Maureen K. v. Tuschka
155 Cal. Rptr. 3d 620
Cal. Ct. App.2013Background
- Maureen K. is HIV-positive and needed umbilical hernia repair; surgery was canceled in pre-op because anesthesiologist feared for safety after learning HIV status and ARV non-use.
- Plaintiff alleged disability discrimination under Unruh Civil Rights Act and CMIA; trial court granted summary adjudication on CMIA and jury found no disability under Unruh Act.
- Court held HIV is a disability as a matter of law under Unruh Act; also found respondent regarded her as disabled.
- There was undisputed evidence respondent’s actions were based on HIV status and safety concerns, not purely medical risk.
- Trial court erred in submitting disability issue to the jury; the jury instruction mischaracterized disability, and reversal of the Unruh Act judgment was required.
- CMIA claim resolved in respondent’s favor via summary adjudication since no identifying medical information was disclosed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether HIV is a disability under Unruh Act | Maureen K. is disabled by HIV per FEHA definition | Disability status requires case-by-case determination | HIV is a disability as a matter of law; the issue should not have been jury-tried. |
| Whether respondent’s conduct constitutes ‘regarded as’ disabled | Respondent treated her as disabled due to HIV status | Concern for safety justified cancellation | Appellant qualified as disabled under Gov. Code § 12926(l)(5) as regarded as disabled. |
| Whether CMIA claim survived summary adjudication | Disclosure of HIV status in pre-op room violated CMIA | No identifying information disclosed | CMIA claim affirmed for summary adjudication; no triable fact presented. |
Key Cases Cited
- Raytheon Co. v. Fair Employment & Housing Comm., 212 Cal.App.3d 1242 (Cal. Ct. App. 1989) ( HIV described as progressive immune disorder; supports disability concept under FEHA/Unruh.)
- Prilliman v. United Air Lines, Inc., 53 Cal.App.4th 935 (Cal. Ct. App. 1997) ( AIDS recognized as physical handicap under FEHA.)
- Scotch v. Art Institute of California -Orange County, Inc., 173 Cal.App.4th 986 (Cal. Ct. App. 2009) ( HIV/AIDS disability under FEHA.)
- Bragdon v. Abbott, 524 U.S. 624 (Sup. Ct. 1998) ( HIV a physical impairment under ADA from infection moment.)
- Gelfo v. Lockheed Martin Corp., 140 Cal.App.4th 34 (Cal. Ct. App. 2006) ( supports no-waiver on instructional error and disability concepts.)
- Soule v. General Motors Corp., 8 Cal.4th 548 (Cal. 1994) ( standard for prejudice in instructional error; impact on verdict.)