended Opposition to Plaintiffs' Motion for Civil Contempt Sanctions and a Further More Specific Injunction filed byJohn Chiang, David Maxwell−Jolly, Arnold Schwarzenegger, John A. Wagner. (Carson, Susan) (Filed on 7/20/2009) Modified on 7/21/2009 (cp, COURT STAFF). (Entered: 07/20/2009)
199 SUPPLEMENTAL DECLARATION OF EILEEN CARROLL IN SUPPORT OF STATE DEFENDANTS OPPOSITION TO PLAINTIFFS MOTION FOR CIVIL CONTEMPT SANCTIONS AND A FURTHER MORE SPECIFIC INJUNCTION filed byJohn Chiang, David Maxwell−Jolly, Arnold Schwarzenegger, John A. Wagner. (Carson, Susan) (Filed on 7/21/2009) Modified on 7/22/2009 (cp, COURT STAFF). (Entered: 07/21/2009)
200 Reply Memorandum IN SUPPORT OF MOTION FOR CIVIL CONTEMPT SANCTIONS AND FOR A FURTHER MORE SPECIFIC PRELIMINARY INJUNCTION filed byCharlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Mikesha Martinez, Herbert M. Meyer, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Leyton, Stacey) (Filed on 7/21/2009) (Entered: 07/21/2009)

Case: 4:09-cv-2306 As of: 11/13/2017 04:18 PM PST 37 of 68

07/21/2009
07/23/2009 07/24/2009 07/27/2009 07/28/2009 08/05/2009 08/06/2009
08/11/2009 08/11/2009 08/11/2009 08/12/2009 08/13/2009 08/13/2009

201 REPLY Declaration of Stacey Leyton in Support of MOTION FOR CIVIL CONTEMPT SANCTIONS AND FOR A FURTHER MORE SPECIFIC PRELIMINARY INJUNCTION filed byCharlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Mikesha Martinez, Herbert M. Meyer, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Attachments: # 1 Exhibit A)(Related document(s) 200 ) (Leyton, Stacey) (Filed on 7/21/2009) Modified on 7/22/2009 (cp, COURT STAFF). (Entered: 07/21/2009)
202 AMENDED NOTICE OF APPEAL as to 171 Order on Motion for Sanctions, 172 Order,, 130 Preliminary Injunction, 131 Order on Motion for Preliminary Injunction by David Maxwell−Jolly, Arnold Schwarzenegger, John A. Wagner. Appeal Record due by 8/24/2009. (Zwibelman, Michael) (Filed on 7/23/2009) Modified on 7/24/2009 (cp, COURT STAFF). (Entered: 07/23/2009)
203 ORDER FURTHER CLARIFYING INJUNCTION. Signed by Judge Claudia Wilken on 7/24/09. (scc, COURT STAFF) (Filed on 7/24/2009) (Entered: 07/24/2009)
204 Letter from Michael A. Zwibelman re: Rescission Letters to Fresno and Santa Barbara Counties. (Attachments: # 1 Attachment)(Zwibelman, Michael) (Filed on 7/27/2009) (Entered: 07/27/2009)
205 AMENDED NOTICE OF APPEAL as to 171 Order on Motion for Sanctions, 172 Order,, 130 Preliminary Injunction, 203 Order, 131 Order on Motion for Preliminary Injunction by David Maxwell−Jolly, Arnold Schwarzenegger, John A. Wagner (SECOND AMENDED NOTICE). Filing fee $ 455. Appeal Record due by 8/27/2009. (Zwibelman, Michael) (Filed on 7/28/2009) (Entered: 07/28/2009)
206 Declaration of Eileen Carroll Re State Defendants' Compliance with Court Order, Dated July 24, 2009 filed byJohn Chiang, David Maxwell−Jolly, Arnold Schwarzenegger, John A. Wagner. (Carson, Susan) (Filed on 8/5/2009) (Entered: 08/05/2009)
207 PLAINTIFFS OPPOSITION TO FRESNO DEFENDANTS MOTIONS TO DISMISS PLAINTIFFS CLASS ACTION COMPLAINT PURSUANT TO FRCP 12(b)(1), (6) AND TO SEVER CLAIMS filed byCharlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Mikesha Martinez, Herbert M. Meyer, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Leyton, Stacey) (Filed on 8/6/2009) Modified on 8/7/2009 (cp, COURT STAFF). (Entered: 08/06/2009)
208 ADR Certification (ADR L.R. 3−5 b) of discussion of ADR options /ADR Certification by Parties and Counsel (Carson, Susan) (Filed on 8/11/2009) (Entered: 08/11/2009)
209 ADR Certification (ADR L.R. 3−5 b) of discussion of ADR options (Leyton, Stacey) (Filed on 8/11/2009) (Entered: 08/11/2009)
210 NOTICE of need for ADR Phone Conference (ADR L.R. 3−5 d) (Leyton, Stacey) (Filed on 8/11/2009) (Entered: 08/11/2009)
211 STIPULATION to Continue Hearing Date for Defendants County of Fresno Motion to Dismiss and Motion to Sever Claims and [Proposed] Order Thereon by Fresno County, Fresno County In−Home Supportive Services Public Authority. (Woods, Michael) (Filed on 8/12/2009) (Entered: 08/12/2009)
212 ANSWER to Complaint by John Chiang, David Maxwell−Jolly, Arnold Schwarzenegger, John A. Wagner. (Carson, Susan) (Filed on 8/13/2009) Modified on 8/14/2009 (jlm, COURT STAFF). (Entered: 08/13/2009)
213 Reply to Opposition re 106 Motion to Sever Pursuant to FRCP Rule 21, Motion to Sever Pursuant to FRCP Rule 21, 100 Motion to Dismiss Plaintiffs' Class Action Complaint Pursuant to FRCP Rule 12(b)(1) & (6), Motion to Dismiss Plaintiffs' Class Action Complaint Pursuant to FRCP Rule 12(b)(1) & (6) filed by Fresno County,

Case: 4:09-cv-2306 As of: 11/13/2017 04:18 PM PST 38 of 68

08/14/2009
08/14/2009
08/18/2009 08/18/2009 09/03/2009 09/08/2009 09/09/2009 09/09/2009 09/17/2009
09/29/2009

Fresno County In−Home Supportive Services Public Authority. (Woods, Michael) (Filed on 8/13/2009) Modified on 8/14/2009 (jlm, COURT STAFF). (Entered: 08/13/2009)
214 STIPULATION to Continue Initial Case Management Conference; [Proposed] Order Thereon by Charlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Mikesha Martinez, Herbert M. Meyer, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Leyton, Stacey) (Filed on 8/14/2009) (Entered: 08/14/2009)
215 Declaration of Anne Arkush in Support of 214 Stipulation,, filed byCharlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Mikesha Martinez, Herbert M. Meyer, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Related document(s) 214 ) (Leyton, Stacey) (Filed on 8/14/2009) (Entered: 08/14/2009)
216 ORDER re 211 GRANTING AS MODIFIED STIPULATION to Continue Hearing Date for Defendants County of Fresno Motion to Dismiss and Motion to Sever Claims. Motion Hearing set for 9/17/2009 02:00 PM.. Signed by Judge CLAUDIA WILKEN on 8/18/09. (scc, COURT STAFF) (Filed on 8/18/2009) (Entered: 08/18/2009)
217 ORDER re 214 granting STIPULATION to Continue Initial Case Management Conference. Initial Case Management Conference set for 9/15/2009 02:00 PM.. Signed by Judge Claudia Wilken on 8/18/09. (scc, COURT STAFF) (Filed on 8/18/2009) (Entered: 08/18/2009)
218 Reply to Opposition re 106 MOTION to Sever, 100 MOTION to Dismiss filed byFresno County, Fresno County In−Home Supportive Services Public Authority. (Woods, Michael) (Filed on 9/3/2009) Modified on 9/4/2009 (cp, COURT STAFF). (Entered: 09/03/2009)
219 STIPULATION to Continue Initial Case Management Conference; [Proposed] Order Thereon by John Chiang, David Maxwell−Jolly, Arnold Schwarzenegger, John A. Wagner. (Carson, Susan) (Filed on 9/8/2009) (Entered: 09/08/2009)
220 ORDER re 219 granting STIPULATION to Continue Initial Case Management Conference. Initial Case Management Conference set for 10/6/2009 02:00 PM.. Signed by Judge Claudia Wilken on 9/9/09. (scc, COURT STAFF) (Filed on 9/9/2009) (Entered: 09/09/2009)
221 ORDER by Judge CLAUDIA WILKEN denying 181 PLAINTIFFS MOTION FOR CIVIL CONTEMPT SANCTIONS AND ATTORNEYS FEES (scc, COURT STAFF) (Filed on 9/9/2009) (Entered: 09/09/2009)
222 Minute Entry: Motion Hearing held on 9/17/2009 before Claudia Wilken (Date Filed: 9/17/2009) re 106 MOTION to Sever [FRCP, Rule 21] MOTION to Sever [FRCP, Rule 21] filed by Fresno County, Fresno County In−Home Supportive Services Public Authority, 100 MOTION to Dismiss Plaintiffs' Class Action Complaint Pursuant to FRCP Rule 12(b)(1) & (6) MOTION to Dismiss Plaintiffs' Class Action Complaint Pursuant to FRCP Rule 12(b)(1) & (6) filed by Fresno County, Fresno County In−Home Supportive Services Public Authority. (Court Reporter David Disbrow) (ls, COURT STAFF) (Date Filed: 9/17/2009) (Entered: 09/18/2009)
223 CASE MANAGEMENT STATEMENT JOINT filed by Charlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Mikesha Martinez, Herbert M. Meyer, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Leyton, Stacey) (Filed on 9/29/2009) (Entered: 09/29/2009)

Case: 4:09-cv-2306 As of: 11/13/2017 04:18 PM PST 39 of 68

10/01/2009 10/01/2009
10/01/2009
10/02/2009 10/05/2009 10/05/2009 10/06/2009
10/06/2009 10/07/2009 10/09/2009

224 MOTION to Relate Case to V.L v. Wagner, Case No. C 09−04668 JCS filed by Charlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Mikesha Martinez, Herbert M. Meyer, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Leyton, Stacey) (Filed on 10/1/2009) (Entered: 10/01/2009)
225 Declaration of Stacey Leyton in Support of 224 MOTION to Relate Case to V.L v. Wagner, Case No. C 09−04668 JCS filed byCharlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Mikesha Martinez, Herbert M. Meyer, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Attachments: # 1 Exhibit A)(Related document(s) 224 ) (Leyton, Stacey) (Filed on 10/1/2009) (Entered: 10/01/2009)
226 Proposed Order re 224 MOTION to Relate Case to V.L v. Wagner, Case No. C 09−04668 JCS by Charlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Mikesha Martinez, Herbert M. Meyer, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Leyton, Stacey) (Filed on 10/1/2009) (Entered: 10/01/2009)
227 Memorandum in Opposition to Administrative Motion to Consider Whether Case Should Be Related to V.L. v. Wagner, Case No. C 09−04668 JCS filed byJohn Chiang, David Maxwell−Jolly, Arnold Schwarzenegger, John A. Wagner. (Attachments: # 1 Proposed Order)(Brown, Gregory) (Filed on 10/2/2009) (Entered: 10/02/2009)
228 Memorandum in Opposition re 224 MOTION to Relate Case to V.L v. Wagner, Case No. C 09−04668 JCS filed byFresno County, Fresno County In−Home Supportive Services Public Authority. (Woods, Michael) (Filed on 10/5/2009) (Entered: 10/05/2009)
229 Proposed Order Denying re 224 Motion to Relate Case by Fresno County, Fresno County In−Home Supportive Services Public Authority. (Woods, Michael) (Filed on 10/5/2009) Modified on 10/6/2009 (cp, COURT STAFF). (Entered: 10/05/2009)
230 REPLY in Support re 224 MOTION to Relate Case to V.L v. Wagner, Case No. C 09−04668 JCS filed byCharlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Mikesha Martinez, Herbert M. Meyer, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Attachments: # 1 Exhibit A)(Leyton, Stacey) (Filed on 10/6/2009) Modified on 10/7/2009 (cp, COURT STAFF). (Entered: 10/06/2009)
231 ORDER RELATING CASE with member case C−09−4668−CW.. Signed by Judge Claudia Wilken on 10/6/2009. (cp, COURT STAFF) (Filed on 10/6/2009) (Entered: 10/06/2009)
232 MINUTE ORDER AND CASE MANAGEMENT ORDER: Bench Trial set for 3/21/2011 08:30 AM. Further Case Management Conference set for 12/23/2010 02:00 PM. Motion Hearing set for 12/23/2010 02:00 PM. Pretrial Conference set for 3/8/2011 02:00 PM. Class Certification Motion Hearing set for 12/17/2009 02:00 PM.. Signed by Judge Claudia Wilken on 10/7/09. (scc, COURT STAFF) (Filed on 10/7/2009) (Entered: 10/07/2009)
233 DISREGARD, ENTERED INTO THIS CASE IN ERROR FURTHER ORDER ON BRIEFING SCHEDULE (cwlc3, COURT STAFF) (Filed on 10/9/2009) Modified on 10/13/2009 (kc, COURT STAFF). (Entered: 10/09/2009)

Case: 4:09-cv-2306 As of: 11/13/2017 04:18 PM PST 40 of 68

10/12/2009
10/15/2009 10/20/2009 11/12/2009
11/12/2009
11/13/2009 11/17/2009 11/18/2009 11/23/2009

234 Transcript of Proceedings held on 10/6/09, before Judge Claudia Wilken. Court Reporter/Transcriber Starr A. Wilson, Telephone number (415) 239−8398. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Redaction Request due 10/30/2009. Redacted Transcript Deadline set for 11/9/2009. Release of Transcript Restriction set for 1/7/2010. (Wilson, Starr) (Filed on 10/12/2009) (Entered: 10/12/2009)
235 ORDER by Judge Claudia Wilken denying 100 Motion to Dismiss; denying 106 Motion to Sever (cwlc3, COURT STAFF) (Filed on 10/15/2009) (Entered: 10/15/2009)
236 MOTION for Leave to File First Amended Complaint filed by Service Employees International Union California State Council. Motion Hearing set for 12/3/2009 02:00 PM in Courtroom 2, 4th Floor, Oakland. (Attachments: # 1 Exhibit Exhibit A − First Amended Complaint, # 2 Proposed Order Proposed Order Granting Plaintiffs' Motion for Leave to File First Amended Complaint)(Leyton, Stacey) (Filed on 10/20/2009) (Entered: 10/20/2009)
237 STIPULATION and [PROPOSED] ORDER TO AMEND SCHEDULE FOR FILING OF PLAINTIFFS' MOTION FOR CLASS CERTIFICATION by Charlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Mikesha Martinez, Herbert M. Meyer, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Attachments: # 1 Signature Page (Declarations/Stipulations) Carson Signature, # 2 Signature Page (Declarations/Stipulations) Jeffcoach Signature)(Berzon, Stephen) (Filed on 11/12/2009) (Entered: 11/12/2009)
238 Declaration of EMILY B. WHITE in Support of 237 Stipulation,, TO AMEND SCHEDULE FOR FILING OF PLAINTIFFS' MOTION FOR CLASS CERTIFICATION filed byCharlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Andy Martinez, Mikesha Martinez, Herbert M. Meyer, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Related document(s) 237 ) (Berzon, Stephen) (Filed on 11/12/2009) (Entered: 11/12/2009)
239 Statement of Non−Opposition re 236 MOTION for Leave to File First Amended Complaint filed byFresno County, Fresno County In−Home Supportive Services Public Authority. (Related document(s) 236 ) (Woods, Michael) (Filed on 11/13/2009) (Entered: 11/13/2009)
240 REPLY in support of unopposed MOTION for Leave to File First Amended Complaint filed by Charlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Mikesha Martinez, Herbert M. Meyer, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (White, Emily) (Filed on 11/17/2009) Modified on 11/18/2009 (cp, COURT STAFF). (Entered: 11/17/2009)
241 ORDER re 237 GRANTING AS MODIFIED STIPULATION TO AMEND SCHEDULE FOR FILING OF PLAINTIFFS' MOTION FOR CLASS CERTIFICATION. Signed by Judge CLAUDIA WILKEN on 11/18/09. (scc, COURT STAFF) (Filed on 11/18/2009) (Entered: 11/18/2009)
242 ORDER by Judge Claudia Wilken granting 236 Motion for Leave to File First Amended Complaint (cwlc3, COURT STAFF) (Filed on 11/23/2009) (Entered: 11/23/2009)

Case: 4:09-cv-2306 As of: 11/13/2017 04:18 PM PST 41 of 68

11/24/2009
11/30/2009 01/04/2010
01/08/2010 01/11/2010 01/22/2010 01/28/2010 01/28/2010 01/28/2010

243 AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF against John Chiang, Fresno County, Fresno County In−Home Supportive Services Public Authority, David Maxwell−Jolly, Arnold Schwarzenegger, John A. Wagner. Filed byLeslie Gordon, Lydia Dominguez, Service Employees International Union Local 521, Herbert M. Meyer, Mikesha Martinez, Alex Brown, Willie Beatrice Sheppard, Service Employees International Union California State Council, Andy Martinez, Chloe Lipton, Charlene Ayers, Service Employees International Union United Health Care Workers West, Donna Brown, Service Employees International Union United Long−Term Care Workers. (Leyton, Stacey) (Filed on 11/24/2009) (Entered: 11/24/2009)
244 ANSWER to Amended Complaint byFresno County, Fresno County In−Home Supportive Services Public Authority. (Woods, Michael) (Filed on 11/30/2009) (Entered: 11/30/2009)
245 MOTION to Certify Class ; Memorandum of Points and Authorities in Support filed by Charlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Mikesha Martinez, Herbert M. Meyer, Patsy Miller, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard, Sia Chue Yang. (Attachments: # 1 Proposed Order Proposed Order Granting Plaintiff's Motion for Class Certification, # 2 Declaration of Emily White ISO Motion for Class Certification, # 3 Exhibit Exhibit A to Emily White's Declaration, # 4 Exhibit Exhibit B to Emily White's Declaration, # 5 Exhibit Exhibit C to Emily White's Declaration, # 6 Exhibit Exhibit D to Emily White's Declaration, # 7 Declaration of Carol Bolubock, # 8 Declaration of Susannah McDevitt, # 9 Declaration of Hyun Nam, # 10 Declaration of Debra Roth, # 11 Declaration of Sia Chue Yang, # 12 Translator Certification of Sakong Cha, # 13 Declaration of Patsy Miller, # 14 Declaration of Lydia Dominguez, # 15 Declaration of Lisa Brown, # 16 Declaration of Donna Brown, # 17 Declaration of Julie Weissman−Steinbaugh, # 18 Declaration of Herbert Meyer, # 19 Declaration of Leslie Gordon, # 20 Declaration of Charlene Ayers, # 21 Declaration of Willie Beatrice Sheppard, # 22 Declaration of Andy Martinez)(White, Emily) (Filed on 1/4/2010) Modified on 1/29/2010 (cp, COURT STAFF). (Entered: 01/04/2010)
246 CLERKS NOTICE TAKING MOTION UNDER SUBMISSION. (scc, COURT STAFF) (Filed on 1/8/2010) (Entered: 01/08/2010)
247 SUGGESTION OF DEATH Upon the Record as to Sia Chue Yang by Leslie Gordon, Patsy Miller, Lydia Dominguez, Service Employees International Union Local 521, Herbert M. Meyer, Mikesha Martinez, Alex Brown, Willie Beatrice Sheppard, Service Employees International Union California State Council, Andy Martinez, Chloe Lipton, Charlene Ayers, Service Employees International Union United Health Care Workers West, Donna Brown, Service Employees International Union United Long−Term Care Workers. (Arkush, Anne) (Filed on 1/11/2010) (Entered: 01/11/2010)
248 AMENDED ORDER of USCA as to 138 Notice of Appeal filed by David Maxwell−Jolly, John Chiang, Arnold Schwarzenegger, John A. Wagner (cp, COURT STAFF) (Filed on 1/22/2010) (Entered: 01/22/2010)
249 Memorandum in Opposition re 245 MOTION to Certify Class filed byFresno County, Fresno County In−Home Supportive Services Public Authority. (Buchanan, Timothy) (Filed on 1/28/2010) Modified on 1/29/2010 (cp, COURT STAFF). (Entered: 01/28/2010)
250 Request for Judicial Notice re 249 Memorandum in Opposition filed byFresno County, Fresno County In−Home Supportive Services Public Authority. (Related document(s) 249 ) (Buchanan, Timothy) (Filed on 1/28/2010) Modified on 1/29/2010 (cp, COURT STAFF). (Entered: 01/28/2010)
251 OBJECTIONS and Motion to strike certain declarations in support of re 245 motion for class certification by Fresno County, Fresno County In−Home Supportive Services Public Authority. (Buchanan, Timothy) (Filed on 1/28/2010) Modified on 1/29/2010 (cp, COURT STAFF). Modified on 1/29/2010 (cp, COURT STAFF). (Entered: 01/28/2010)

Case: 4:09-cv-2306 As of: 11/13/2017 04:18 PM PST 42 of 68

01/28/2010 01/29/2010 02/02/2010 02/11/2010 02/11/2010 02/11/2010
02/11/2010 02/11/2010
02/11/2010

252 OPPOSITION TO PLAINTIFFS' MOTION FOR CLASS CERTIFICATION filed byJohn Chiang, David Maxwell−Jolly, Arnold Schwarzenegger, John A. Wagner. (Attachments: # 1 Decl. of Eileen Carroll in Support of State Defendants' Opposition to Plaintiffs' Motion for Class Certification w/ Exhibits A−D)(Carson, Susan) (Filed on 1/28/2010) Modified on 1/29/2010 (cp, COURT STAFF). (Entered: 01/28/2010)
253 MOTION to Relate Case CV 10−0344 filed by California Association of Public Authorities, et al.. (Attachments: # 1 Affidavit, # 2 Proposed Order)(Sherman, Greg) (Filed on 1/29/2010) (Entered: 01/29/2010)
254 ORDER RELATING CASE with member case C−10−344−CW.. Signed by Judge Claudia Wilken on 2/2/2010. (cp, COURT STAFF) (Filed on 2/2/2010) (Entered: 02/03/2010)
255 Reply Memorandum In Support of Motion For Class Certification filed byCharlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Mikesha Martinez, Herbert M. Meyer, Patsy Miller, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard, Sia Chue Yang. (White, Emily) (Filed on 2/11/2010) (Entered: 02/11/2010)
256 Declaration of Susannah McDevitt In Support of Plaintiff's Motion For Class Certification filed byCharlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Mikesha Martinez, Herbert M. Meyer, Patsy Miller, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard, Sia Chue Yang. (White, Emily) (Filed on 2/11/2010) (Entered: 02/11/2010)
257 Request for Judicial Notice In Support of Plaintiff's Motion For Class Certification filed byCharlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Mikesha Martinez, Herbert M. Meyer, Patsy Miller, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard, Sia Chue Yang. (Attachments: # 1 Exhibit Exhibit A (RFJN))(White, Emily) (Filed on 2/11/2010) (Entered: 02/11/2010)
258 OBJECTIONS to State Defendant's Evidence In Support of State's Opposition To Motion For Class Certification by Charlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Mikesha Martinez, Herbert M. Meyer, Patsy Miller, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard, Sia Chue Yang. (White, Emily) (Filed on 2/11/2010) (Entered: 02/11/2010)
259 *** FILED IN ERROR. REFER TO DOCUMENT 261 . *** OBJECTIONS to Fresno Defendant's Evidence In Support of Fresno Defendants' Opposition To Motion For Class Certification by Charlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Mikesha Martinez, Herbert M. Meyer, Patsy Miller, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard, Sia Chue Yang. (White, Emily) (Filed on 2/11/2010) Modified on 2/12/2010 (cp, COURT STAFF). Modified on 2/12/2010 (feriab, COURT STAFF). (Entered: 02/11/2010)
260 RESPONSE to Fresno Defendants' Motion to Strike and Objections to Evidence Filed In Support of Plaintiffs' Motion For Class Certification by Charlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Mikesha Martinez, Herbert M. Meyer, Patsy Miller, Service Employees International Union California State Council, Service Employees International Union

Case: 4:09-cv-2306 As of: 11/13/2017 04:18 PM PST 43 of 68

02/11/2010
03/03/2010 03/03/2010
03/04/2010
03/08/2010 03/19/2010 03/25/2010 03/29/2010 04/02/2010

Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard, Sia Chue Yang. (White, Emily) (Filed on 2/11/2010) (Entered: 02/11/2010)
261 OBJECTIONS to Fresno Defendants' Evidence In Support of Fresno Defendants' Opposition to Motion For Class Certification CORRECTION OF DOCKET # 259 by Charlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Mikesha Martinez, Herbert M. Meyer, Patsy Miller, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard, Sia Chue Yang. (White, Emily) (Filed on 2/11/2010) Modified on 2/12/2010 (cp, COURT STAFF). Modified on 2/12/2010 (feriab, COURT STAFF). (Entered: 02/11/2010)
262 OPINION of USCA as to 138 Notice of Appeal filed by David Maxwell−Jolly, John Chiang, Arnold Schwarzenegger, John A. Wagner, 205 Amended Notice of Appeal, filed by David Maxwell−Jolly, Arnold Schwarzenegger, John A. Wagner, 202 Amended Notice of Appeal, filed by David Maxwell−Jolly, Arnold Schwarzenegger, John A. Wagner (cp, COURT STAFF) (Filed on 3/3/2010) (Entered: 03/03/2010)
263 STIPULATION and (Proposed) Order for Protective Order Relating to Confidential Records Produced by Parties by Charlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Mikesha Martinez, Herbert M. Meyer, Patsy Miller, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard, Sia Chue Yang, John Chiang, David Maxwell−Jolly, Arnold Schwarzenegger, John A. Wagner. (Arkush, Anne) (Filed on 3/3/2010) Modified on 3/4/2010 (cp, COURT STAFF). (Entered: 03/03/2010)
264 Statement Of Recent Decision by Charlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Mikesha Martinez, Herbert M. Meyer, Patsy Miller, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard, Sia Chue Yang. (Attachments: # 1 Exhibit Exhibit 1)(White, Emily) (Filed on 3/4/2010) (Entered: 03/04/2010)
265 STATE DEFENDANTS' ANSWER to Amended Complaint byJohn Chiang, David Maxwell−Jolly, Arnold Schwarzenegger, John A. Wagner. (Carson, Susan) (Filed on 3/8/2010) (Entered: 03/08/2010)
266 ORDER re 263 granting STIPULATION for Protective Order Relating to Confidential Records Produced by Parties. Signed by Judge Claudia Wilken on 03/19/2010. (scc, COURT STAFF) (Filed on 3/19/2010) (Entered: 03/19/2010)
267 MANDATE of USCA; cost is awarded to the appellee in the amount of $316.90 as to 138 Notice of Appeal, 205 Amended Notice of Appeal, 202 Amended Notice of Appeal, filed by David Maxwell−Jolly, Arnold Schwarzenegger, John A. Wagner (cp, COURT STAFF) (Filed on 3/25/2010) (Entered: 03/25/2010)
268 Notice from U.S. Supreme Court of filing of the Petition for Writ of Certiorari assigned Case Number 09−1158 (kk, COURT STAFF) (Filed on 3/29/2010) Modified on 3/30/2010 (cp, COURT STAFF). (Entered: 03/29/2010)
269 MOTION to Compel Production of Documents; Memorandum of Points and Authorities in Support filed by Charlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Mikesha Martinez, Herbert M. Meyer, Patsy Miller, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard, Sia Chue Yang. (Thoreen, Peder) (Filed on 4/2/2010) Modified on 4/5/2010 (cp, COURT

Case: 4:09-cv-2306 As of: 11/13/2017 04:18 PM PST 44 of 68

04/02/2010
04/02/2010
04/05/2010 04/06/2010 04/06/2010 04/06/2010 04/21/2010 04/28/2010
04/28/2010
05/07/2010

STAFF). (Entered: 04/02/2010)
270 Declaration of Peder J. Thoreen in Support of 269 MOTION to Compel Production of Documents filed byCharlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Mikesha Martinez, Herbert M. Meyer, Patsy Miller, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard, Sia Chue Yang. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Related document(s) 269 ) (Thoreen, Peder) (Filed on 4/2/2010) Modified on 4/5/2010 (cp, COURT STAFF). (Entered: 04/02/2010)
271 Proposed Order re 269 MOTION to Compel Production of Documents by Charlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Mikesha Martinez, Herbert M. Meyer, Patsy Miller, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard, Sia Chue Yang. (Thoreen, Peder) (Filed on 4/2/2010) Modified on 4/5/2010 (cp, COURT STAFF). (Entered: 04/02/2010)
272 ORDER REFERRING CASE to Magistrate Judge for Discovery purposes. Signed by Judge Claudia Wilken on 04/05/2010. (scc, COURT STAFF) (Filed on 4/5/2010) (Entered: 04/05/2010)
CASE REFERRED to Magistrate Judge Magistrate Judge James Larson for Discovery (wh, COURT STAFF) (Filed on 4/6/2010) (Entered: 04/06/2010)
273 NOTICE of Appearance by Jennifer A. Bunshoft (Bunshoft, Jennifer) (Filed on 4/6/2010) (Entered: 04/06/2010)
274 CLERKS NOTICE Motion Hearing set for 5/12/2010 09:30 AM in Courtroom F, 15th Floor, San Francisco. (wh, COURT STAFF) (Filed on 4/6/2010) (Entered: 04/06/2010)
275 OPPOSITION TO PLAINTIFFS' MOTION TO COMPEL filed byJohn Chiang, David Maxwell−Jolly, Arnold Schwarzenegger. (Attachments: # 1 DECLARATION OF TOBY DOUGLAS IN SUPPORT OF STATE DEFENDANTS' OPPOSITION TO PLAINTIFFS' MOTION TO COMPEL PRODUCTION OF DOCUMENTS)(Carson, Susan) (Filed on 4/21/2010) Modified on 4/22/2010 (cp, COURT STAFF). (Entered: 04/21/2010)
276 Reply Memorandum re 269 MOTION to Compel Production of Documents filed byCharlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Mikesha Martinez, Herbert M. Meyer, Patsy Miller, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard, Sia Chue Yang. (Thoreen, Peder) (Filed on 4/28/2010) (Entered: 04/28/2010)
277 Declaration of Peder J. Thoreen in Support of 269 MOTION to Compel Production of Documents (Supplemental) filed byCharlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Mikesha Martinez, Herbert M. Meyer, Patsy Miller, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard, Sia Chue Yang. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Related document(s) 269 ) (Thoreen, Peder) (Filed on 4/28/2010) (Entered: 04/28/2010)
278 STIPULATION AND [PROPOSED] ORDER CONTINUING DEADLINES by Charlene Ayers, Alex Brown, Donna Brown, John Chiang, Lydia Dominguez, Fresno County, Fresno County In−Home Supportive Services Public Authority, Leslie Gordon, Chloe Lipton, Andy Martinez, Mikesha Martinez, David Maxwell−Jolly, Herbert M. Meyer, Patsy Miller, Arnold Schwarzenegger, Service Employees

Case: 4:09-cv-2306 As of: 11/13/2017 04:18 PM PST 45 of 68

05/11/2010 05/12/2010 05/12/2010 05/14/2010
05/14/2010 06/01/2010 06/01/2010 06/02/2010 06/02/2010 06/08/2010 06/21/2010
06/21/2010
06/21/2010

International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard, John A. Wagner, Sia Chue Yang. (Leyton, Stacey) (Filed on 5/7/2010) (Entered: 05/07/2010)
279 CLERKS NOTICE submitting motion to compel without hearing. (wh, COURT STAFF) (Filed on 5/11/2010) (Entered: 05/11/2010)
***Deadlines terminated. 234 , 143 Release of Transcript Restrict, Transcript Redaction Request Deadline (cp, COURT STAFF) (Filed on 5/12/2010) (Entered: 05/12/2010)
280 ORDER by Judge James Larson Granting in part and Denying in part 269 Motion to Compel (jlsec, COURT STAFF) (Filed on 5/12/2010) (Entered: 05/12/2010)
281 ORDER re 278 Adopting Stipulation Continuing Deadlines Filed May 7, 2010. Bench Trial (15 day) set for 6/6/2011 08:30 AM. Further Case Management Conference set for 3/3/2011 02:00 PM. Motion Hearing set for 3/3/2011 02:00 PM. Pretrial Conference set for 5/24/2011 02:00 PM. Signed by Judge Claudia Wilken on 5/14/2010. (ndr, COURT STAFF) (Filed on 5/14/2010) (Entered: 05/14/2010)
***Deadlines terminated. 281 Order, Set Hearings, Terminate Hearings,,,. (ndr, COURT STAFF) (Filed on 5/14/2010) (Entered: 05/14/2010)
282 NOTICE OF SUBMISSION OF SOC 449 RATE CHANGE REQUEST PACKET FOR FRESNO COUNTY by Fresno County, Fresno County In−Home Supportive Services Public Authority. (Jeffcoach, Mandy) (Filed on 6/1/2010) Modified on 6/2/2010 (cjl, COURT STAFF). (Entered: 06/01/2010)
283 NOTICE OF ERRATA FOR NOTICE OF SUBMISSION OF SOC 449 RATE CHANGE REQUEST PACKET FOR FRESNO COUNTY by Fresno County, Fresno County In−Home Supportive Services Public Authority. (Jeffcoach, Mandy) (Filed on 6/1/2010) Modified on 6/2/2010 (cjl, COURT STAFF). (Entered: 06/01/2010)
284 NOTICE of Appearance by Caroline Place Cincotta (Cincotta, Caroline) (Filed on 6/2/2010) (Entered: 06/02/2010)
285 Amended NOTICE of Appearance by Caroline Place Cincotta (Cincotta, Caroline) (Filed on 6/2/2010) Modified on 6/3/2010 (vlk, COURT STAFF). (Entered: 06/02/2010)
286 ORDER by Judge Claudia Wilken Granting 245 Plaintiffs' Motion for Class Certification (cwlc3, COURT STAFF) (Filed on 6/8/2010) (Entered: 06/08/2010)
287 Ex Parte MOTION for Temporary Restraining Order filed by Charlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Patsy Miller, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Leyton, Stacey) (Filed on 6/21/2010) (Entered: 06/21/2010)
288 Declaration of Peder Thoreen in Support of 287 Ex Parte MOTION for Temporary Restraining Order filed byCharlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Patsy Miller, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Related document(s) 287 ) (Leyton, Stacey) (Filed on 6/21/2010) (Entered: 06/21/2010)
289 Declaration of Rebecca Malberg in Support of 287 Ex Parte MOTION for Temporary Restraining Order filed byCharlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Patsy Miller, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United

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Long−Term Care Workers, Willie Beatrice Sheppard. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Related document(s) 287 ) (Leyton, Stacey) (Filed on 6/21/2010) (Entered: 06/21/2010)
290 Declaration of Larry Winsten in Support of 287 Ex Parte MOTION for Temporary Restraining Order filed byCharlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Patsy Miller, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Related document(s) 287 ) (Leyton, Stacey) (Filed on 6/21/2010) (Entered: 06/21/2010)
291 Declaration of Jusztina Traum in Support of 287 Ex Parte MOTION for Temporary Restraining Order filed byCharlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Patsy Miller, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Related document(s) 287 ) (Leyton, Stacey) (Filed on 6/21/2010) (Entered: 06/21/2010)
292 Declaration of Nicole Taggares in Support of 287 Ex Parte MOTION for Temporary Restraining Order filed byCharlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Patsy Miller, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Related document(s) 287 ) (Leyton, Stacey) (Filed on 6/21/2010) (Entered: 06/21/2010)
293 Declaration of Galen Ages in Support of 287 Ex Parte MOTION for Temporary Restraining Order filed byCharlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Patsy Miller, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Related document(s) 287 ) (Leyton, Stacey) (Filed on 6/21/2010) (Entered: 06/21/2010)
294 Declaration of Melanie Vang in Support of 287 Ex Parte MOTION for Temporary Restraining Order filed byCharlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Patsy Miller, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Related document(s) 287 ) (Leyton, Stacey) (Filed on 6/21/2010) (Entered: 06/21/2010)
295 EXHIBITS re 288 Declaration in Support,, filed byCharlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Patsy Miller, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Attachments: # 1 Exhibit B)(Related document(s) 288 ) (Leyton, Stacey) (Filed on 6/21/2010) (Entered: 06/21/2010)
296 Request for Judicial Notice re 287 Ex Parte MOTION for Temporary Restraining Order filed byCharlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Patsy Miller, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3

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Exhibit C, # 4 Exhibit D)(Related document(s) 287 ) (Leyton, Stacey) (Filed on 6/21/2010) (Entered: 06/21/2010)
297 Declaration of Candace Howes in Support of 287 Ex Parte MOTION for Temporary Restraining Order filed byCharlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Related document(s) 287 ) (Leyton, Stacey) (Filed on 6/21/2010) (Entered: 06/21/2010)
298 SUPPLEMENTAL Declaration of Lisa Brown in Support of 287 Ex Parte MOTION for Temporary Restraining Order filed byCharlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Patsy Miller, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Related document(s) 287 ) (Leyton, Stacey) (Filed on 6/21/2010) Modified on 6/22/2010 (cp, COURT STAFF). (Entered: 06/21/2010)
299 SUPPLEMENTAL Declaration of Andy Martinez in Support of 287 Ex Parte MOTION for Temporary Restraining Order filed byCharlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Mikesha Martinez, Herbert M. Meyer, Patsy Miller, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Related document(s) 287 ) (Leyton, Stacey) (Filed on 6/21/2010) Modified on 6/22/2010 (cp, COURT STAFF). (Entered: 06/21/2010)
300 SUPPLEMENTAL Declaration of Patsy Miller in Support of 287 Ex Parte MOTION for Temporary Restraining Order filed byCharlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Patsy Miller, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Related document(s) 287 ) (Leyton, Stacey) (Filed on 6/21/2010) Modified on 6/22/2010 (cp, COURT STAFF). (Entered: 06/21/2010)
301 Declaration of Carolyn Stewart in Support of 287 Ex Parte MOTION for Temporary Restraining Order filed byCharlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Patsy Miller, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Related document(s) 287 ) (Leyton, Stacey) (Filed on 6/21/2010) (Entered: 06/21/2010)
302 Declaration of Elida Aguilar in Support of 287 Ex Parte MOTION for Temporary Restraining Order filed byCharlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Patsy Miller, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Related document(s) 287 ) (Leyton, Stacey) (Filed on 6/21/2010) (Entered: 06/21/2010)
303 Declaration of Linda Bailey in Support of 287 Ex Parte MOTION for Temporary Restraining Order filed byCharlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Patsy Miller, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United

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Long−Term Care Workers, Willie Beatrice Sheppard. (Related document(s) 287 ) (Leyton, Stacey) (Filed on 6/21/2010) (Entered: 06/21/2010)
304 Declaration of Sandra Boushele in Support of 287 Ex Parte MOTION for Temporary Restraining Order filed byCharlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Patsy Miller, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Related document(s) 287 ) (Leyton, Stacey) (Filed on 6/21/2010) (Entered: 06/21/2010)
305 Supplemental Declaration of Sandra Boushele on Health Insurance re 287 Ex Parte MOTION for Temporary Restraining Order filed byCharlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Patsy Miller, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Related document(s) 287 ) (Leyton, Stacey) (Filed on 6/21/2010) Modified on 6/22/2010 (cp, COURT STAFF). (Entered: 06/21/2010)
306 Declaration of Candy Buckley in Support of 287 Ex Parte MOTION for Temporary Restraining Order filed byCharlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Patsy Miller, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Related document(s) 287 ) (Leyton, Stacey) (Filed on 6/21/2010) (Entered: 06/21/2010)
307 Declaration of Carolyn Buckley in Support of 287 Ex Parte MOTION for Temporary Restraining Order filed byCharlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Related document(s) 287 ) (Leyton, Stacey) (Filed on 6/21/2010) (Entered: 06/21/2010)
308 Supplemental Declaration of Carolyn Buckley on Health Insurance re 287 Ex Parte MOTION for Temporary Restraining Order filed byCharlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Related document(s) 287 ) (Leyton, Stacey) (Filed on 6/21/2010) Modified on 6/22/2010 (cp, COURT STAFF). (Entered: 06/21/2010)
309 Declaration of Martha Cendejas in Support of 287 Ex Parte MOTION for Temporary Restraining Order filed byCharlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Patsy Miller, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Related document(s) 287 ) (Leyton, Stacey) (Filed on 6/21/2010) (Entered: 06/21/2010)
310 Declaration of Kelleye Everhardt in Support of 287 Ex Parte MOTION for Temporary Restraining Order filed byCharlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Patsy Miller, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Related document(s) 287 )

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(Leyton, Stacey) (Filed on 6/21/2010) (Entered: 06/21/2010)
311 Supplemental Declaration of Kelleye Everhardt on Health Insurance re 287 Ex Parte MOTION for Temporary Restraining Order filed byCharlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Patsy Miller, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Related document(s) 287 ) (Leyton, Stacey) (Filed on 6/21/2010) Modified on 6/22/2010 (cp, COURT STAFF). (Entered: 06/21/2010)
312 Declaration of Maria Garcia in Support of 287 Ex Parte MOTION for Temporary Restraining Order filed byCharlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Patsy Miller, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Related document(s) 287 ) (Leyton, Stacey) (Filed on 6/21/2010) (Entered: 06/21/2010)
313 Declaration of Ruby Garcia in Support of 287 Ex Parte MOTION for Temporary Restraining Order filed byCharlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Patsy Miller, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Related document(s) 287 ) (Leyton, Stacey) (Filed on 6/21/2010) (Entered: 06/21/2010)
314 Declaration of Michael Gilchrist in Support of 287 Ex Parte MOTION for Temporary Restraining Order filed byCharlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Patsy Miller, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Related document(s) 287 ) (Leyton, Stacey) (Filed on 6/21/2010) (Entered: 06/21/2010)
315 Declaration of Charles Hanlon in Support of 287 Ex Parte MOTION for Temporary Restraining Order filed byCharlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Patsy Miller, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Related document(s) 287 ) (Leyton, Stacey) (Filed on 6/21/2010) (Entered: 06/21/2010)
316 Declaration of Christal Hopkins in Support of 287 Ex Parte MOTION for Temporary Restraining Order filed byCharlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Patsy Miller, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Related document(s) 287 ) (Leyton, Stacey) (Filed on 6/21/2010) (Entered: 06/21/2010)
317 Declaration of Octavia Jones in Support of 287 Ex Parte MOTION for Temporary Restraining Order filed byCharlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Patsy Miller, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Related document(s) 287 ) (Leyton, Stacey) (Filed on 6/21/2010) (Entered: 06/21/2010)

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318 Declaration of See Lee in Support of 287 Ex Parte MOTION for Temporary Restraining Order filed byCharlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Patsy Miller, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Related document(s) 287 ) (Leyton, Stacey) (Filed on 6/21/2010) (Entered: 06/21/2010)
319 Declaration of Gus Leon in Support of 287 Ex Parte MOTION for Temporary Restraining Order filed byCharlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Patsy Miller, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Related document(s) 287 ) (Leyton, Stacey) (Filed on 6/21/2010) (Entered: 06/21/2010)
320 Declaration of Ellen Maiden in Support of 287 Ex Parte MOTION for Temporary Restraining Order filed byCharlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Patsy Miller, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Related document(s) 287 ) (Leyton, Stacey) (Filed on 6/21/2010) (Entered: 06/21/2010)
321 Declaration of James Moore in Support of 287 Ex Parte MOTION for Temporary Restraining Order filed byCharlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Patsy Miller, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Related document(s) 287 ) (Leyton, Stacey) (Filed on 6/21/2010) (Entered: 06/21/2010)
322 Declaration of Terry Moreno in Support of 287 Ex Parte MOTION for Temporary Restraining Order filed byCharlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Related document(s) 287 ) (Leyton, Stacey) (Filed on 6/21/2010) (Entered: 06/21/2010)
323 Supplemental Declaration on Health Insurance re 287 Ex Parte MOTION for Temporary Restraining Order filed byCharlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Patsy Miller, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Related document(s) 287 ) (Leyton, Stacey) (Filed on 6/21/2010) Modified on 6/22/2010 (cp, COURT STAFF). (Entered: 06/21/2010)
324 Declaration of Marisol Muniz in Support of 287 Ex Parte MOTION for Temporary Restraining Order filed byCharlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Patsy Miller, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Related document(s) 287 ) (Leyton, Stacey) (Filed on 6/21/2010) (Entered: 06/21/2010)
325 Declaration of Ida Perez in Support of 287 Ex Parte MOTION for Temporary Restraining Order filed byCharlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Patsy

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Miller, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Related document(s) 287 ) (Leyton, Stacey) (Filed on 6/21/2010) (Entered: 06/21/2010)
326 Declaration of Baljinder Singh in Support of 287 Ex Parte MOTION for Temporary Restraining Order filed byCharlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Herbert M. Meyer, Patsy Miller, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Related document(s) 287 ) (Leyton, Stacey) (Filed on 6/21/2010) (Entered: 06/21/2010)
327 Declaration of Panou Thao in Support of 287 Ex Parte MOTION for Temporary Restraining Order filed byCharlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Patsy Miller, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Related document(s) 287 ) (Leyton, Stacey) (Filed on 6/21/2010) (Entered: 06/21/2010)
328 Declaration of Reynaldo Valdez in Support of 287 Ex Parte MOTION for Temporary Restraining Order filed byCharlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Patsy Miller, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Related document(s) 287 ) (Leyton, Stacey) (Filed on 6/21/2010) (Entered: 06/21/2010)
329 Declaration of Yer Vang in Support of 287 Ex Parte MOTION for Temporary Restraining Order filed byCharlene Ayers, Alex Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Patsy Miller, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Related document(s) 287 ) (Leyton, Stacey) (Filed on 6/21/2010) (Entered: 06/21/2010)
330 Declaration of Thresa Ward in Support of 287 Ex Parte MOTION for Temporary Restraining Order filed byCharlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Patsy Miller, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Related document(s) 287 ) (Leyton, Stacey) (Filed on 6/21/2010) (Entered: 06/21/2010)
331 Declaration of John Wilkens in Support of 287 Ex Parte MOTION for Temporary Restraining Order filed byCharlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Related document(s) 287 ) (Leyton, Stacey) (Filed on 6/21/2010) (Entered: 06/21/2010)
332 Declaration of Donnetta Wright in Support of 287 Ex Parte MOTION for Temporary Restraining Order filed byCharlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Patsy Miller, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United

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Long−Term Care Workers, Willie Beatrice Sheppard. (Related document(s) 287 ) (Leyton, Stacey) (Filed on 6/21/2010) (Entered: 06/21/2010)
333 Proposed Order re 287 Ex Parte MOTION for Temporary Restraining Order by Charlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Patsy Miller, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Leyton, Stacey) (Filed on 6/21/2010) (Entered: 06/21/2010)
334 Index to Declarations re 287 Ex Parte MOTION for Temporary Restraining Order filed byCharlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Patsy Miller, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Related document(s) 287 ) (Leyton, Stacey) (Filed on 6/21/2010) Modified on 6/22/2010 (cp, COURT STAFF). (Entered: 06/21/2010)
335 MOTION for Leave to File Second Amended Complaint filed by Charlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Patsy Miller, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Leyton, Stacey) (Filed on 6/21/2010) (Entered: 06/21/2010)
336 EXHIBITS re 335 MOTION for Leave to File Second Amended Complaint filed byCharlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Patsy Miller, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Attachments: # 1 Exhibit B)(Related document(s) 335 ) (Leyton, Stacey) (Filed on 6/21/2010) (Entered: 06/21/2010)
337 Declaration of Stacey Leyton in Support of 335 MOTION for Leave to File Second Amended Complaint filed byCharlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Patsy Miller, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Related document(s) 335 ) (Leyton, Stacey) (Filed on 6/21/2010) (Entered: 06/21/2010)
338 Proposed Order re 335 MOTION for Leave to File Second Amended Complaint by Charlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Patsy Miller, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Leyton, Stacey) (Filed on 6/21/2010) (Entered: 06/21/2010)
339 Ex Parte MOTION to Shorten Time FOR LEAVE TO FILE SECOND AMENDED COMPLAINT filed by Charlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Patsy Miller, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Leyton, Stacey) (Filed on 6/21/2010) (Entered: 06/21/2010)
340 Proposed Order re 339 Ex Parte MOTION to Shorten Time FOR LEAVE TO FILE SECOND AMENDED COMPLAINT by Charlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer,

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06/25/2010

Patsy Miller, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Leyton, Stacey) (Filed on 6/21/2010) (Entered: 06/21/2010)
341 ORDER on Briefing Schedule for Application for Temporary Restraining Order (cwlc3, COURT STAFF) (Filed on 6/22/2010) (Entered: 06/22/2010)
Set/Reset Deadlines as to 287 Ex Parte MOTION for Temporary Restraining Order, 335 MOTION for Leave to File Second Amended Complaint. Motion Hearing set for 6/29/2010 02:00 PM. (cp, COURT STAFF) (Filed on 6/23/2010) (Entered: 06/23/2010)
342 NOTICE by Fresno County In−Home Supportive Services Public Authority, Fresno County of Non−Opposition to Plaintiffs' Motion For Leave To File Second Amended Complaint (Jeffcoach, Mandy) (Filed on 6/23/2010) Modified on 6/24/2010 (cp, COURT STAFF). (Entered: 06/23/2010)
343 ERRATA re 336 Exhibits,, by Charlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Mikesha Martinez, Herbert M. Meyer, Patsy Miller, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard, Sia Chue Yang. (Attachments: # 1 Exhibit)(Leyton, Stacey) (Filed on 6/23/2010) (Entered: 06/23/2010)
344 Supplemental Brief re 280 Order on Motion to Compel filed byCharlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Mikesha Martinez, Herbert M. Meyer, Patsy Miller, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard, Sia Chue Yang. (Related document(s) 280 ) (Thoreen, Peder) (Filed on 6/25/2010) Modified on 6/28/2010 (cp, COURT STAFF). (Entered: 06/25/2010)
345 Declaration of Peder J. Thoreen in Support of 344 Brief,, filed byCharlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Mikesha Martinez, Herbert M. Meyer, Patsy Miller, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard, Sia Chue Yang. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Related document(s) 344 ) (Thoreen, Peder) (Filed on 6/25/2010) (Entered: 06/25/2010)
346 Proposed Order Granting re 269 MOTION to Compel Production of Documents, by Charlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Mikesha Martinez, Herbert M. Meyer, Patsy Miller, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard, Sia Chue Yang. (Thoreen, Peder) (Filed on 6/25/2010) Modified on 6/28/2010 (cp, COURT STAFF). (Entered: 06/25/2010)
347 Memorandum in Opposition re 287 Ex Parte MOTION for Temporary Restraining Order filed byFresno County, Fresno County In−Home Supportive Services Public Authority. (Attachments: # 1 Affidavit Declaration of Kathleen Grassi in Support of Opposition, # 2 Affidavit Declaration of Richard Kaz in Support of Opposition, # 3 Affidavit Declaration of Sanja Kovacevic in Support of Opposition, # 4 Affidavit Declaration of John Pinheiro in Support of Opposition, # 5 Affidavit Declaration of Michael Beaton in Support of Opposition, # 6 Affidavit Declaration of Kathleen Donawa in Support of Opposition, # 7 Affidavit Declaration of Catherine Basham in Support of Opposition, # 8 Exhibit Exhibit A to Declaration of Catherine Basham, # 9 Exhibit Exhibit B to Declaration of Catherine Basham, # 10 Exhibit Exhibit C to

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Declaration of Catherine Basham, # 11 Exhibit Exhibit D to Declaration of Catherine Basham, # 12 Exhibit Exhibit E to Declaration of Catherine Basham)(Jeffcoach, Mandy) (Filed on 6/25/2010) (Entered: 06/25/2010)
348 Memorandum in Opposition re 335 MOTION for Leave to File Second Amended Complaint filed byJohn Chiang, David Maxwell−Jolly, Arnold Schwarzenegger, John A. Wagner. (Carson, Susan) (Filed on 6/25/2010) Modified on 6/28/2010 (cp, COURT STAFF). (Entered: 06/25/2010)
349

***FILED IN ERROR, REFER TO DOCUMENT # 352 ***

06/25/2010

Declaration of Susan M. Carson in Support of 348 Memorandum in Opposition, /State Defendants' Opposition to Plaintiffs Motion to File Second Amended Complaint filed byJohn Chiang, David Maxwell−Jolly, Arnold Schwarzenegger, John A. Wagner. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Related document(s) 348 ) (Carson, Susan) (Filed on 6/25/2010) Modified on 6/28/2010 (cp, COURT STAFF). (Entered: 06/25/2010)
350

***FILED IN ERROR, REFER TO DOCUMENT # 370 ***

06/25/2010 06/28/2010 06/28/2010 06/28/2010
06/28/2010

Declaration of Rolonda Moen in Support of 348 Memorandum in Opposition, /State Defendants' Opposition to Plaintiffs Motion to File Second Amended Complaint filed byJohn Chiang, David Maxwell−Jolly, Arnold Schwarzenegger, John A. Wagner. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D1, # 5 Exhibit D2, # 6 Exhibit D3, # 7 Exhibit E1, # 8 Exhibit E2, # 9 Exhibit E3)(Related document(s) 348 ) (Carson, Susan) (Filed on 6/25/2010) Modified on 6/29/2010 (cp, COURT STAFF). (Entered: 06/25/2010)
351 Memorandum in Opposition re 287 Ex Parte MOTION for Temporary Restraining Order filed byJohn Chiang, David Maxwell−Jolly, Arnold Schwarzenegger, John A. Wagner. (Carson, Susan) (Filed on 6/25/2010) Modified on 6/28/2010 (cp, COURT STAFF). (Entered: 06/25/2010)
352 Declaration of Susan M. Carson in Support of 348 Memorandum in Opposition, CORRECTION TO DOCKET 349 filed byJohn Chiang, David Maxwell−Jolly, Arnold Schwarzenegger, John A. Wagner. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Related document(s) 348 ) (Carson, Susan) (Filed on 6/28/2010) (Entered: 06/28/2010)
353 CORRECTED Opposition re 287 Ex Parte MOTION for Temporary Restraining Order filed byJohn Chiang, David Maxwell−Jolly, Arnold Schwarzenegger, John A. Wagner. (Carson, Susan) (Filed on 6/28/2010) Modified on 6/29/2010 (cp, COURT STAFF). (Entered: 06/28/2010)
354 Reply Memorandum re 335 MOTION for Leave to File Second Amended Complaint, 287 Ex Parte MOTION for Temporary Restraining Order filed byCharlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Patsy Miller, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Leyton, Stacey) (Filed on 6/28/2010) (Entered: 06/28/2010)
355 MOTION for Leave to File Excess Pages FOR CONSOLIDATED REPLY BRIEF IN SUPPORT OF TEMPORARY RESTRAINING ORDER AND REPLY BRIEF IN SUPPORT OF MOTION FOR LEAVE TO FILE AMENDED COMPLAINT filed by Charlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Patsy Miller, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Leyton, Stacey) (Filed on 6/28/2010) (Entered: 06/28/2010)

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356 Request for Judicial Notice re 354 Reply Memorandum,, filed byCharlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Patsy Miller, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Related document(s) 354 ) (Leyton, Stacey) (Filed on 6/28/2010) (Entered: 06/28/2010)
357 OBJECTIONS to re 370 Declaration in Support, by Charlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Patsy Miller, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Leyton, Stacey) (Filed on 6/28/2010) Modified on 6/29/2010 (cp, COURT STAFF). (Entered: 06/28/2010)
358 Declaration of Peder Thoreen in Support of 354 Reply Memorandum,, filed byCharlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Patsy Miller, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Attachments: # 1 Exhibit A1, # 2 Exhibit A2, # 3 Exhibit A3, # 4 Exhibit B, # 5 Exhibit C1, # 6 Exhibit C2, # 7 Exhibit C3, # 8 Exhibit C4 Related document(s) 354 ) (Leyton, Stacey) (Filed on 6/28/2010) Modified on 7/7/2010 (ewn, COURT STAFF). Modified on 7/21/2010 (cp, COURT STAFF).

***DOCKET NUMBERS 358−1 THROUGH 358−3 AND 358−5 THROUGH 358−8 REMOVED PER ORDER DOCUMENT # 384 ***

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(Entered: 06/28/2010)
359 Declaration of Candace Howes in Support of 354 Reply Memorandum,, Supplemental filed byCharlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Patsy Miller, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Related document(s) 354 ) (Leyton, Stacey) (Filed on 6/28/2010) (Entered: 06/28/2010)
360 Declaration of Mitchell LaPlante in Support of 354 Reply Memorandum,, filed byCharlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Patsy Miller, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Related document(s) 354 ) (Leyton, Stacey) (Filed on 6/28/2010) (Entered: 06/28/2010)
361 Declaration of Margaret Baran in Support of 354 Reply Memorandum,, filed byCharlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Related document(s) 354 ) (Leyton, Stacey) (Filed on 6/28/2010) (Entered: 06/28/2010)
362 Declaration of Rebecca Malberg in Support of 354 Reply Memorandum,, filed byCharlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Patsy Miller, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West,

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Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Related document(s) 354 ) (Leyton, Stacey) (Filed on 6/28/2010) (Entered: 06/28/2010)
363 Declaration of Rachel Kinney in Support of 354 Reply Memorandum,, filed byCharlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Patsy Miller, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Attachments: # 1 Exhibit A)(Related document(s) 354 ) (Leyton, Stacey) (Filed on 6/28/2010) (Entered: 06/28/2010)
364 Declaration of Thresa Ward in Support of 354 Reply Memorandum,, Supplemental filed byCharlene Ayers, Alex Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Patsy Miller, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Related document(s) 354 ) (Leyton, Stacey) (Filed on 6/28/2010) (Entered: 06/28/2010)
365 Declaration of Greg Price in Support of 354 Reply Memorandum,, filed byCharlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Patsy Miller, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Related document(s) 354 ) (Leyton, Stacey) (Filed on 6/28/2010) (Entered: 06/28/2010)
366 Declaration of Stacy Comstock in Support of 354 Reply Memorandum,, filed byCharlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Patsy Miller, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Related document(s) 354 ) (Leyton, Stacey) (Filed on 6/28/2010) (Entered: 06/28/2010)
367 Declaration of Diana Kenderian in Support of 354 Reply Memorandum,, filed byCharlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Patsy Miller, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Related document(s) 354 ) (Leyton, Stacey) (Filed on 6/28/2010) (Entered: 06/28/2010)
368 Declaration of Yvonne Olivares−Maldonado in Support of 354 Reply Memorandum,, filed byCharlene Ayers, Alex Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Patsy Miller, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Related document(s) 354 ) (Leyton, Stacey) (Filed on 6/28/2010) (Entered: 06/28/2010)
369 Declaration of Marsha Roberts in Support of 354 Reply Memorandum,, filed byCharlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Patsy Miller, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Related document(s) 354 ) (Leyton, Stacey) (Filed on 6/28/2010) (Entered: 06/28/2010)

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07/08/2010

370 DECLARATION of Rolonda Moen in support of re 348 Memorandum in Opposition (CORRECTION OF DOCUMENT 350 ) filed byJohn Chiang, Fresno County, Fresno County In−Home Supportive Services Public Authority, David Maxwell−Jolly, Arnold Schwarzenegger, John A. Wagner. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Related document(s) 348 ) (Carson, Susan) (Filed on 6/28/2010) Modified on 6/29/2010 (cp, COURT STAFF). (Entered: 06/28/2010)
371 ORDER by Judge Claudia Wilken Granting 287 Plaintiffs' Application for a Temporary Restraining Order and Order to Show Case Why Preliminary Injunction Should Not Issue (cwlc3, COURT STAFF) (Filed on 6/29/2010) (Entered: 06/29/2010)
375 Minute Entry: Motion Hearing held on 6/29/2010 before Claudia Wilken (Date Filed: 6/29/2010). (Court Reporter Raynee Mercado.) (ndr, COURT STAFF) (Date Filed: 6/29/2010) (Entered: 07/02/2010)
372 CLERKS NOTICE TAKING MOTION UNDER SUBMISSION (ndr, COURT STAFF) (Filed on 6/30/2010) (Entered: 06/30/2010)
373 Declaration of Rolonda Moen Re Recission of States Approval of Fresno County's Rate Change Request of May 25, 2010 w/ Exhibits A−B by John Chiang, David Maxwell−Jolly, Arnold Schwarzenegger, John A. Wagner. (Carson, Susan) (Filed on 6/30/2010) Modified on 7/1/2010 (cp, COURT STAFF). (Entered: 06/30/2010)
374 CLERKS NOTICE SETTING HEARING ON PLAINTIFF'S MOTION TO COMPEL PRODUCTION OF DOCUMENTS. Motion Hearing set for 8/4/2010 09:30 AM in Courtroom F, 15th Floor, San Francisco. (jlsec, COURT STAFF) (Filed on 7/1/2010) (Entered: 07/01/2010)
376 ORDER by Judge Claudia Wilken Granting 287 Application for a Temporary Restraining Order and Order to Show Cause Why a Preliminary Injunction Should Not Issue and 355 Motion for Leave to File Excess Pages (cwlc3, COURT STAFF) (Filed on 7/2/2010) (Entered: 07/02/2010)
377 Supplemental Opposition to Plaintiffs' Motion to Compel filed byJohn Chiang, David Maxwell−Jolly, Arnold Schwarzenegger, John A. Wagner. (Attachments: # 1 Affidavit Decl. of Susan Carson ISO State Defendants' Supplemental Opposition to Plaintiffs' Motion to Compel, # 2 Exhibit A to Decl. of Susan Carson, # 3 Exhibit B to Decl. of Susan Carson, # 4 Exhibit C to Decl. of Susan Carson)(Carson, Susan) (Filed on 7/2/2010) Modified on 7/7/2010 (cp, COURT STAFF). (Entered: 07/02/2010)
378 STIPULATION AND (PROPOSED) ORDER TO CONTINUE THE HEARING DATE RE PLAINTIFFS MOTION TO COMPEL by John Chiang, David Maxwell−Jolly, Arnold Schwarzenegger, John A. Wagner, Lydia Dominguez, et al. (Carson, Susan) (Filed on 7/2/2010) Modified on 7/7/2010 (cp, COURT STAFF). (Entered: 07/02/2010)
379 MOTION to Remove Incorrectly Filed Document filed by Charlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Patsy Miller, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Attachments: # 1 Proposed Order)(Leyton, Stacey) (Filed on 7/7/2010) (Entered: 07/07/2010)
380 Administrative Motion to File Under Seal filed by Charlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Patsy Miller, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Attachments: # 1 Proposed Order)(Cincotta, Caroline) (Filed on 7/8/2010) (Entered: 07/08/2010)
381 NOTICE by Charlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Patsy Miller, Service

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07/21/2010 07/23/2010 07/23/2010

Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard re 380 Administrative Motion to File Under Seal of Manual Filing (Cincotta, Caroline) (Filed on 7/8/2010) (Entered: 07/08/2010)
382 Declaration of Leora Filosena Re CMIPS Programming as of July 6, 2010 by David Maxwell−Jolly, Arnold Schwarzenegger, John Chiang. (Bunshoft, Jennifer) (Filed on 7/8/2010) Modified on 7/9/2010 (cp, COURT STAFF). (Entered: 07/08/2010)
383 ORDER CONTINUING MOTION HEARING re 378 Stipulation, filed by Service Employees International Union California State Council, Andy Martinez, Charlene Ayers, Service Employees International Union United Health Care Workers West, Arnold Schwarzenegger, Leslie Gordon, Patsy Miller, David Maxwell−Jolly, Donna Brown, Service Employees International Union Local 521, John Chiang, Lydia Dominguez, Service Employees International Union United Long−Term Care Workers, Herbert M. Meyer, Chloe Lipton, John A. Wagner, Willie Beatrice Sheppard. Signed by Judge James Larson on 7/12/10. (jlsec, COURT STAFF) (Filed on 7/12/2010) (Entered: 07/12/2010)
Set/Reset Hearings: Motion to Compel Hearing continued to 8/11/2010 09:30 AM before Magistrage Judge James Larson. (cp, COURT STAFF) (Filed on 7/13/2010) (Entered: 07/13/2010)
384 ORDER by Judge Claudia Wilken Granting 379 Motion to Remove Incorrectly Filed Document (cwlc3, COURT STAFF) (Filed on 7/19/2010) (Entered: 07/19/2010)
385 ORDER by Judge Claudia Wilken granting 380 Administrative Motion to File Under Seal (ndr, COURT STAFF) (Filed on 7/19/2010) (Entered: 07/20/2010)
386 DOCUMENT E−FILED UNDER SEAL re 385 Order on Administrative Motion to File Under Seal EXHBITS A & C TO DECLARATION OF PEDER J. THOREEN IN SUPPORT OF REPLY IN SUPPORT OF APPLICATION FOR A TEMPORARY RESTRAINING ORDER by Charlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Patsy Miller, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Attachments: # 1 Exhibit A2, # 2 Exhibit A3, # 3 Exhibit C1, # 4 Exhibit C2, # 5 Exhibit C3, # 6 Exhibit C4)(Cincotta, Caroline) (Filed on 7/21/2010) (Entered: 07/21/2010)
387 EXHIBITS re 358 Declaration in Support,,, Exhibit D filed byCharlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Patsy Miller, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Related document(s) 358 ) (Thoreen, Peder) (Filed on 7/21/2010) (Entered: 07/21/2010)
388 Joint Statement Regarding Dispute Re Number of Depositions to be Taken by Defendants by Fresno County, Fresno County In−Home Supportive Services Public Authority, David Maxwell−Jolly, Arnold Schwarzennegger, John A. Wagner. (Jeffcoach, Mandy) (Filed on 7/21/2010) Modified on 7/22/2010 (cp, COURT STAFF). (Entered: 07/21/2010)
389 CLERKS NOTICE Discovery Hearing on Joint Statement Re: Number of Depositions 388 set for 8/25/2010 09:30 AM before the Honorable James Larson in Courtroom F, 15th Floor, San Francisco. (fj, COURT STAFF) (Filed on 7/23/2010) (Entered: 07/23/2010)
390 SUPPLEMENTAL OPPOSITION TO PLAINTIFFS' MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT filed byJohn Chiang, David Maxwell−Jolly, Arnold Schwarzenegger, John A. Wagner. (Brown, Gregory) (Filed on 7/23/2010) Modified on 7/26/2010 (cp, COURT STAFF). (Entered: 07/23/2010)

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391 Reply Memorandum (Supplemental) in Support of Motion to Compel filed byCharlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Mikesha Martinez, Herbert M. Meyer, Patsy Miller, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard, Sia Chue Yang. (Thoreen, Peder) (Filed on 7/28/2010) (Entered: 07/28/2010)
392 Declaration of Peder J. Thoreen in Support of 391 Reply filed byCharlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Mikesha Martinez, Herbert M. Meyer, Patsy Miller, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard, Sia Chue Yang. (Attachments: # 1 Exhibit A)(Related document(s) 391 ) (Thoreen, Peder) (Filed on 7/28/2010) Modified on 7/29/2010 (cp, COURT STAFF). (Entered: 07/28/2010)
393 Proposed Order Granting Motion to Compel Production of Documents by Charlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Mikesha Martinez, Herbert M. Meyer, Patsy Miller, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard, Sia Chue Yang. (Thoreen, Peder) (Filed on 7/28/2010) Modified on 7/29/2010 (cp, COURT STAFF). (Entered: 07/28/2010)
394 Supplemental Reply in Support of 335 MOTION for Leave to File Second Amended Complaint filed by Charlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Patsy Miller, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Leyton, Stacey) (Filed on 7/30/2010) Modified on 8/2/2010 (kc, COURT STAFF). (Entered: 07/30/2010)
395 Declaration of Debra Roth in Support of 394 Reply Memorandum,, filed byCharlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Patsy Miller, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Attachments: # 1 Exhibit A)(Related document(s) 394 ) (Leyton, Stacey) (Filed on 7/30/2010) (Entered: 07/30/2010)
396 Request for Judicial Notice re 394 Reply Memorandum,, filed byCharlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Patsy Miller, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G)(Related document(s) 394 ) (Leyton, Stacey) (Filed on 7/30/2010) (Entered: 07/30/2010)
397 CLERKS NOTICE Hearing on Plaintiff's motion to compel 344 rescheduled to 8/25/2010 09:30 AM before the Honorable James Larson in Courtroom F, 15th Floor, San Francisco. (fj, COURT STAFF) (Filed on 8/2/2010) (Entered: 08/02/2010)
398 Minute Entry: Hearing on plaintiff's motion to compel 344 held on 8/25/2010 before James Larson (Date Filed: 8/25/2010). Matter taken under submission. Matter regarding disputed number of depositions 388 will also be addressed in the ruling. (Court Reporter Sahar McVickar.) (fj, COURT STAFF) (Date Filed: 8/25/2010) (fj, COURT STAFF). (Entered: 08/25/2010)

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10/22/2010

399 ORDER GRANTING IN PART DEFENDANTS' REQUEST FOR ADDITIONAL DEPOSITIONS re 388 Statement, filed by David Maxwell−Jolly,; ORDER GRANTING IN PART PLAINTIFFS' MOTION TO COMPEL 344 Brief,, filed by Service Employees International Union California State Council. Signed by Judge James Larson on 8/25/10. (jlsec, COURT STAFF) (Filed on 8/25/2010) (Entered: 08/25/2010)
***Deadlines terminated. 8/25/2010. 398 Motion Hearing. (cp, COURT STAFF) (Filed on 8/26/2010) (Entered: 08/26/2010)
400 MOTION for Extension of Time to Comply with Magistrate's Order to Conform to Local Civil Rule 72(A) filed by John Chiang, David Maxwell−Jolly, Arnold Schwarzenegger, John A. Wagner. (Carson, Susan) (Filed on 8/27/2010) Modified on 8/30/2010 (cp, COURT STAFF). (Entered: 08/27/2010)
401 Proposed Order re 400 MOTION for Extension of Time to Comply with Magistrate's Order to Conform to Local Civil Rule 72(A) by John Chiang, David Maxwell−Jolly, Arnold Schwarzenegger, John A. Wagner. (Carson, Susan) (Filed on 8/30/2010) Modified on 8/31/2010 (cp, COURT STAFF). (Entered: 08/30/2010)
402 ORDER by Judge Claudia Wilken Granting 335 Plaintiffs' Motion for Leave to File Second Amended Complaint (cwlc3, COURT STAFF) (Filed on 8/30/2010) (Entered: 08/30/2010)
403 AMENDED COMPLAINT (Second) against John Chiang, Fresno County, Fresno County In−Home Supportive Services Public Authority, David Maxwell−Jolly, Arnold Schwarzenegger, John A. Wagner. Filed byLeslie Gordon, Patsy Miller, Lydia Dominguez, Service Employees International Union Local 521, Herbert M. Meyer, Mikesha Martinez, Sia Chue Yang, Alex Brown, Willie Beatrice Sheppard, Service Employees International Union California State Council, Andy Martinez, Chloe Lipton, Charlene Ayers, Service Employees International Union United Health Care Workers West, Donna Brown, Service Employees International Union United Long−Term Care Workers. (Leyton, Stacey) (Filed on 8/31/2010) (Entered: 08/31/2010)
404 ORDER by Judge James Larson Granting Administrative Motion to Extend Time to Comply 400 Motion Granting (jlsec, COURT STAFF) (Filed on 8/31/2010) (Entered: 08/31/2010)
405 STIPULATION and Proposed Order Continuing Deadlines, filed by Charlene Ayers, Alex Brown, Donna Brown, California United Homecare Workers, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Patsy Miller, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard, Carolyn Stewart, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO., Arnold Schwarzenegger (Leyton, Stacey) (Filed on 9/30/2010) Modified on 10/1/2010 (jlm, COURT STAFF). (Entered: 09/30/2010)
406 ORDER Granted in part and Denied in part re 405 Stipulation Continuing Deadlines. Signed by Judge Claudia Wilken on 10/5/2010. (ndr, COURT STAFF) (Filed on 10/5/2010) Modified on 10/6/2010 (cp, COURT STAFF). (Entered: 10/05/2010)
407 Joint APPLICATION FOR ADMINISTRATIVE RELIEF CONTINUING DEADLINES filed by Charlene Ayers, Alex Brown, Donna Brown, California United Homecare Workers, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Patsy Miller, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard, Carolyn Stewart, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO, Arnold Schwarzenegger. (Leyton, Stacey) (Filed on 10/22/2010) Modified on 10/25/2010 (cp, COURT STAFF). (Entered: 10/22/2010)
408 Declaration of Stacey Leyton in Support of 407 Joint APPLICATION FOR ADMINISTRATIVE RELIEF CONTINUING DEADLINES filed byCharlene Ayers, Alex Brown, Donna Brown, California United Homecare Workers, Lydia Dominguez,

Case: 4:09-cv-2306 As of: 11/13/2017 04:18 PM PST 61 of 68

10/22/2010
10/25/2010 10/25/2010 10/26/2010
10/28/2010 11/04/2010 11/05/2010 11/22/2010 12/28/2010 01/21/2011

Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Patsy Miller, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard, Carolyn Stewart, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Related document(s) 407 ) (Leyton, Stacey) (Filed on 10/22/2010) Modified on 10/25/2010 (cp, COURT STAFF). (Entered: 10/22/2010)
409 Proposed Order GRANTING JOINT APPLICATION FOR ADMINISTRATIVE RELIEF CONTINUING DEADLINES by Charlene Ayers, Alex Brown, Donna Brown, California United Homecare Workers, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Patsy Miller, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard, Carolyn Stewart, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Leyton, Stacey) (Filed on 10/22/2010) (Entered: 10/22/2010)
410 Opposition re 407 Joint APPLICATION FOR ADMINISTRATIVE RELIEF CONTINUING DEADLINES filed byFresno County, Fresno County In−Home Supportive Services Public Authority. (Attachments: # 1 Proposed Order, # 2 Affidavit)(Buchanan, Timothy) (Filed on 10/25/2010) Modified on 10/26/2010 (cp, COURT STAFF). (Entered: 10/25/2010)
411 DECLARATION of Sanja Kovacevic in Opposition re 407 Joint APPLICATION FOR ADMINISTRATIVE RELIEF CONTINUING DEADLINES filed byFresno County, Fresno County In−Home Supportive Services Public Authority. (Attachments: # 1 Exhibit)(Buchanan, Timothy) (Filed on 10/25/2010) Modified on 10/26/2010 (cp, COURT STAFF). (Entered: 10/25/2010)
412 REPLY in Support re 407 Joint APPLICATION FOR ADMINISTRATIVE RELIEF CONTINUING DEADLINES filed byCharlene Ayers, Alex Brown, Donna Brown, California United Homecare Workers, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Patsy Miller, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard, Carolyn Stewart, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Leyton, Stacey) (Filed on 10/26/2010) Modified on 10/27/2010 (cp, COURT STAFF). (Entered: 10/26/2010)
413 ORDER by Judge Claudia Wilken granting 407 Joint APPLICATION FOR ADMINISTRATIVE RELIEF CONTINUING DEADLINES. (ndr, COURT STAFF) (Filed on 10/28/2010) (Entered: 10/28/2010)
414 Letter from Plaintiffs and State Defendants re: Upcoming Deadlines. (Leyton, Stacey) (Filed on 11/4/2010) (Entered: 11/04/2010)
415 Letter from Tim J. Buchanan. (Buchanan, Timothy) (Filed on 11/5/2010) (Entered: 11/05/2010)
416 CLERKS NOTICE CONTINUING DEADLINES: Bench Trial (15 DAY)set for 12/5/2011 08:30 AM. Further Case Management Conference set for 8/25/2011 02:00 PM. Motion Hearing set for 8/25/2011 02:00 PM. Pretrial Conference set for 11/22/2011 02:00 PM. (ndr, COURT STAFF) (Filed on 11/22/2010) (Entered: 11/22/2010)
417 NOTICE of Change In Counsel by Stacey M. Leyton (Leyton, Stacey) (Filed on 12/28/2010) (Entered: 12/28/2010)
418 Notification from the U.S. Supreme Court: The petition for a writ of certiorari is granted limited to Question 1 presented by the petitions. The petitions for certiorari in No. 09−958 and No. 10−283 are granted. The cases are consolidated and a total of one hour isallotted for oral argument. (kk, COURT STAFF) (Filed on 1/21/2011) (Entered: 01/21/2011)

Case: 4:09-cv-2306 As of: 11/13/2017 04:18 PM PST 62 of 68

01/26/2011
02/03/2011 02/04/2011
02/25/2011 03/02/2011 06/01/2011 08/12/2011
08/16/2011 11/09/2011

419 STIPULATION AND [PROPOSED] ORDER CONTINUING DEADLINES by Charlene Ayers, Alex Brown, Donna Brown, California United Homecare Workers, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Patsy Miller, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard, Carolyn Stewart, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO, Arnold Schwarzenegger, Fresno County, Fresno County In−Home Supportive Services Public Authority. (Leyton, Stacey) (Filed on 1/26/2011) Modified on 1/27/2011 (cp, COURT STAFF). (Entered: 01/26/2011)
420 ORDER Granting 419 Stipulation CONTINUING DEADLINES. Signed by Judge Claudia Wilken on 2/3/2011. (ndr, COURT STAFF) (Filed on 2/3/2011) (Entered: 02/03/2011)
421 SUGGESTION OF DEATH Upon the Record as to Lydia Dominguez by Charlene Ayers, Alex Brown, Donna Brown, California United Homecare Workers, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Mikesha Martinez, Herbert M. Meyer, Patsy Miller, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard, Carolyn Stewart, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO, Sia Chue Yang. (Leyton, Stacey) (Filed on 2/4/2011) (Entered: 02/04/2011)
422 STIPULATION AND [PROPOSED] ORDER STAYING ALL DISTRICT COURT PROCEEDINGS IN THIS ACTION PENDING RESOLUTION OF RELATED PROCEEDINGS IN THE U.S. SUPREME COURT by John Chiang, David Maxwell−Jolly, Arnold Schwarzenegger, John A. Wagner, Lydia Dominguez, Fresno County, et al. (Carson, Susan) (Filed on 2/25/2011) Modified on 2/28/2011 (cp, COURT STAFF). (Entered: 02/25/2011)
423 ORDER Granting 422 Stipulation STAYING ALL DISTRICT COURT PROCEEDINGS IN THIS ACTION PENDING RESOLUTION OF RELATED PROCEEDINGS IN THE U.S. SUPREME COURT. Signed by Judge Claudia Wilken on 3/2/2011. (ndr, COURT STAFF) (Filed on 3/2/2011) (Entered: 03/02/2011)
Due to Magistrate Judge James Larson's retirement, this case is re−referred to Magistrate Judge Jacqueline Scott Corley for discovery. All matters scheduled before, and deadlines set by, Judge Larson are hereby vacated. All future discovery matters should be addressed to Judge Corley unless otherwise ordered by the presiding judge. Please contact Judge Corley's courtroom deputy, Ada Means, at (415)522−2015 or Ada_Means@cand.uscourts.gov with any questions or concerns. (ga, COURT STAFF) (Filed n 6/1/2011) (Entered: 06/01/2011)
424 STIPULATION AND [PROPOSED] ORDER CONTINUING DEADLINES by Charlene Ayers, Alex Brown, Donna Brown, California United Homecare Workers, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Patsy Miller, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard, Carolyn Stewart, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Leyton, Stacey) (Filed on 8/12/2011) (Entered: 08/12/2011)
425 ORDER GRANTING 424 Stipulation CONTINUING DEADLINES. Case Management Statement due by 11/10/2011. Further Case Management Conference set for 11/17/2011 02:00 PM. Signed by Judge CLAUDIA WILKEN on 8/16/2011. (ndr, COURT STAFF) (Filed on 8/16/2011) (Entered: 08/16/2011)
426 STIPULATION AND [PROPOSED] ORDER CONTINUING CASE MANAGEMENT CONFERENCE by Charlene Ayers, Alex Brown, Donna Brown, California United Homecare Workers, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Patsy Miller, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union

Case: 4:09-cv-2306 As of: 11/13/2017 04:18 PM PST 63 of 68

11/14/2011 01/05/2012
01/06/2012 03/22/2012
03/23/2012 03/26/2012 03/28/2012 03/28/2012 07/26/2012

United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard, Carolyn Stewart, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Leyton, Stacey) (Filed on 11/9/2011) (Entered: 11/09/2011)
427 ORDER Granting 426 Stipulation CONTINUING CASE MANAGEMENT CONFERENCE. Case Management Statement due by 1/5/2012. Case Management Conference set for 1/12/2012 02:00 PM. Signed by Judge Claudia Wilken on 11/14/2011. (ndr, COURT STAFF) (Filed on 11/14/2011) (Entered: 11/14/2011)
428 STIPULATION AND [PROPOSED] ORDER CONTINUING CASE MANAGEMENT CONFERENCE by Charlene Ayers, Alex Brown, Donna Brown, California United Homecare Workers, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Patsy Miller, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard, Carolyn Stewart, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO, Arnold Schwarzenegger, Fresno County. (Leyton, Stacey) (Filed on 1/5/2012) Modified on 1/6/2012 (cp, COURT STAFF). (Entered: 01/05/2012)
429 ORDER Granting 428 Stipulation CONTINUING CASE MANAGEMENT CONFERENCE. Case Management Statement due by 3/28/2012. Case Management Conference set for 4/4/2012 02:00 PM. Signed by Judge Claudia Wilken on 1/6/2012. (ndr, COURT STAFF) (Filed on 1/6/2012) (Entered: 01/06/2012)
430 STIPULATION WITH PROPOSED ORDER CONTINUING CASE MANAGEMENT CONFERENCE filed by Charlene Ayers, Alex Brown, Donna Brown, California United Homecare Workers, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Patsy Miller, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard, Carolyn Stewart, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO, Fresno County, Arnold Schwarzenegger, et al. (Leyton, Stacey) (Filed on 3/22/2012) Modified on 3/23/2012 (cp, COURT STAFF). (Entered: 03/22/2012)
431 Order granting 430 Stipulation entered by Hon. Claudia Wilken. (This is a text−only entry generated by the court. There is no document associated with this entry.) (Entered: 03/23/2012)
Set Deadlines/Hearings: Case Management Statement due by 8/1/2012. Case Management Conference set for 8/8/2012 02:00 PM. ** See Text Order, Docket No. 431 ** (ndr, COURT STAFF) (Filed on 3/26/2012) (Entered: 03/26/2012)
432 SUPREME COURT OF THE UNITED STATES OPINION (Nos. 09−958, 09−1158, 10−283) (cp, COURT STAFF) (Filed on 3/28/2012) Modified on 3/28/2012 (cp, COURT STAFF). (Entered: 03/28/2012)
433 SUPREME COURT OF THE UNITED STATES ORDER that the judgment are vacated with costs and the cases are remanded to the USCA for the Ninth Circuit thereby permitting parties to argue the matter before that Circuit in the first instance (Nos. 09−958, 09−1158, 10−283) (cp, COURT STAFF) (Filed on 3/28/2012) Modified on 3/28/2012 (cp, COURT STAFF). (Entered: 03/28/2012)
434 STIPULATION WITH PROPOSED ORDER CONTINUING CASE MANAGEMENT CONFERENCE filed by Charlene Ayers, Alex Brown, Donna Brown, California United Homecare Workers, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Patsy Miller, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard, Carolyn Stewart, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO, Edmund G. Brown, Jr., et al. (Leyton, Stacey) (Filed on 7/26/2012) Modified on 7/27/2012 (cp, COURT STAFF). (Entered: 07/26/2012)

Case: 4:09-cv-2306 As of: 11/13/2017 04:18 PM PST 64 of 68

07/30/2012 07/31/2012 10/03/2012
10/04/2012 10/05/2012 12/21/2012
12/27/2012 12/28/2012 02/27/2013 02/27/2013
02/28/2013 02/28/2013

435 Order granting 434 Stipulation entered by Hon. Claudia Wilken. (This is a text−only entry generated by the court. There is no document associated with this entry.) (Entered: 07/30/2012)
Set Deadlines/Hearings: Case Management Statement due by 10/3/2012. Case Management Conference set for 10/10/2012 02:00 PM. See Text Order, Docket No. 435. (ndr, COURT STAFF) (Filed on 7/31/2012) (Entered: 07/31/2012)
436 STIPULATION WITH PROPOSED ORDER CONTINUING CASE MANAGEMENT CONFERENCE filed by Charlene Ayers, Alex Brown, Donna Brown, California United Homecare Workers, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Patsy Miller, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard, Carolyn Stewart, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO, Fresno County, Arnold Schwarzenegger. (Leyton, Stacey) (Filed on 10/3/2012) Modified on 10/4/2012 (cp, COURT STAFF). (Entered: 10/03/2012)
437 Order granting 436 Stipulation entered by Hon. Claudia Wilken. (This is a text−only entry generated by the court. There is no document associated with this entry.) (Entered: 10/04/2012)
Reset Hearing: Case Management Conference set for 1/9/2013 02:00 PM. See Docket No. 437. (ndr, COURT STAFF) (Filed on 10/5/2012) (Entered: 10/05/2012)
438 STIPULATION WITH PROPOSED ORDER ORDER CONTINUING CASE MANAGEMENT CONFERENCE filed by Charlene Ayers, Alex Brown, Donna Brown, California United Homecare Workers, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Patsy Miller, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard, Carolyn Stewart, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO, Fresno County, Fresno In−Home Supportive Services Public Authority. (Leyton, Stacey) (Filed on 12/21/2012) Modified on 12/26/2012 (cpS, COURT STAFF). (Entered: 12/21/2012)
439 Order granting 438 Stipulation entered by Hon. Claudia Wilken. (This is a text−only entry generated by the court. There is no document associated with this entry.) (Entered: 12/27/2012)
Set Deadlines/Hearings: Case Management Statement due by 2/27/2013. Case Management Conference set for 3/6/2013 02:00 PM. See Docket No. 439. (ndr, COURT STAFF) (Filed on 12/28/2012) Modified on 1/7/2013 (ndr, COURT STAFF). (Entered: 12/28/2012)
440 CASE MANAGEMENT STATEMENT /Status Update filed by Fresno County, Fresno County In−Home Supportive Services Public Authority. (Jeffcoach, Mandy) (Filed on 2/27/2013) (Entered: 02/27/2013)
441 STIPULATION WITH PROPOSED ORDER CONTINUING CASE MANAGEMENT CONFERENCE filed by Charlene Ayers, Alex Brown, Donna Brown, California United Homecare Workers, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Patsy Miller, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard, Carolyn Stewart, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO, Arnold Schwarzenegger, et al. (Leyton, Stacey) (Filed on 2/27/2013) Modified on 2/28/2013 (cpS, COURT STAFF). (Entered: 02/27/2013)
442 ORDER by Judge Claudia Wilken CONTINUING CASE MANAGEMENT CONFERENCE re 440 . (ndr, COURT STAFF) (Filed on 2/28/2013) (Entered: 02/28/2013)
Set Deadlines/Hearings Pursuant to Docket No. 442 : Case Management Statement due by 5/1/2013. Case Management Conference set for 5/8/2013 02:00 PM. (ndr,

Case: 4:09-cv-2306 As of: 11/13/2017 04:18 PM PST 65 of 68

03/27/2013 03/28/2013
03/28/2013
03/28/2013 03/29/2013 04/03/2013

COURT STAFF) (Filed on 2/28/2013) (Entered: 02/28/2013)
443 JOINT STATUS REPORT BY PLAINTIFFS AND STATE DEFENDANTS by Charlene Ayers, Alex Brown, Donna Brown, California United Homecare Workers, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Patsy Miller, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard, Carolyn Stewart, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO, Arnold Schwarzenegger, John A. Wagner, John Chiang. (Leyton, Stacey) (Filed on 3/27/2013) Modified on 3/28/2013 (cpS, COURT STAFF). (Entered: 03/27/2013)
444 MOTION for Preliminary Approval of Class Settlement Agreement and for an Order Directing Notice to the Class, Scheduling a Fairness Hearing, Amending the Class Certification Order, and Dismissing Certain Defendants; Memorandum of Points and Authorities in Support of Motion filed by Charlene Ayers, Alex Brown, Donna Brown, California United Homecare Workers, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Mikesha Martinez, Herbert M. Meyer, Patsy Miller, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard, Carolyn Stewart, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO, Sia Chue Yang. Motion Hearing set for 4/4/2013 02:00 PM in Courtroom 2, 4th Floor, Oakland before Hon. Claudia Wilken. Responses due by 4/11/2013. Replies due by 4/18/2013. (Attachments: # 1 Proposed Order)(Leyton, Stacey) (Filed on 3/28/2013) Modified on 3/29/2013 (cpS, COURT STAFF). (Entered: 03/28/2013)
445 Declaration of Stacey M. Leyton in Support of 444 MOTION for Preliminary Approval of Class Settlement Agreement and for an Order Directing Notice to the Class, Scheduling a Fairness Hearing, Amending the Class Certification Order, and Dismissing Certain Defendants filed byCharlene Ayers, Alex Brown, Donna Brown, California United Homecare Workers, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Mikesha Martinez, Herbert M. Meyer, Patsy Miller, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard, Carolyn Stewart, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO, Sia Chue Yang. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Related document(s) 444 ) (Leyton, Stacey) (Filed on 3/28/2013) Modified on 3/29/2013 (cpS, COURT STAFF). (Entered: 03/28/2013)
446 MOTION to Shorten Time for Motion for Preliminary Approval and to Lift Stay of Proceedings filed by Charlene Ayers, Alex Brown, Donna Brown, California United Homecare Workers, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Mikesha Martinez, Herbert M. Meyer, Patsy Miller, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard, Carolyn Stewart, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO, Sia Chue Yang. (Attachments: # 1 Proposed Order)(Leyton, Stacey) (Filed on 3/28/2013) (Entered: 03/28/2013)
447 Order granting 446 Motion to Shorten Time entered by Hon. Claudia Wilken. (This is a text−only entry generated by the court. There is no document associated with this entry.) (Entered: 03/29/2013)
448 SUGGESTION OF DEATH Upon the Record as to Patsy Miller and Andy Martinez by Charlene Ayers, Alex Brown, Donna Brown, California United Homecare Workers, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Mikesha Martinez, Herbert M. Meyer, Patsy Miller, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard, Carolyn Stewart, United Domestic Workers of America, AFSCME, Local 3930,

Case: 4:09-cv-2306 As of: 11/13/2017 04:18 PM PST 66 of 68

04/04/2013 04/04/2013 04/05/2013 04/30/2013
04/30/2013
05/01/2013 05/02/2013 05/07/2013
05/07/2013

AFL−CIO, Sia Chue Yang. (Leyton, Stacey) (Filed on 4/3/2013) (Entered: 04/03/2013)
449 Minute Entry: Motion Hearing held on 4/4/2013 before Claudia Wilken (Date Filed: 4/4/2013). (Court Reporter Raynee Mercado.) (ndr, COURT STAFF) (Date Filed: 4/4/2013) (Entered: 04/04/2013)
450 ORDER by Judge Claudia Wilken Granting 444 Motion for Preliminary Approval of Class Settlement Agreement and for an Order Directing Notice to the Class, Scheduling a Fairness Hearing, Amending the Class Certification Order, and Dismissing Certain Defendants (ndr, COURT STAFF) (Filed on 4/4/2013) (Entered: 04/04/2013)
451 NOTICE OF PARTIES AGREEMENT UPON MODIFIED CLASS NOTICE by Charlene Ayers, Alex Brown, Donna Brown, Leslie Gordon, Chloe Lipton, Herbert M. Meyer, Willie Beatrice Sheppard, Carolyn Stewart (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Leyton, Stacey) (Filed on 4/5/2013) Modified on 4/5/2013 (cpS, COURT STAFF). (Entered: 04/05/2013)
452 UNOPPOSED MOTION FOR COURT APPROVAL OF VOLUNTARY DISMISSAL OF FRESNO DEFENDANTS CONTINGENT UPON FINAL APPROVAL OF CLASS SETTLEMENT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION filed by Charlene Ayers, Alex Brown, Donna Brown, California United Homecare Workers, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Patsy Miller, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard, Carolyn Stewart, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. Motion Hearing set for 6/6/2013 02:00 PM in Courtroom 2, 4th Floor, Oakland before Hon. Claudia Wilken. Responses due by 5/14/2013. Replies due by 5/21/2013. (Attachments: # 1 Proposed Order Stipulation and [Proposed] Order)(Leyton, Stacey) (Filed on 4/30/2013) Modified on 5/1/2013 (cpS, COURT STAFF). Modified on 5/1/2013 (cpS, COURT STAFF). (Entered: 04/30/2013)
453 Ex Parte MOTION to Shorten Time FOR MOTION FOR COURT APPROVAL OF VOLUNTARY DISMISSAL OF FRESNO DEFENDANTS CONTINGENT UPON FINAL APPROVAL OF CLASS ACTION SETTLEMENT filed by Charlene Ayers, Alex Brown, Donna Brown, California United Homecare Workers, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Patsy Miller, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard, Carolyn Stewart, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Attachments: # 1 Proposed Order)(Leyton, Stacey) (Filed on 4/30/2013) (Entered: 04/30/2013)
454 Order granting 453 Motion to Shorten Time entered by Hon. Claudia Wilken. (This is a text−only entry generated by the court. There is no document associated with this entry.) (Entered: 05/01/2013)
Reset Hearing as to 452 MOTION to Dismiss Fresno defendants contingent upon final approval of class settlement: Motion Hearing set for 5/23/2013 02:00 PM before Hon. Claudia Wilken. (ndr, COURT STAFF) (Filed on 5/2/2013) (Entered: 05/02/2013)
455 STIPULATION WITH PROPOSED ORDER VACATING CASE MANAGEMENT CONFERENCE filed by Charlene Ayers, Alex Brown, Donna Brown, California United Homecare Workers, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Patsy Miller, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard, Carolyn Stewart, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Leyton, Stacey) (Filed on 5/7/2013) (Entered: 05/07/2013)
456 Order granting 455 Stipulation entered by Hon. Claudia Wilken. (This is a text−only entry generated by the court. There is no document associated with this

Case: 4:09-cv-2306 As of: 11/13/2017 04:18 PM PST 67 of 68

05/08/2013

entry.) (Entered: 05/07/2013)
CLERKS NOTICE. Notice is hereby given that the Case Management Conference, previously set for Wednesday, May 8, 2013, is vacated.

(This is a text only docket entry, there is no document associated with this notice.)

05/10/2013 05/10/2013
05/10/2013
05/22/2013
05/23/2013 05/23/2013 05/23/2013 07/08/2013

(ndr, COURT STAFF) (Filed on 5/8/2013) (Entered: 05/08/2013)
457 Declaration of Gregory D. Brown in Support of Final Approval of Class Settlement filed byDavid Maxwell−Jolly, John A. Wagner. (Brown, Gregory) (Filed on 5/10/2013) (Entered: 05/10/2013)
458 MOTION FOR FINAL APPROVAL OF CLASS SETTLEMENT AGREEMENT filed by Charlene Ayers, Alex Brown, Donna Brown, California United Homecare Workers, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Patsy Miller, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard, Carolyn Stewart, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. Motion Hearing set for 5/23/2013 02:00 PM in Courtroom 2, 4th Floor, Oakland before Hon. Claudia Wilken. Responses due by 5/24/2013. Replies due by 5/31/2013. (Attachments: # 1 Proposed Order, # 2 Exhibit Settlement Agreement)(Leyton, Stacey) (Filed on 5/10/2013) Modified on 5/13/2013 (cpS, COURT STAFF). (Entered: 05/10/2013)
459 Declaration of Stacey M. Leyton in Support of 458 MOTION FOR FINAL APPROVAL OF CLASS SETTLEMENT AGREEMENT filed byCharlene Ayers, Alex Brown, Donna Brown, California United Homecare Workers, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Patsy Miller, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard, Carolyn Stewart, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Attachments: # 1 Exhibit A)(Related document(s) 458 ) (Leyton, Stacey) (Filed on 5/10/2013) Modified on 5/13/2013 (cpS, COURT STAFF). (Entered: 05/10/2013)
460 Supplemental Declaration of Stacey M. Leyton in Support of 458 MOTION FOR FINAL APPROVAL OF CLASS SETTLEMENT AGREEMENT Supplemental filed byCharlene Ayers, Alex Brown, Donna Brown, California United Homecare Workers, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Patsy Miller, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard, Carolyn Stewart, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO. (Related document(s) 458 ) (Leyton, Stacey) (Filed on 5/22/2013) Modified on 5/23/2013 (cpS, COURT STAFF). (Entered: 05/22/2013)
461 ORDER by Judge Claudia Wilken Granting 458 Final Approval of Class Settlement. (ndr, COURT STAFF) (Filed on 5/23/2013) (Entered: 05/23/2013)
462 Minute Entry: Motion Hearing held on 5/23/2013 before Claudia Wilken (Date Filed: 5/23/2013). (Court Reporter Diane Skillman.) (ndr, COURT STAFF) (Date Filed: 5/23/2013) (Entered: 05/23/2013)
463 ORDER by Judge Claudia Wilken Granting 452 Stipulation for VOLUNTARY DISMISSAL OF FRESNO DEFENDANTS CONTINGENT UPON FINAL APPROVAL OF CLASS SETTLEMENT. (ndr, COURT STAFF) (Filed on 5/23/2013)(Entered on 5/24/2013) (Entered: 05/24/2013)
464 ORDER/MANDATE of USCA granting joint motion to dismiss appeal as moot as to 138 Notice of Appeal filed by David Maxwell−Jolly, John Chiang, Arnold Schwarzenegger, John A. Wagner (cpS, COURT STAFF) (Filed on 7/8/2013) (Entered: 07/10/2013)

Case: 4:09-cv-2306 As of: 11/13/2017 04:18 PM PST 68 of 68

08/01/2013
08/07/2013 08/29/2014 09/03/2014

465 STIPULATION WITH PROPOSED ORDER for Dismissal by Charlene Ayers, Alex Brown, Donna Brown, California United Homecare Workers, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Mikesha Martinez, David Maxwell−Jolly, Herbert M. Meyer, Patsy Miller, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long−Term Care Workers, Willie Beatrice Sheppard, Carolyn Stewart, United Domestic Workers of America, AFSCME, Local 3930, AFL−CIO, John A. Wagner, Sia Chue Yang re 461 Order on Motion for Settlement (Attachments: # 1 Exhibit A)(Leyton, Stacey) (Filed on 8/1/2013) Modified on 8/2/2013 (cpS, COURT STAFF). (Entered: 08/01/2013)
466 ORDER by Judge Claudia Wilken Granting 465 Stipulation for Dismissal. (Attachments: # 1 Exhibit A) (ndr, COURT STAFF) (Filed on 8/7/2013) (Entered: 08/07/2013)
467 STIPULATION WITH PROPOSED ORDER to Amend Settlement Agreement filed by John Chiang, Fresno County, Fresno County In−Home Supportive Services Public Authority, David Maxwell−Jolly, Arnold Schwarzenegger, John A. Wagner, Alex Brown, et al. (Carson, Susan) (Filed on 8/29/2014) Modified on 9/2/2014 (cpS, COURT STAFF). (Entered: 08/29/2014)
468 ORDER by Judge Claudia Wilken Granting 467 Stipulation to Amend Settlement Agreement. (ndr, COURT STAFF) (Filed on 9/3/2014) (Entered: 09/03/2014)

 
 General Docket United States Court of Appeals for the Ninth Circuit

Court of Appeals Docket #: 09-16359 Nature of Suit: 3890 Other Statutory Actions Lydia Dominguez, et al v. Arnold Schwarzenegger, et al Appeal From: U.S. District Court for Northern California, Oakland Fee Status: Paid

Case Type Information: 1) civil 2) private 3) null

Originating Court Information:

District: 0971-4 : 4:09-cv-02306-CW

Court Reporter: Diane E. Skillman, Official Court Reporter

Trial Judge: Claudia Wilken, Chief District Judge

Date Filed: 05/26/2009

Date Order/Judgment:

Date Order/Judgment EOD:

06/26/2009

06/26/2009

Date NOA Filed: 06/29/2009

Prior Cases: None

Current Cases: Companion Related

Lead
09-55365
09-16359 09-16359 09-16359 09-55692 09-55692

Member
09-55532
09-55365 09-55532 09-55692 09-55365 09-55532

Start

End

04/08/2009

07/24/2009 07/24/2009 07/24/2009 05/19/2009 05/19/2009

Docketed: 06/30/2009 Termed: 07/08/2013
Date Rec'd COA: 06/30/2009

MIKESHA MARTINEZ, by and through her husband and next friend Carlos Martinez Terminated: 01/19/2010
Plaintiff - Appellee,
SIA CHUE YANG Terminated: 02/23/2010
Plaintiff - Appellee,
LYDIA DOMINGUEZ, by and through her mother and next friend Lisa Brown
Plaintiff - Appellee,

Scott A. Kronland [COR LD NTC Retained] Altshuler Berzon LLP 177 Post Street San Francisco, CA 94108
Stacey Leyton, Attorney [COR LD NTC Dep State Aty Gen] Altshuler Berzon LLP 177 Post Street San Francisco, CA 94108
Peder J. Thoreen [COR LD NTC Retained] Altshuler Berzon LLP 177 Post Street San Francisco, CA 94108
Stephen P. Berzon [COR NTC Retained] Altshuler Berzon LLP

Altshuler Berzon LLP 177 Post Street San Francisco, CA 94108

ALEX BROWN, by and through his mother and next friend Lisa Brown
Plaintiff - Appellee,

Scott A. Kronland [COR LD NTC Retained] (see above)

Stacey Leyton, Attorney [COR LD NTC Dep State Aty Gen] (see above)

Peder J. Thoreen [COR LD NTC Retained] (see above)

Stephen P. Berzon [COR NTC Retained] (see above)

DONNA BROWN, by and through her conservator and next friend Scott A. Kronland

Julie Weissman-Steinbaugh

[COR LD NTC Retained]

Plaintiff - Appellee,

(see above)

Stacey Leyton, Attorney [COR LD NTC Dep State Aty Gen] (see above)

Peder J. Thoreen [COR LD NTC Retained] (see above)

Stephen P. Berzon [COR NTC Retained] (see above)

CHLOE LIPTON, by and through her conservator and next friend Julie Weissman-Steinbaugh
Plaintiff - Appellee,

Scott A. Kronland [COR LD NTC Retained] (see above)

Stacey Leyton, Attorney [COR LD NTC Dep State Aty Gen] (see above)

Peder J. Thoreen [COR LD NTC Retained] (see above)

Stephen P. Berzon [COR NTC Retained] (see above)

HERBERT M. MEYER, on behalf of themselves and a class of those similary situated
Plaintiff - Appellee,

Scott A. Kronland [COR LD NTC Retained]
(see above)

Stacey Leyton, Attorney [COR LD NTC Dep State Aty Gen] (see above)

Peder J. Thoreen [COR LD NTC Retained] (see above)

Stephen P. Berzon [COR NTC Retained] (see above)

LESLIE GORDON, on behalf of themselves and a class of those similary situated
Plaintiff - Appellee,

Scott A. Kronland [COR LD NTC Retained] (see above)

Stacey Leyton, Attorney [COR LD NTC Dep State Aty Gen] (see above)

Peder J. Thoreen [COR LD NTC Retained] (see above)

Stephen P. Berzon [COR NTC Retained] (see above)

CHARLENE AYERS, on behalf of themselves and a class of those Scott A. Kronland

similary situated

[COR LD NTC Retained]

Plaintiff - Appellee,

(see above)

Stacey Leyton, Attorney [COR LD NTC Dep State Aty Gen] (see above)

Peder J. Thoreen [COR LD NTC Retained] (see above)

Stephen P. Berzon [COR NTC Retained] (see above)

WILLIE BEATRICE SHEPPARD, on behalf of themselves and a class of those similary situated
Plaintiff - Appellee,

Scott A. Kronland [COR LD NTC Retained] (see above)

Stacey Leyton, Attorney [COR LD NTC Dep State Aty Gen] (see above)

Peder J. Thoreen [COR LD NTC Retained] (see above)

Stephen P. Berzon [COR NTC Retained]

(see above)

ANDY MARTINEZ, on behalf of themselves and a class of those similary situated
Plaintiff - Appellee,

Scott A. Kronland [COR LD NTC Retained] (see above)

Stacey Leyton, Attorney [COR LD NTC Dep State Aty Gen] (see above)

Peder J. Thoreen [COR LD NTC Retained] (see above)

Stephen P. Berzon [COR NTC Retained] (see above)

SERVICE EMPLOYEES INTERNATIONAL UNION UNITED HEALTH CARE WORKERS WEST
Plaintiff - Appellee,

Scott A. Kronland [COR LD NTC Retained] (see above)

Plaintiff - Appellee,

(see above)

Stacey Leyton, Attorney [COR LD NTC Dep State Aty Gen] (see above)

Peder J. Thoreen [COR LD NTC Retained] (see above)

Stephen P. Berzon [COR NTC Retained] (see above)

SERVICE EMPLOYEES INTERNATIONAL UNION UNITED LONG-TERM CARE WORKERS
Plaintiff - Appellee,

Scott A. Kronland [COR LD NTC Retained] (see above)

Stacey Leyton, Attorney [COR LD NTC Dep State Aty Gen] (see above)

Peder J. Thoreen [COR LD NTC Retained] (see above)

Stephen P. Berzon [COR NTC Retained] (see above)

SERVICE EMPLOYEES INTERNATIONAL UNION LOCAL 521 Plaintiff - Appellee,

Scott A. Kronland [COR LD NTC Retained] (see above)

Stacey Leyton, Attorney [COR LD NTC Dep State Aty Gen] (see above)

Peder J. Thoreen [COR LD NTC Retained]
(see above)

Stephen P. Berzon [COR NTC Retained] (see above)

SERVICE EMPLOYEES INTERNATIONAL UNION CALIFORNIA STATE COUNCIL
Plaintiff - Appellee,

Scott A. Kronland [COR LD NTC Retained] (see above)

Stacey Leyton, Attorney [COR LD NTC Dep State Aty Gen] (see above)

Peder J. Thoreen [COR LD NTC Retained] (see above)

Stephen P. Berzon [COR NTC Retained] (see above)
v.

ARNOLD SCHWARZENEGGAR, Governor of the State of California
Defendant - Appellant,

Gregory David Brown, Esquire, Deputy Attorney General Direct: 415-703-5461 [COR LD NTC Government] AGCA - OFFICE OF THE CALIFORNIA ATTORNEY GENERAL

AGCA - OFFICE OF THE CALIFORNIA ATTORNEY GENERAL Suite 11000 455 Golden Gate Avenue San Francisco, CA 94102-7004

Susan Marie Carson, Deputy Assistant Attorney General [COR LD NTC Dep State Aty Gen] AGCA - OFFICE OF THE CALIFORNIA ATTORNEY GENERAL 455 Golden Gate Avenue San Francisco, CA 94102-7004

Michael A. Zwibelman, Deputy Attorney General [COR LD NTC Dep State Aty Gen] AGCA - OFFICE OF THE CALIFORNIA ATTORNEY GENERAL 455 Golden Gate Avenue San Francisco, CA 94102-7004

James M. Humes, Chief Deputy Attorney General Direct: 916-324-5435 [COR NTC Dep State Aty Gen] AGCA - OFFICE OF THE CALIFORNIA ATTORNEY GENERAL (SAC) Firm: 800-952-5225 P.O. Box 944255 Sacramento, CA 94244-2550

JOHN A. WAGNER, Director of the California Department of Social Gregory David Brown, Esquire, Deputy Attorney General

Services

Direct: 415-703-5461

Defendant - Appellant,

[COR LD NTC Government]

(see above)

Susan Marie Carson, Deputy Assistant Attorney General [COR LD NTC Dep State Aty Gen]

(see above)

James M. Humes, Chief Deputy Attorney General Direct: 916-324-5435 [COR NTC Dep State Aty Gen] (see above)

DAVID MAXWELL-JOLLY, Director of the California Department of Health Care Services
Defendant - Appellant,

Gregory David Brown, Esquire, Deputy Attorney General Direct: 415-703-5461 [COR LD NTC Government] (see above)

Susan Marie Carson, Deputy Assistant Attorney General [COR LD NTC Dep State Aty Gen] (see above)

Michael A. Zwibelman, Deputy Attorney General [COR LD NTC Dep State Aty Gen] (see above)

James M. Humes, Chief Deputy Attorney General Direct: 916-324-5435 [COR NTC Dep State Aty Gen] (see above)

JOHN CHIANG, California State Controller Defendant - Appellant,

Gregory David Brown, Esquire, Deputy Attorney General Direct: 415-703-5461 [COR LD NTC Government] (see above)

Susan Marie Carson, Deputy Assistant Attorney General [COR LD NTC Dep State Aty Gen] (see above)

Michael A. Zwibelman, Deputy Attorney General [COR LD NTC Dep State Aty Gen] (see above)

FRESNO COUNTY Defendant,

Timothy J. Buchanan, Esquire, Attorney Direct: 559-433-1300 [COR LD NTC Retained] McCormick Barstow, LLP 5 River Park Place East Fresno, CA 93720

Michael Gary Woods, Esquire, Attorney Direct: 559-433-1300 [LD NTC Retained] McCormick Barstow, LLP 5 River Park Place East Fresno, CA 93720

FRESNO COUNTY IN-HOME SUPPORTIVE SERVICES PUBLIC AUTHORITY
Defendant,

Timothy J. Buchanan, Esquire, Attorney Direct: 559-433-1300 [COR LD NTC Retained] (see above)

Michael Gary Woods, Esquire, Attorney Direct: 559-433-1300 [LD NTC Retained]
(see above)

LYDIA DOMINGUEZ, by and through her mother and next friend Lisa Brown; ALEX BROWN, by and through his mother and next friend Lisa Brown; DONNA BROWN, by and through her conservator and next friend Julie Weissman-Steinbaugh; CHLOE LIPTON, by and through her conservator and next friend Julie Weissman-Steinbaugh; HERBERT M. MEYER, on behalf of themselves and a class of those similary situated; LESLIE GORDON, on behalf of themselves and a class of those similary situated; CHARLENE AYERS, on behalf of themselves and a class of those similary situated; WILLIE BEATRICE SHEPPARD, on behalf of themselves and a class of those similary situated; ANDY MARTINEZ, on behalf of themselves and a class of those similary situated; SERVICE EMPLOYEES INTERNATIONAL UNION UNITED HEALTH CARE WORKERS WEST; SERVICE EMPLOYEES INTERNATIONAL UNION UNITED LONG-TERM CARE WORKERS; SERVICE EMPLOYEES INTERNATIONAL UNION LOCAL 521; SERVICE EMPLOYEES INTERNATIONAL UNION CALIFORNIA STATE COUNCIL,
Plaintiffs - Appellees,
v.
ARNOLD SCHWARZENEGGAR, Governor of the State of California; JOHN A. WAGNER, Director of the California Department of Social Services; DAVID MAXWELL-JOLLY, Director of the California Department of Health Care Services; JOHN CHIANG, California State Controller,
Defendants - Appellants,
and
FRESNO COUNTY; FRESNO COUNTY IN-HOME SUPPORTIVE SERVICES PUBLIC AUTHORITY,
Defendants.

06/30/2009

1

DOCKETED CAUSE AND ENTERED APPEARANCES OF COUNSEL. SEND CADS: Yes. The schedule

1 pg, 131.73 KB is set as follows: to be set. Preliminary Injunction Appeal. Circuit Rule 3-3. All filings to MOATT. CADS due

by Attorney Susan Marie Carson, Deputy Assistant Attorney General due on 6/30/09. [6974959] (RT)

06/30/2009

2

Filed (ECF) Appellants John Chiang, David Maxwell-Jolly, Arnold Schwarzenegger and John A. Wagner

368 pg, 16.89 MB EMERGENCY Motion to stay lower court action, Motion to expedite case. Date of service: 06/30/2009.

[6975493]--[COURT UPDATE: Attached PDF from 2 additional filings to this filing, motion and all exhibits

and declaration now attached to this filing. Entries [6975805] and [6975818] deleted; merged into this filing.

Resent NDA. 07/01/2009 by ASW] (SMC)

06/30/2009

3

COURT DELETED ENTRY. MERGED into [2] above. Original text: Filed (ECF) Appellants John Chiang, David Maxwell-Jolly, Arnold Schwarzenegger and John A. Wagner Supplemental Motion to stay lower court action, Motion to expedite case. Date of service: 06/30/2009. [6975805] [Date of Entry: 06/30/2009] (SMC) (SMC)

06/30/2009

4

COURT DELETED ENTRY. MERGED into [2] above. Original text: Filed (ECF) Appellants John Chiang, David Maxwell-Jolly, Arnold Schwarzenegger and John A. Wagner Supplemental Motion to stay lower court action, Motion to expedite case. Date of service: 06/30/2009. [6975818] [Date of Entry: 06/30/2009] (SMC) (SMC)

07/01/2009

5

2 pg, 29.68 KB

Filed order MOATT: (CP) The appeal filed June 29, 2009, is a preliminary injunction appeal. Accordingly, Ninth Circuit Rule 3-3 shall apply. If they have not already done so, within 7 calendar days of the filing date of this order, the parties shall make arrangements to obtain from the court reporter an official transcript of proceedings in the district court that will be included in the record on appeal. The briefing schedule is established as follows: the opening brief is due not later than July 27, 2009; the answering brief is due August 24, 2009, or 28 days after service of the opening brief, whichever is earlier; and the optional reply brief is due within 14 days of service of the answering brief. [6976718] (WL)

07/01/2009

7

Filed Appellants Civil Appeals Docketing Statement. Served on 06/29/2009. [6978769] (JFF)

19 pg, 983.65 KB

07/02/2009

6

2 pg, 26.16 KB

Filed order MEDIATION (MGS): The Court of Appeals’ records do not indicate that appellants have filed a Civil Appeals Docketing Statement in accordance with Circuit Rule 3-4. This may be the result of an oversight by counsel or a mistake in the processing by the district court or this court. Within fourteen (14) days of the filing of this order, appellants shall...Failure to comply with this order will result in dismissal pursuant to Ninth Cir. R. 42-1. If appellants have already filed the Civil Appeals Docketing Statement or file it in response to this order, appellants shall also serve a copy, with all attachments, on the Circuit Mediation Office by fax (fax: 415-355-8566). [6978557] (WL)

07/06/2009

8

4 pg, 38.22 KB

Filed (ECF) Appellees Charlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Mikesha Martinez, Herbert M. Meyer, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long-Term Care Workers and Willie Beatrice Sheppard Unopposed Motion for miscellaneous relief [Leave to Exceed Page Limitation]. Date of service: 07/06/2009. [6982348] (SL)

07/06/2009

9
55 pg, 189.59 KB

Filed (ECF) Appellees Charlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Mikesha Martinez, Herbert M. Meyer, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long-Term Care Workers and Willie Beatrice Sheppard response opposing motion (Motion (ECF Filing) ,Motion (ECF Filing) motion to expedite case,Motion (ECF Filing) motion to stay lower court action). Date of service: 07/06/2009. [6982366] (SL)

07/06/2009

10

Filed (ECF) Appellees Charlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon,

912 pg, 40.32 MB Chloe Lipton, Andy Martinez, Mikesha Martinez, Herbert M. Meyer, Service Employees International Union

California State Council, Service Employees International Union Local 521, Service Employees

International Union United Health Care Workers West, Service Employees International Union United

Long-Term Care Workers and Willie Beatrice Sheppard response opposing motion (Motion (ECF Filing)

,Motion (ECF Filing) motion to expedite case,Motion (ECF Filing) motion to stay lower court action). Date

of service: 07/06/2009. [6982375] (SL)

07/07/2009

11

Attorneys Stephen P. Berzon, Stephen P. Berzon, Stephen P. Berzon, Stephen P. Berzon, Stephen P. Berzon, Stephen P. Berzon, Stephen P. Berzon, Stephen P. Berzon, Stephen P. Berzon, Stephen P. Berzon, Stephen P. Berzon, Stephen P. Berzon, Stephen P. Berzon and Stephen P. Berzon in 09-16359 substituted by Attorneys Steven Paul Berzon, Steven Paul Berzon, Steven Paul Berzon, Steven Paul Berzon, Steven Paul Berzon, Steven Paul Berzon, Steven Paul Berzon, Steven Paul Berzon, Steven Paul Berzon, Steven Paul Berzon, Steven Paul Berzon, Steven Paul Berzon, Steven Paul Berzon and Steven Paul Berzon in 09-16359 [6982941] (MA)

07/07/2009

12

Added attorney Anne Arkush for Andy Martinez Herbert M. Meyer Service Employees International Union United Health Care Workers West Charlene Ayers Mikesha Martinez Service Employees International Union Local 521 Alex Brown Chloe Lipton Service Employees International Union United Long-Term Care Workers Leslie Gordon Lydia Dominguez Willie Beatrice Sheppard Donna Brown Service Employees International Union California State Council, in case 09-16359. [6983095] (MA)

07/07/2009

13

179 pg, 5.85 MB

Filed (ECF) Appellees Charlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Mikesha Martinez, Herbert M. Meyer, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long-Term Care Workers and Willie Beatrice Sheppard reply to response (Response to Motion (ECF Filing) ). Date of service: 07/07/2009. [6984208] (SL)

07/08/2009

15

Filed certificate of record on appeal. RT filed in DC 7/2/09 [6986321] (JFF)

1 pg, 43.59 KB

07/09/2009

14

Received copy of transcript designation and ordering form filed in DC. [6986303] (JFF)

1 pg, 68.54 KB

07/09/2009

16

46 pg, 1.09 MB

Filed (ECF) Appellants John Chiang, David Maxwell-Jolly, Arnold Schwarzenegger and John A. Wagner reply to response (Reply to Response to Motion (ECF Filing) , Response to Motion (ECF Filing) , Response to Motion (ECF Filing) ). Date of service: 07/09/2009. [6986597] (SMC)

07/09/2009

17

2 pg, 74.41 KB

Filed (ECF) Appellees Charlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Mikesha Martinez, Herbert M. Meyer, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long-Term Care Workers and Willie Beatrice Sheppard citation of supplemental authorities. Date of service: 07/09/2009. [6987080] (PJT)

07/10/2009

18

Filed (ECF) Appellants John Chiang, David Maxwell-Jolly, Arnold Schwarzenegger and John A. Wagner

35 pg, 912.59 KB Correspondence: Letter to Court dated July 10, 2009. Date of service: 07/10/2009 [6988359] (SMC)

07/13/2009

19

41 pg, 1.7 MB

Filed (ECF) Appellees Charlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Mikesha Martinez, Herbert M. Meyer, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long-Term Care Workers and Willie Beatrice Sheppard response opposing motion (Motion (ECF Filing) ,Motion (ECF Filing) motion to expedite case,Motion (ECF Filing) motion to stay lower court action). Date of service: 07/13/2009. [6989336] (SL)

07/13/2009

20
13 pg, 118.33 KB

Filed (ECF) Appellees Charlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Mikesha Martinez, Herbert M. Meyer, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long-Term Care Workers and Willie Beatrice Sheppard response opposing motion (Motion (ECF Filing) ,Motion (ECF Filing) motion to expedite case,Motion (ECF Filing) motion to stay lower court action). Date of service: 07/13/2009. [6990397] (SL)

07/14/2009

21

2 pg, 26.29 KB

Filed order (WILLIAM C. CANBY and SIDNEY R. THOMAS) Appellants’ emergency motion for a stay of the district court’s June 26, 2009 preliminary injunction pending appeal is denied. The court takes judicial notice of the district court’s July 13, 2009 amended preliminary injunction. If appellants wish to challenge the amended preliminary injunction, appellants must file a notice of appeal or an amended notice of appeal within the time prescribed by Federal Rule of Appellate Procedure 4(a). Appellants’ motion to expedite this appeal is granted in part. The briefing schedule established on July 1, 2009 shall remain in effect. If appellants file the opening brief before July 27, 2009, the remainder of the briefing schedule will be reset according to Ninth Circuit Rule 3-3(b). The Clerk shall calendar this case as soon as possible following the completion of briefing. [6991561] (KD)

07/17/2009

22

Filed (ECF) Appellants John Chiang, David Maxwell-Jolly, Arnold Schwarzenegger and John A. Wagner

7 pg, 37.01 KB Motion to extend time to file Opening brief until 08/21/2009. Date of service: 07/17/2009. [6996097] (SMC)

07/23/2009

23

Filed (ECF) notice of appearance of Michael A. Zwibelman for Appellants John Chiang, David Maxwell-

1 pg, 25.93 KB Jolly, Arnold Schwarzenegger and John A. Wagner. Date of service: 07/23/2009. [7001653] (MAZ)

07/23/2009

24

Added attorney Michael A. Zwibelman for John Chiang Arnold Schwarzenegger David Maxwell-Jolly. [7001791] (JFF)

07/23/2009

25

Filed (ECF) Appellants John Chiang, David Maxwell-Jolly, Arnold Schwarzenegger and John A. Wagner

32 pg, 128.64 KB Correspondence:. Date of service: 07/23/2009 [7001826] (SMC)

07/24/2009

26

2 pg, 29.39 KB

Filed order (STEPHEN R. REINHARDT, WILLIAM A. FLETCHER and MILAN D. SMITH, JR.) The court grants in part appellants’ unopposed motion for an extension of time to file the opening brief. The opening brief is now due 14 calendar days after the date of this order; the answering brief is due 28 calendar days after service of the opening brief; and the optional reply brief is due within 14 calendar days after service of the answering brief. See 9th Cir. R. 3-3(b). Any further request for extension of time will be strongly disfavored and will not be granted absent extraordinary circumstances. If appellants fail to file timely the opening brief, this appeal will be dismissed automatically by the Clerk for failure to prosecute. See 9th Cir. R. 42-1. The Clerk shall note on the docket that this preliminary injunction appeal is related to appeal Nos. 09-55365, 09-55532, and 09-55692. [7003693] (WL)

07/28/2009

27

Filed (ECF) Appellants David Maxwell-Jolly, Arnold Schwarzenegger and John A. Wagner

41 pg, 210.62 KB Correspondence: Notice of Second Amended Preliminary Injunction Appeal. Date of service: 07/28/2009

[7006873] (MAZ)

07/29/2009

28

2 pg, 25.77 KB

Filed order MEDIATION (LJE): Based on a review of the Civil Appeals Docketing Statement, this case is not selected for inclusion in the Mediation Program. The existing briefing schedule remains in effect. Counsel for any party interested in obtaining assistance from the court in pursuing settlement of the case on appeal or learning more about the Mediation Program is encouraged to contact the undersigned, by fax (415) 355-8566. The communication will be kept confidential, if requested, from the other parties in the case. Counsel are requested to send copies of this order to their clients. [7007559] (WL)

08/06/2009

29

Filed (ECF) notice of appearance of Gregory D. Brown for Appellants John Chiang, David Maxwell-Jolly,

2 pg, 35.05 KB Arnold Schwarzenegger and John A. Wagner. Date of service: 08/06/2009. [7019242] (GDB)

08/06/2009

30

Added attorney Gregory David Brown for John Chiang Arnold Schwarzenegger John A. Wagner David Maxwell-Jolly, in case 09-16359. [7019258] (MA)

08/07/2009

31

Submitted (ECF) Opening brief for review. Submitted by Appellants John Chiang, David Maxwell-Jolly,

52 pg, 125.25 KB Arnold Schwarzenegger and John A. Wagner. Date of service: 08/07/2009. [7020506] (GDB)

08/07/2009

32

1 pg, 16.48 KB

Filed (ECF) Appellants John Chiang, David Maxwell-Jolly, Arnold Schwarzenegger and John A. Wagner Correspondence: letter to clerk dated 8-7-09 re Appellants' Excerpts of Record. Date of service: 08/07/2009 [7020517] (GDB)

08/12/2009

33

3 pg, 32.53 KB

Filed clerk order: Opening Brief [31] filed by John Chiang, Arnold Schwarzenegger, David Maxwell-Jolly and John A. Wagner. Within 5 working days of the filing of this order, filer is ordered to file 10 copies of the brief in paper format, with a Blue cover, accompanied by certification, attached to the end of each copy of the brief, that the brief is identical to the version submitted electronically. [7025298] (GLS)

08/14/2009

34

Received 10 paper copies of Opening brief [31] filed by John Chiang, Arnold Schwarzenegger, David Maxwell-Jolly and John A. Wagner in 09-16359. One copy to Case Files, the remainder to Records. [7028886] (SD)

08/20/2009

35

3 pg, 20.5 KB

Filed (ECF) Errata to Opening Brief ([31] Brief Submitted for Review (ECF Filing) ). Filed by Appellants John Chiang, David Maxwell-Jolly, Arnold Schwarzenegger and John A. Wagner. Date of service: 08/20/2009. [7035438] (GDB)

08/20/2009

36

Filed Appellants John Chiang, David Maxwell-Jolly, Arnold Schwarzenegger and John A. Wagner excerpts of record in 4 volumes. (Index Only) [7043415]--[Edited 12/03/2009 by BY] (FT)

08/20/2009

49

Filed Appellants John Chiang, David Maxwell-Jolly, Arnold Schwarzenegger and John A. Wagner excerpts of record in 4 volumes. [7150142] (PANEL) (FT)

09/04/2009

37

Filed Appellees Mikesha Martinez, Herbert M. Meyer, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long-Term Care Workers and Willie Beatrice Sheppard supplemental excerpts of record on appeal in 2 volumes. [7053194] (FT)

09/04/2009

38
69 pg, 219.45 KB

Submitted (ECF) Answering brief for review. Submitted by Appellees Charlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Mikesha Martinez, Herbert M. Meyer, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long-Term Care Workers and Willie Beatrice Sheppard. Date of service: 09/04/2009. [7053252]--[COURT UPDATE: Changed type of brief. 09/08/2009 by ASW] (SL)

09/04/2009

40

Filed Appellees' supplemental excerpts of record on appeal in 2 volumes. [7053660] (LA)

09/08/2009

39

1 pg, 28.33 KB

Filed clerk order: Answering Brief [38] filed by Appellees. Within 5 working days of the filing of this order, filer is ordered to file 10 copies of the brief in paper format, with a Red cover, accompanied by certification, attached to the end of each copy of the brief, that the brief is identical to the version submitted

electronically. [7053642] (LA)

09/10/2009

41

Received 10 paper copies of Answering brief [38] filed by Appellees in 09-16359. One copy to Case Files, the remainder to Records. [7058409] (SD)

09/18/2009

42

Submitted (ECF) Reply brief for review. Submitted by Appellants John Chiang, David Maxwell-Jolly, Arnold

26 pg, 88.68 KB Schwarzenegger and John A. Wagner. Date of service: 09/18/2009. [7067399] (SMC)

09/18/2009

43

1 pg, 28.7 KB

Filed clerk order: Reply Brief [42] filed by John Chiang, Arnold Schwarzenegger, David Maxwell-Jolly and John A. Wagner. Within 5 working days of the filing of this order, filer is ordered to file 10 copies of the brief in paper format, with a Grey cover, accompanied by certification, attached to the end of each copy of the brief, that the brief is identical to the version submitted electronically. [7067446] (LA)

09/21/2009

45

Received 10 paper copies of Reply brief [42] filed by John Chiang, Arnold Schwarzenegger, David Maxwell-Jolly and John A. Wagner in 09-16359. (Sent to panel) One copy to Case Files, the remainder to Records. [7070227] (SD)

11/19/2009

46

4 pg, 23.38 KB

Filed (ECF) Appellants John Chiang, David Maxwell-Jolly, Arnold Schwarzenegger and John A. Wagner Motion for miscellaneous relief [REQUEST TO SET ORAL ARGUMENT (9TH CIR. RULES 3-3 & 34-3)]. Date of service: 11/19/2009. [7136559] (SMC)

12/02/2009

47

UPDATED CASE CALENDARED: 01/19/2010 9:30 AM Pasadena, CA Courtroom 1 [7149332] [09-55692, 09-55365, 09-16359, 09-55532] (AW)

12/02/2009

48

3 pg, 27.51 KB

Filed clerk order (Deputy Clerk:WL): The State Defendants’ request to set oral argument in these cases pursuant to Ninth Circuit Rule 34-3 is GRANTED. The parties shall appear for oral argument on Tuesday, January 19, 2010, at 9:30 a.m. in Pasadena, California. Each side shall have fifteen minutes for argument in each case. [7149348] [09-16359, 09-55365, 09-55532, 09-55692] (WL)

12/04/2009

50

Notice of Oral Argument on JANUARY Calendar. Please return ACKNOWLEDGMENT OF HEARING

7 pg, 401.44 KB NOTICE form to: PASADENA Office. Attention: The Notice of Docket Activity may not list your case

number. Please open attached documents to view details about your case. [7152667] (LN)

12/29/2009

51

30 pg, 1.58 MB

Filed (ECF) Appellees Charlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Mikesha Martinez, Herbert M. Meyer, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West and Service Employees International Union United Long-Term Care Workers Correspondence: Inform the Court that the title of the case has changed.. Date of service: 12/29/2009 [7178568] (PJT)

01/14/2010

52

Filed (ECF) notice of appearance of James M. Humes for Appellants David Maxwell-Jolly, Arnold

1 pg, 332.55 KB Schwarzenegger and John A. Wagner. Date of service: 01/14/2010. [7195893] (JMH)

01/14/2010

53

Added attorney James M. Humes for Arnold Schwarzenegger John A. Wagner David Maxwell-Jolly [7195920] (JFF)

01/14/2010

54

Filed (ECF) Appellants David Maxwell-Jolly, Arnold Schwarzenegger and John A. Wagner Motion for

34 pg, 954.2 KB miscellaneous relief [Motion to Disqualify Pursuant to 28 U.S.C. s 455(a)]. Date of service: 01/14/2010.

[7195962] (JMH)

01/15/2010

55

6 pg, 52.96 KB

01/15/2010

56

7 pg, 55.01 KB

01/19/2010

57

02/09/2010

58

4 pg, 81.64 KB

02/23/2010

59

Filed order (STEPHEN R. REINHARDT, WILLIAM A. FLETCHER and MILAN D. SMITH, JR.)...The motion to disqualify pursuant to 28 U.S.C. § 455(a) is DENIED. [7197125] [09-16359, 09-55365, 09-55532, 0955692] (KKW)
Filed order (STEPHEN R. REINHARDT, WILLIAM A. FLETCHER and MILAN D. SMITH, JR.) ...The motion to disqualify pursuant to 28 U.S.C. § 455(a) is DENIED. [7197514] [09-16359, 09-55365, 09-55532, 09-55692] (KKW)
ARGUED AND SUBMITTED TO STEPHEN R. REINHARDT, WILLIAM A. FLETCHER and MILAN D. SMITH, JR.. [7199057] (LN)
Filed (ECF) Appellees Charlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long-Term Care Workers, Willie Beatrice Sheppard and Sia Chue Yang Correspondence: Title of Case. Date of service: 02/09/2010 [7224829] (PJT)
Terminated Appellee Sia Chue Yang in 09-16359 [7241996] (HH)

03/03/2010

60

FILED OPINION (STEPHEN R. REINHARDT, WILLIAM A. FLETCHER and MILAN D. SMITH, JR.)

26 pg, 478.53 KB AFFIRMED. Judge: MDS Authoring. FILED AND ENTERED JUDGMENT. [7250565] (RP)

03/09/2010

61

3 pg, 119.68 KB

Filed (ECF) Appellees Charlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long-Term Care Workers and Willie Beatrice Sheppard Correspondence: Letter to West Publishing correcting typographical errors in March 3, 2010 Opinion.. Date of service: 03/09/2010 [7258888] (SL)

03/17/2010

62

7 pg, 932.37 KB

Filed (ECF) Appellees Charlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long-Term Care Workers and Willie Beatrice Sheppard bill of costs (Form 10) in the amount of 440.50 USD. Date of service: 03/17/2010 [7269171] (SL)

03/24/2010

63

MANDATE ISSUED.(SR, WAF and MDS) Cost awarded to APPELLEE in the amount of $316.90.

2 pg, 84.53 KB [7277067] (TB)

03/26/2010

64

Received notice from the Supreme Court: petition for certiorari filed on 03/24/2010. Supreme Court

1 pg, 27.53 KB Number 09-1158. [7281772] [09-55532, 09-55365, 09-55692, 09-16359] (SW)

01/21/2011

65

1 pg, 49 KB

Received notice from the Supreme Court. Petition for certiorari GRANTED on 01/18/2011. Supreme Court Number 09-1158. [7620366] [09-55532, 09-55365, 09-55692, 09-16359] (SW)

02/28/2012

66

65 pg, 1.28 MB

Filed (ECF) Appellees Charlene Ayers, Alex Brown, Donna Brown, Lydia Dominguez, Leslie Gordon, Chloe Lipton, Andy Martinez, Herbert M. Meyer, Service Employees International Union California State Council, Service Employees International Union Local 521, Service Employees International Union United Health Care Workers West, Service Employees International Union United Long-Term Care Workers and Willie Beatrice Sheppard citation of supplemental authorities. Date of service: 02/28/2012. [8084086] (SL)

03/26/2012

67
20 pg, 145.04 KB

Received copy of Supreme Court opinion dated 02/22/2012. The judgment or mandate of this Court will not issue for at least 25-days pursuant to Rule 45. Should a petition for rehearing be filed timely, the judgment or mandate will be further stayed pending this Court's action on the petition for rehearing. Supreme Court No: 09-1158. [8117290] [09-55532, 09-55365, 09-55692, 09-16359] (RR)

03/26/2012

68

7 pg, 225.7 KB

Received Supreme Court 02/22/2012 certified judgment. On Consideration Whereof, it is ordered and adjudged by this Court that the judgments of the above court are vacated with costs, and the cases are remanded to the United States Court Of Appeals for the Ninth Circuit thereby permitting parties to argue the matter before that Circuit in the first instance. It Is Further Ordered that the petitioners Toby Douglas, Director, California Department of Health Care Services, et al. recovers from Independent Living Center of Southern California, et al. California Pharmacists Association, et al.; Califonia Hospital Association, et al.; Lydia Dominguez, By and Through Her Mother and Next Friend Lisa Brown, et al.; and Santa Rosa Memorial Hospital, et al. Four Thousand Seven Hundred Sixty-three Dollars and Sixty-six Cents ($4,763.66) for costs herein expended. Supreme Court case number: 09-958, 09-1158, and 10-283. [8117387] [08-56422, 08-56554, 08-57016, 09-55532, 09-55365, 09-55692, 09-16359, 09-17633] (RR)

05/30/2012

69

Filed (ECF) Appellants John Chiang, David Maxwell-Jolly, Arnold Schwarzeneggar and John A. Wagner

2 pg, 458.12 KB Joint Motion to refer case to mediation. Date of service: 05/30/2012. [8194811] (SMC)

05/30/2012

70

Filed order (STEPHEN R. REINHARDT, WILLIAM A. FLETCHER and MILAN D. SMITH, JR.) The parties’

1 pg, 23.58 KB Joint Motion to Refer Cases to Mediation [D.E. 69] is hereby GRANTED. SO ORDERED. [8195975] (WL)

03/26/2013

71

Filed (ECF) Appellants John Chiang, David Maxwell-Jolly, Arnold Schwarzeneggar and John A. Wagner

5 pg, 912.22 KB Joint Motion to stay proceedings pending settlement. Date of service: 03/26/2013. [8564649] (SMC)

04/05/2013

72

2 pg, 28.36 KB

Filed order (STEPHEN R. REINHARDT, WILLIAM A. FLETCHER and MILAN D. SMITH, JR.)The parties’ joint motion to stay this appeal pending approval of a class action settlement (Docket No. 71) is GRANTED. The parties are directed to file a status report with this court no later than 120 days from the date of this order. SO ORDERED. r [8579835] (KKW)

06/28/2013

73

Filed (ECF) Appellants John Chiang, David Maxwell-Jolly, Arnold Schwarzeneggar and John A. Wagner

5 pg, 109.95 KB Joint Motion to dismiss case voluntarily pursuant to FRAP 42(b). Date of service: 06/28/2013. [8686025]

(GDB)

07/01/2013

74

Terminated Anne Arkush for Willie Beatrice Sheppard, Service Employees International Union United Long-Term Care Workers, Service Employees International Union United Health Care Workers West, Service Employees International Union Local 521, Service Employees International Union California State Council, Herbert M. Meyer, Andy Martinez, Chloe Lipton, Leslie Gordon, Lydia Dominguez, Donna Brown, Alex Brown and Charlene Ayers in 09-16359 (Csl no longer with firm) [8686793] (ASW)

07/08/2013

75

Order filed (STEPHEN R. REINHARDT, WILLIAM A. FLETCHER and MILAN D. SMITH, JR.) The Joint

2 pg, 36.36 KB Motion to Dismiss Appeal as Moot, filed by the parties on June 28, 2013, is GRANTED. Fed. R. App. P.

42(b). Each party agrees to bear its own costs and fees. The copy of this order sent to the district court shall constitute the mandate of this Court. [8694416] (WL)

 
 No. 09-1158 Title:
Docketed: Lower Ct:
Case Nos.: Decision Date:
Questions Presented

Toby Douglas, Director, California Department of Health Care Services, Petitioner
v.
California Pharmacists Association, et al.
March 24, 2010 United States Court of Appeals for the Ninth Circuit (09-55532) March 3, 2010 Rule 12.4

~~~Date~~~ ~~~~~~~Proceedings and Orders~~~~~~~~~~~~~~~~~~~~~
Mar 24 2010 Petition for a writ of certiorari filed. (Response due April 23, 2010)
Apr 9 2010 Order extending time to file response to petition to and including May 24, 2010, for all respondents.
May 18 2010 Order further extending time to file response to petition to and including May 27, 2010.
May 24 2010 Brief of respondents Independent Living Center of Southern California, Inc., et al. in opposition filed.
May 27 2010 Brief of respondents Lydia Dominguez, et al in opposition filed.
May 27 2010 Brief of respondents California Pharmacists Association, et al. in opposition filed.
Jun 7 2010 Reply of petitioners David Maxwell-Jolly, Director, California Department of Health Care Services, et al. filed. (Distributed)
Jun 8 2010 DISTRIBUTED for Conference of June 24, 2010.
Dec 15 2010 DISTRIBUTED for Conference of January 7, 2011.
Dec 16 2010 Joint supplemental brief of respondents California Pharmacists Association, et al. filed. (Distributed)
Dec 20 2010 Supplemental brief of petitioners David Maxwell-Jolly, Director, California Department of Health Care Services, et al. filed. (Distributed)
Jan 10 2011 DISTRIBUTED for Conference of January 14, 2011.
Jan 18 2011 Petition GRANTED limited to Question 1 presented by the petitions. The petitions for certiorari in No. 09-958 and No. 10-283 are granted limited to Question 1 presented by the petitions. The cases are consolidated and a total of one hour is allotted for oral argument. VIDED.

Feb 17 2011 The time to file the joint appendix and petitioners' briefs on the merits is extended to and including April 14, 2011. VIDED.
Feb 17 2011 The time to file respondents' briefs on the merits is extended to and including June 24, 2011. VIDED.
Apr 7 2011 The time to file the joint appendix and petitioners' briefs on the merits is further extended to and including May 19, 2011. VIDED.
Apr 7 2011 The time to file respondents' briefs on the merits is further extended to and including July 29, 2011. VIDED.
May 19 2011 Joint appendix filed. VIDED. (Statement of costs filed) May 19 2011 Brief of petitioner Toby Douglas, Director, California Department of Health Care
Services filed. VIDED. May 25 2011 Brief amici curiae of National Governors Association, et al. filed. VIDED. May 26 2011 Brief amicus curiae of the United States filed. VIDED. May 26 2011 Brief amicus curiae of APA Watch filed. VIDED. May 26 2011 Brief amici curiae of Michigan and 30 Other States filed. VIDED. Jul 15 2011 CIRCULATED. Jul 19 2011 SET FOR ARGUMENT ON Monday, October 3, 2011. Jul 29 2011 Brief of respondents California Pharmacists, et al. filed. VIDED. (Distributed) Jul 29 2011 Brief of respondents Santa Rosa Memorial Hospital, et al. filed. VIDED.
(Distributed) Jul 29 2011 Brief of respondents Dominguez, et al. filed. VIDED. (Distributed) Jul 29 2011 Brief of respondents Independent Living Center of Southern California, Inc., et
al. filed. VIDED. (Distributed) Aug 4 2011 Brief amici curiae of National Association of Chain Drug Stores, et al. filed.
VIDED. (Distributed) Aug 5 2011 Brief amicus curiae of Chamber of Commerce of the United States of America
filed. VIDED. (Distributed) Aug 5 2011 Motion of the Solicitor General for leave to participate in oral argument as
amicus curiae and for divided argument filed. VIDED. Aug 5 2011 Brief amici curiae of Members of Congress filed. VIDED. (Distributed) Aug 5 2011 Brief amici curiae of American Medical Association, et al. filed. VIDED.
(Distributed) Aug 5 2011 Brief amici curiae of American Civil Liberties Union, et al. filed. VIDED.
(Distributed) Aug 5 2011 Brief amici curiae of American Health Care Association, et al. filed. VIDED.
(Distributed) Aug 5 2011 Brief amici curiae of Former HHS Officials filed. VIDED. (Distributed) Sep 1 2011 Reply of petitioners Toby Douglas, Director, California Department of Health
Care Services filed. VIDED. (Distributed) Sep 23 2011 Record received from U.S.C.A. for 9th Circuit. (1 envelope) Sep 23 2011 Record from U.S.D.C. for Central District of California is electronic. Sep 27 2011 Motion of the Solicitor General for leave to participate in oral argument as
amicus curiae and for divided argument GRANTED. VIDED. Oct 3 2011 Argued. For petitioner: Karin S. Schwartz, Supervising Deputy Attorney

General, San Francisco, Cal.; and Edwin S. Kneedler, Deputy Solicitor General, Department of Justice, Washington, D. C. (for United States, as amicus curiae.) For respondents: Carter G. Phillips, Washington, D. C.)

Oct 28 2011 Letter with attachments received from the Solicitor General. VIDED. (Distributed)

Nov 4 2011

The parties and the Solicitor General are directed to file supplemental briefs addressing the following question: "What should be the effect, if any, of the developments discussed in the letter submitted by the Solicitor General on October 28, 2011, on the proper disposition of this case?" The briefs, in letter format, limited to 10 pages, are to be filed simultaneously with the Clerk and served upon opposing counsel on or before 2 p.m., Friday, November 18, 2011. VIDED.

Nov 18 2011 Supplemental brief of petitioner Toby Douglas, Director, California Department of Health Care Services filed. VIDED. (Distributed)

Nov 18 2011 Supplemental brief of respondents Independent Living Center of Southern California, Inc., et al. filed. VIDED. (Distributed)

Nov 18 2011 Supplemental brief of United States filed. VIDED. (Distributed)

Nov 18 2011 Supplemental brief of respondents' counsel Carter Phillips, Deanne E. Maynard, and Stephen P. Berzon filed. VIDED. (Distributed)

Jan 17 2012 Letter, dated January 17,2012, received from Attorney General of California informing the Court of recent preliminary injunctions. (Distributed) VIDED.

Jan 20 2012 Letter, dated January 20,2012, received from counsel for the respondents in response to the State of California's letter of January 17, 2012. (Distributed) VIDED.

Feb 22 2012 Judgment VACATED and case REMANDED. Breyer, J., delivered the opinion of the Court, in which Kennedy, Ginsburg, Sotomayor, and Kagan, JJ., joined. Roberts, C. J., filed a dissenting opinion, in which Scalia, Thomas, and Alito, JJ., joined.

Mar 26 2012 JUDGMENT ISSUED.

~~Name~~~~~~~~~~~~~~~~~~~~~ ~~~~~~~Address~~~~~~~~~~~~~~~~~~ ~~Phone~~~

Attorneys for Petitioner:

Karin S. Schwartz

Supervising Deputy Attorney General

(415) 7031382

455 Golden Gate Avenue, Suite 11000

San Francisco, CA 94102-7004

Karin.Schwartz@doj.ca.gov

Party name: Toby Douglas, Director, California Department of Health Care Services

Attorneys for Respondents:

Stephen P. Berzon

Altshuler Berzon LLP

(415) 4217151

Counsel of Record

177 Post Street, Suite 300

San Francisco, CA 94108

sberzon@altshulerberzon.com

Party name: Dominguez, et al.

Lynn S Carman

Medicaid Defense Fund

Counsel of Record

8 Waterbury Lane

Novato, CA 94949

lynnscarman@hotmail.com

Party name: Independent Living Center of Southern California, Inc., et al.

Deanne E. Maynard

Morrison & Foerster LLP

Counsel of Record

2000 Pennsylvania Avenue, N.W.

Washington, DC 20006

DMaynard@mofo.com

Party name: California Pharmacists, et al.

Carter G. Phillips

Sidley Austin LLP

Counsel of Record

1501 K Street, N.W.

Washington, DC 20005

cphillips@sidley.com

Party name: Santa Rosa Memorial Hospital, et al.

Craig J. Cannizzo

Hooper, Lundy & Bookman, Inc.

575 Market Street Suite 2300 San Francisco, CA 94105 ccannizzo@health-law.com Party name: California Pharmacists Association

Stacey M. Leyton

Altshuler Berzon LLP

Party name: Lydia Dominguez, et al Other:

177 Post Street, Suite 300 San Francisco, CA 94108 sleyton@altshulerberzon.com

Frederick R. Ball

Duane Morris LLP

190 South LaSalle Street, Suite 3700 Chicago, IL 60603

(415) 9274023
(202) 8878740
(202) 7368000
(415) 8758511
(415)-4217151
(312)-4996720

FRBall@duanemorris.com Party name: National Association of Chain Drug Stores, et al.

Louis W. Bullock

Bullock Bullock & Blakemore

110 W. Seventh Street, Suite 707 Tulsa, OK 74119 lbullock@bullock-blakemore.com Party name: American Medical Association, et al.

(918) 5842001

John J. Bursch

Michigan Solicitor General

Michigan Department of Attorney General P.O. Box 30212 Lansing, MI 48909 BurschJ@michigan.gov Party name: Michigan and 30 Other States

(517) 3731124

Douglas Hallward-Driemeier

Ropes & Gray LLP

(202) 5084600

One Metro Center

700 12th Street, NW, Suite 900

Washington, DC 20005

Douglas.Hallward-Driemeier@ropesgray.com

Party name: American Health Care Association, et al.

Lawrence J. Joseph Party name: APA Watch

1250 Connecticut Ave., NW
Suite 200 Washington, DC 20036 ljoseph@larryjoseph.com

(202) 3559452

Edwin S. Kneedler

Deputy Solicitor General

(202) 5142217

United States Department of Justice

950 Pennsylvania Avenue, N.W.

Washington, DC 20530-0001

Party name: Toby Douglas, Director, California Department of Health Care Services v. California Pharmacists Association, et al.

Michael W. McConnell

Kirkland & Ellis LLP

655 Fifteenth Street, N.W. Washington, DC 20005 michael.mcconnell@kirkland.com Party name: National Governors Association, et al.

(202) 8795000

Paul M. Smith Party name: Members of Congress

Jenner & Block LLP
1099 New York Avenue, N.W., Suite 900 Washington, DC 20001 psmith@jenner.com

(202) 6396000

Alan E. Untereiner

Robbins, Russell, Englert, Orseck, Untereiner & Sauber LLP

1801 K Street, N.W., Suite 411

Washington, DC 20006

auntereiner@robbinsrussell.com

Party name: Chamber of Commerce of the United States of America

(202) 7754500

Donald B. Verrilli Jr. Party name: the United States

Solicitor General
United States Department of Justice 950 Pennsylvania Avenue, N.W. Washington, DC 20530-0001 SupremeCtBriefs@USDOJ.gov

(202) 5142217

Stephen I. Vladeck Party name: Former HHS Officials

4801 Massachusetts Ave., N.W.
Washington, DC 20016 svladeck@wcl.american.edu

(202)-2744241

Paul R.Q. Wolfson

Wilmer Cutler Pickering Hale and Dorr LLP

1875 Pennsylvania Avenue, N.W. Washington, DC 20006 paul.wolfson@wilmerhale.com Party name: American Civil Liberties Union, et al.

(202) 6636390