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John Doe SC109466@gmail.com 8721 Santa Monica Blvd. no. 503 Los Angeles, CA 90069 Telephone: (424) 249-9363 Plaintiff in pro per

Superior Court of the State of California County of Los Angeles – West District John Doe, Plaintiff, vs. Carolyn Costin, et al., Case no. SC109466 Plaintiff’s Motion for Judgment on the Pleadings Assigned to the Hon. John H. Reid, Dept. WEF Hearing Date: March 20, 2012 Defendants. Hearing Time: 8:30 a.m. Hearing Dept.: WEF, 1725 Main Street, 90401

To Defendants and All Interested Parties, please take notice that at the above date and time, or as soon thereafter as the matter may be heard in the above department, Plaintiff John Doe (“Doe”) will move, and does move, pursuant to Cal. Code Civ. Proc. (“CCP”) § 438, for judgment on the pleadings in favor of Doe as to the Defendants’ entire answer in this matter (the “Answer”). This motion is made on the ground that the Answer does not state facts sufficient to constitute a defense. The motion will be based upon this notice, the attached memorandum of points and authorities, such facts which the Court may take judicial notice of, the files and records in this action, and any further evidence and argument that the Court may receive at or before the hearing.

Dated: February 22, 2012 .

__________________________________ John Doe, Plaintiff in pro per

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MEMORANDUM OF POINTS AND AUTHORITIES I. STATEMENT OF FACTS
A. Plaintiff Seeks Help; Defendants Don’t Take Men In the summer of 2008, Plaintiff John Doe (“Doe”)1, an adult male living and working in the western part of Los Angeles County, sought help for his Anorexia Nervosa eating disorder. Due to the prominence of Defendant Carolyn Costin (“Costin”) in the E.D. treatment community, and the reputation of Costin’s Monte Nido Residential Center, Inc. (“Monte Nido”) and Monte Nido Lake Vista, LLC (“Vista”) facilities (collectively, “Defendants”), Doe began working with Keesha Broome (“Broome”), then an intern working directly under the supervision of Costin, with whom Broome also collaborated on at least one book. (Broome is now the Assistant Clinical Director of Monte Nido.) Doe met with Broome for therapy sessions at the Defendants’ administrative offices on Sea Vista Drive. Doe’s condition was severe enough to require residential treatment, a fact acknowledged by Broome in written communication between her and Doe in the fall of 2008. (Complaint in this action filed September 2, 2010 (“Compl.”), ¶ 40.) On September 19, 2008, Broome wrote to Doe: “If we took men I would 100% recommend our program.” (Id., ¶ 41.) When Doe protested, citing the Unruh Civil Rights Act, Broome wrote back: “Carolyn had to choose. She chose to serve the female demographic because it is more affected by eating disorders. Unfair, but true.” (Id.) Instead of receiving care at Monte Nido or Monte Nido Vista, Doe contacted the Castlewood Treatment Center in Ballwin, Missouri (“Castlewood”), a ten-bed residential facility that does not discriminate against men. While waiting for a bed to open at Castlewood, Doe participated in an Intensive Outpatient Program (“IOP”) for eating disorders at A New Journey in Santa Monica, California, part of an Arizona-based treatment continuum that, likewise, does not discriminate on sex. Doe was a residential client at Castlewood for approximately two months. (Id., ¶¶ 42-45.) For several months after returning to California, Doe was a Partial Hospitalization Program (“PHP”) client of the Defendants’ closely affiliated Eating Disorder Center of California (“EDCC”)2,
1

Doe brought this action under a fictitious name to protect himself from possible social stigma, harassment, injury, ridicule, and/or personal embarrassment; see, e.g., Doe v. Lincoln Unified School Dist., 187 Cal.App.4th 1286 (3rd Dist., 2010); Doe v. Superior Court, 194 Cal.App.4th 750 (2nd Dist., 2011). Defendant Costin is the Executive Director of the EDCC, the Monte Nido and Vista defendants, and the affiliated Rain Rock facility in Oregon; female EDCC clients freely transition to and from Monte Nido, etc., as needed. (Compl. ¶ 21.)

2

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a ‘day treatment’ provider. When Doe again required a higher level of care, EDCC could only refer him to inpatient hospital programs, lacking local residential treatment options for men. (Id., ¶¶ 46-48.) B. The Defendants

Monte Nido and Vista are behavioral health care facilities accredited by the Joint Commission (Compl., ¶ 17), and are residential programs providing services that include “individual, group, and family therapy … Psychiatric evaluation and treatment [and] medical monitoring …” Monte Nido provides residential treatment for up to six clients at a time (Compl. ¶ 16), while Vista was recently expanded into a ten bed residential facility. (Id.) All client beds at both Monte Nido and Vista are semi-private, and each room has its own private bath. (Id., ¶ 22.) The Monte Nido and Vista facilities were single-family homes before they became residential treatment centers. Residential treatment facilities, particularly smaller, home-like facilities like Monte Nido and Vista, offer significant therapeutic advantages not possible in larger residential programs or in inpatient hospital settings, and are much more likely to be covered, and covered for a longer period of time, by health insurance. (Id., ¶¶ 34-37.) Monte Nido and Vista charge at least $1,325 per day. (Id., ¶ 38.) It is not in dispute that Monte Nido and Vista have not, and still to this day do not, accept male clients. (Id., ¶ 54.) Defendant Carolyn Costin, M.A., M.Ed., M.F.T., is and/or has been a therapist, author, and lecturer; she has been a specialist in the field of eating disorders for more than thirty years. She has held positions such as coeditor of Eating Disorders, the Journal of Treatment and Prevention and trustee of the National Eating Disorder Board, and has written several books on eating disorders, including several revisions of the Eating Disorder Sourcebook. Costin is the owner and director of Monte Nido and all if its affiliates, including Vista. Costin made the decision to exclude men from Monte Nido and Vista. Although, as Costin notes, “most of the [eating disorder treatment] programs in the country . . . treat females only,” (Compl. ¶ 3), that situation is changing. C. Non-Discriminating Treatment Providers

Plaintiff has identified several settings, many the same size and general configuration as Defendants Monte Nido and Vista, that do not discriminate against men. (Id., ¶ 30.) This includes, inter alia:
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(a) Castlewood, a ten bed residential program in a converted single-family home, known for
working with survivors of trauma with comorbid eating disorders (Id., ¶ 30(a));

(b) The Rosewood facilities, in Arizona, which provide “a full-continuum of care” (including
residential treatment) to “male and female adults and adolescents with anorexia nervosa, bulimia nervosa, binge eating disorder, and other related issues,” including accommodating both men and women at the “quaint five bedroom, three bathroom” Tempe House transitional living program, and treats comorbid trauma alongside eating disorders (Id., ¶ 30(h));

(c) The Anna Westin House in Minnesota, a 16-bed “facility for residential eating disorders
treatment” that “serve[s] females and males with eating disorders,” that “new residents after [taking] into consideration the current population” (discovered after the Complaint was filed);

(d) River Oaks Hospital in New Orleans, Louisiana, which treats both men and women in its
New Orleans Institute trauma program (which includes an eating disorder “track” for trauma survivors who also require eating disorder treatment), and treats men and women, adolescent and adult alike, in its Eating Disorders Treatment Center (Id., ¶ 30(f));

(e) Rogers Memorial Hospital, in Wisconsin, which offers several mixed-sex home-like
environments, including a nine-bed residential facility for trauma/eating disorder dual diagnosis patients (Id., ¶ 30(d);

(f)

The Eating Disorders Program at UCLA’s Resnick Neuropsychiatric Hospital, which

treats eight adults at a time on the small “4 North” locked inpatient unit, where each patient has a private bedroom with its own bathroom (normally inaccessible during the day), and all patients share a single tiny “day room” (and its unisex bathroom) during almost all waking hours, meals, etc. (Id., ¶ 30(b)); and

(g) The Bella Speranza, “offers care for both adults and adolescents … treat[ing] both males
and females [in] a beautifully decorated and spacious home [that] is a six bed residential facility … The Bella Speranza house is a charming Cape Cod residence in the sought out community of La Cañada Flintridge, California.” (Discovered after the filing of the Complaint.) These non-discriminating facilities are finding themselves in increasing demand. (Id., ¶ 32.)

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D.

Severity and Frequency of Eating Disorders

Eating disorders have the highest mortality rate of any mental illness, approaching twenty percent (20%) in the advanced stages of anorexia nervosa. (Id., ¶ 14.) Conservatively, one in ten eating disorder sufferers is male, though recent studies suggest the actual percentages may be much higher. (Id., ¶¶ 26-29.) E. Press Coverage

The rising incidence of reported eating disorders in males, together with the issues those men face in obtaining treatment for their eating disorders, has been widely reported, throughout the state of California and in nationwide media. (Id.) F. Treatment for Men and Women is Essentially The Same

There exists among the eating disorder treatment community “a broad consensus … that eating disorders in males are clinically similar to, if not indistinguishable from, eating disorders in females.” (Id., ¶ 33.) Further, “the basic principles for treatment [for males with eating disorders] are similar to those for treating women … [including] cessation of starvation, cessation of binge eating, weight normalization, interrupting binge and purge cycles, correcting body image disturbance, reducing dichotomous thinking, and treating any coexisting mood disorders and personality disorders.”

II.

STATEMENT OF LAW
The law is clear: “All persons within the jurisdiction of this state are free and equal, and no

matter what their sex … are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.” (Cal. Civ. Code § 51(b).) The Defendant business establishments improperly deny men the accommodations, advantages, facilities, privileges, and services they provide to women, and they raised no effective defenses when challenged by Doe’s suit. A plaintiff may move for judgment on the pleadings when “the complaint states facts sufficient to constitute a cause or causes of action against the defendant and the answer does not state facts sufficient to constitute a defense to the complaint.” (CCP § 438(c)(1)(A).) The ground(s) for the motion must appear on the face of the challenged pleading, or from those matters the Court must, or may, take judicial notice of. (CCP § 438(d).)
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None of the Defendants’ purported affirmative defenses state facts sufficient to constitute a defense. In fact, each suffer from the same fatal defect, in that each defense “contains no averment of fact whatsoever and rests upon the naked, unsupported, legal conclusion of the pleader.” Metropolis Trust & Sav. Bank v. Monnier, 169 Cal. 592, 596 (1915), cited with approval in FPI Development, Inc. v. Nakashima, 231 Cal. App. 3d 367, 384 (3d Dist. 1991) (noting that “affirmative defences [that are] not well pled, consisting of legal conclusions” would not survive a demurrer). Affirmative defenses must be “‘averred as carefully and with as much detail as the facts which constitute the cause of action and are alleged in the complaint.’” FPI Development, supra, at 384.

III. ARGUMENT
A. Defendant’s First Purported Defense: Failure to State a Claim

Defendant’s first purported defense is the boilerplate recital that “[b]y his Complaint, Plaintiff fails to allege facts sufficient to constitute claims for relief against Defendants.” However, even the most cursory examination of the Complaint in this action will reveal that to not be the case; Doe has alleged facts sufficient to establish the clear denial of the “full and equal accommodations, advantages, facilities, privileges, or services” required to be available to him, and that the denial was based on his sex, in direct and unambiguous violation of the Unruh Civil Rights Act. B. Defendant’s Second Purported Defense: No “Established Business”

Defendants next claim that Doe’s “entitlement to recovery is barred in whole or in part to the extent of any of the Defendants is not an ‘established business’ under the Unruh Act.” Whether or not each Defendant is a business establishment is a matter of law; Rotary Club of Duarte v. Bd. of Directors, 178 Cal.App.3d 1035, 1050 (1986). The Defendants are business establishments. The Act applies, by its very language, to “all business establishments of every kind whatsoever,” Cal. Civ. Code § 51, and there has long been “no doubt that the term ‘business establishments’ was used in the broadest sense reasonably possible.” Burks v. Poppy Construction Co., 57 Cal. 2d 463, 468 (1962). This expansive interpretation of the Act specifically extends to include medical practices, physicians, and professional services; see, e.g., Washington v. Blampin, 226 Cal. App. 2d 604 (Cal. App. 2d Dist. 1964) (holding that providing professional services, specifically the practice of medicine,
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constituted a business establishment under the Act); Leach v. Drummond Medical Group, 144 Cal. App. 3d 362, 370 (Cal. App. 5th Dist. 1983) (reaffirming Blampin and clarifying the phrase ‘generally open to the public’ to include medical facilities open only to paying patients of physicians authorized to use those facilities); O'Connor v. Village Green Owners Assn., 33 Cal. 3d 796, 796 (1983) (noting that nonprofit hospitals are “clearly business establishments”). Defendant Costin was named as the Monte Nido and Vista employee responsible for the discriminatory conduct. North Coast Women's Care Medical Group, Inc. v. Superior Court, 44 Cal. 4th 1145, 1154 (2008) (extending liability “beyond the business establishment itself to the business establishment’s employees responsible for the discriminatory conduct”). There is no rationale for Defendants’ purported defense here. C. Defendant’s Third Purported Defense: Legitimate Business Purpose

Defendants contend, with no factual or legal support, that they “are justified to some degree of limitation on consumer access to public accommodations.” But, the “Unruh Act does not permit a business enterprise to exclude an entire class of individuals … Indeed, the basic rights guaranteed by section 51 would be drastically undermined if … a business enterprise could exclude from its premises or services entire classes of the public simply because the owner of the enterprise had some reason to believe that the class, taken as a whole, might present greater problems than other groups. ” Marina Point, Ltd. v. Wolfson, 30 Cal. 3d 721, 739 (1982). Here, defendants have consistently excluded from their services an entire class of people: men. The Defendants “perform a significant public function,” and simply “may not erect barriers of arbitrary discrimination in the marketplace.” In re Cox, 3 Cal. 3d 205, 218 (1970). Too, “a motive of rational self-interest [does] not justify discrimination.” Koire v. Metro Car Wash, 40 Cal. 3d 24, 32 (1985) (internal quotations omitted; emphasis in the original). Indeed, in deciding Koire the California Supreme Court cited with approval the reasoning of the appellate court in Easebe Enters. v. Alcoholic Bev. Etc. Appeals Bd., 141 Cal. App. 3d 981, 987 (2d Dist., 1983): “It may be true as it asserts, that if it is forced to admit men under the Unruh Act, the ultimate result will be the commercial demise of the program since women would no longer wish to attend. However, such fact, if it be a fact, is not determinative. An entrepreneur’s discriminatory practice based upon ostensible rational economic self6
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interest still violates public policy as codified in Civil Code section 51.” As the California Supreme Court noted in Isbister v. Boys' Club of Santa Cruz: “There are any number of plausible reasons why the owner of a ‘business establishment’ serving the public might wish, in good faith, to exclude or discriminate against a particular group. But the Legislature has decreed that, once a ‘business establishment’ attains that public status, it has responsibilities to the entire community which cannot be lightly ignored.” (40 Cal. 3d 72, 89 (1985).) D. Defendant’s Fourth Purported Defense: Failure to Exhaust

Contrary to the Defendant’s claim that Doe “failed to exhaust any administrative remedies available to him,” no exhaustion of administrative remedies is required before bringing a claim under the Unruh Act before this Court: “Actions brought pursuant to this section are independent of any other actions, remedies, or procedures that may be available to an aggrieved party pursuant to any other law . . . Any person claiming to be aggrieved by an alleged unlawful practice in violation of Section 51 or 51.7 may also file a verified complaint with the Department of Fair Employment and Housing …” Cal. Civ. Code § 52(e)-(f) (emphasis added). E. Defendant’s Fifth Purported Defense: Compelling Social Policy 1. No Compelling Social Policy Supports Defendants’ Discrimination Defendants weakly claim, with no support whatsoever, that their “actions are based on a compelling social policy.” However, “[i]t is primarily the prerogative of the Legislature to declare what is against public policy … it is generally agreed that ‘public policy’ as a concept is notoriously resistant to precise definition, and that courts should venture into this area, if at all, with great care and due deference to the judgment of the legislative branch, ‘lest they mistake their own predilections for public policy which deserves recognition at law.’ . . . A public policy that has not been clearly expressed by the Legislature should at least be fundamental, substantial, and firmly established.” Tunstall v. Wells, 144 Cal.App.4th 554, 564 (2006) (quoting Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co., 20 Cal. 4th 163, 185 (1999), internal citations and internal quotation marks omitted.) A social need “must be well-documented and established as a matter of public policy” to permit the exclusion of an entire class of people. Isbister, supra, 40 Cal. 3d at 88. A discriminatory practice will survive challenge “only when there is a strong public policy in favor of such treatment. ” Koire, 40 Cal.
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3d at 31 (emphasis in the original). Such a public policy is found, if at all, in statutes enacted by the legislature. Id.; see also Pines v. Tomson, 160 Cal. App. 3d 370, 387 (Cal. App. 2d Dist. 1984). Finally, “‘[p]ublic policy’ exceptions to the Unruh Act are rare.” Koire, 31 n8. The Defendants’ exclusionary policy cannot “be defended by reference to any statutorily sanctioned restriction.” Marina Point, supra, 30 Cal. 3d at 741. 2. Legislatively Expressed Public Policy in Favor of Equal Access Put simply, “public policy in California mandates the equal treatment of men and women.” Koire, supra, 40 Cal. 3d at 37. In Koire, the California Supreme Court analyzed the enactments of the California Legislature and pronounced: “Public policy in California strongly supports eradication of discrimination based on sex. The Unruh Act expressly prohibits sex discrimination by business enterprises. ” Id., at 36 (listing additional statutes that “stand as evidence of this strong public policy”). As such, “arbitrary sex discrimination by businesses is per se injurious.” Id., at 33 (emphasis in the original). See also Rotary Club, supra, 178 Cal. App. 3d at 1047 (“The Unruh Act is clearly a declaration of California's public policy mandate and objective that men and women be treated equally”). California treats sex-based discrimination with strict scrutiny (In re Marriage Cases, 43 Cal. 4th 757, 832-833 (2008)); sex-based classification is a suspect classification. Sail'er Inn, Inc. v. Kirby, 5 Cal. 3d 1, 15 (1971). 3. Public Policy of Increased Access to Residential Care for Eating Disorders The California State Legislature has recognized the critical need for eating disorder treatment, listing anorexia nervosa and bulimia nervosa as two of the nine severe mental illnesses given parity coverage, mandating insurance coverage on the same terms as medical conditions. Cal. Health and Saf. Code § 1374.72(d)(8)-(9); Cal. Ins. Code § 10144.5(d)(8)-(9). Too, ensuring that the ill are treated in “the least restrictive setting possible consistent with their needed treatment is unquestionably an important legislative policy.” In re Gandolfo, 36 Cal. 3d 889, 898 (1984) (emphasis added). California has expressly stated that it “is the intent of the legislature that persons with mental illness shall have rights including... [the] right to treatment services which promote the potential of the person to function independently. Treatment should be provided in ways that are least restrictive of the personal liberty of the individual. ” Cal. Wel. & Inst. Code § 5325.1.
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Towards that end, the California Code is replete with examples of the Legislature mandating “least restrictive” settings generally, often favoring residential facilities specifically; see, e.g.: Cal. Health & Saf. Code §§ 1265.7, 1568.083, 1569.71; Cal. Prob. Code §§ 2356.5, 1800; Cal. Wel. & Inst. Code §§ 4502, 4648, 5332, 5347-5348, 5358, 5585.53, 5672, 6504.5, 6509, 9016, 14132.24, 14132.26, 14495.10. Residential settings offer opportunities impossible in inpatient hospital settings (Compl., ¶¶ 3436), and the Legislature has recognized providing these opportunities as an important public policy by, e.g., stating that the “mission of California’s mental health system shall be to enable [mental health clients] to access services and programs that assist them, in a manner tailored to each individual, to better control their illness, to achieve their personal goals, and to develop skills and supports leading to their living the most constructive and satisfying lives possible in the least restrictive available settings. ” Cal. Wel. & Inst. Code § 5600.1; see also Cal. Wel. & Inst. Code § 14132.26 (underscoring the desirability of providing services in the “least restrictive and most homelike environment” possible). Finally, the Legislature has also expressed its preference that mental health treatment take place preferably in a client’s own community (see, e.g., Cal. Wel. & Inst. Code § 5600.2(a)(4)), where clients can “create and maintain a support system consisting of friends, family, and participation in community activities.” Id., § 5806(c)(3). Clearly, the Legislature has expressed strong public policies in favor of making the most appropriate level of care available to those who need it; the Defendants should not be permitted to thwart those clearly expressed Legislative goals with their arbitrary policy of discrimination. F. Defendants’ Remaining Sixth, Seventh, Eighth, and Ninth Defenses

Lacking any factual or legal support whatsoever, Doe is unable to meaningfully respond to the Defendants’ boilerplate recitals that their actions are “permitted under other laws,” that Doe has “no imminent irreparable harm” and has “no reasonable probability of success to prevail on the merits,” or that “equitable defenses apply to Plaintiff, which he has failed to fulfill.” Conclusory statements with no factual showing do not constitute adequate statements of affirmative defenses, however.

IV. CONCLUSION
Because the Defendants utterly failed to support their purported defenses with any factual or legal support; because what defenses they purport to raise can be decided as a matter of law; and
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because the law clearly favors Doe’s position of expanding access to care for men afflicted with eating disorders, the Court should grant this motion.

Dated: February 22, 2012 By:

Respectfully submitted,

John Doe, Plaintiff in pro per

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