Z.F., et al v. Ripon Unified School District, et al

Filing 190

ORDER signed by Judge Garland E. Burrell, Jr on 3/21/13 DENYING 152 Motion to Certify Class and 164 Motion for Joinder. (Meuleman, A)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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Z.F, a minor, by and through his
parents M.A.F and J.F. and
M.A.F. and J.F. individually;
L.H., and J.H., minors, by and
through their parents J.A. and
J.R.H. and J.A. and J.R.H.
individually; A.N., a minor, by
and through his parents, G.N.
and M.R., and G.N. and M.R.
individually,

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Plaintiffs, on behalf
of themselves and all
others similarly
situated,

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v.

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RIPON UNIFIED SCHOOL DISTRICT
(RUSD); RIPON UNIFIED SCHOOL
DISTRICT BOARD OF TRUSTEES; SAN
JOAQUIN COUNTY OFFICE OF
EDUCATION; VALLEY MOUNTAIN
REGIONAL CENTER (VMRC); MODESTO
CITY SCHOOLS; MODESTO CITY
SCHOOLS BOARD OF EDUCATION; and
Does 1 – 200,

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Defendants.

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________________________________

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AND RELATED COUNTER-CLAIM
________________________________

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2:10-cv-00523-GEB-JFM
ORDER DENYING PLAINTIFFS’
MOTION FOR CLASS
CERTIFICATION AND MOTION FOR
JOINDER OF DEFENDANTS

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Plaintiffs seek certification under Federal Rule of Civil

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Procedure (“Rule”) 23(a) and 23(b)(3) of the following class: “All

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children assessed with [Autism Spectrum Disorder (“ASD”)] who resided

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within

the

jurisdictional

boundaries

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served

by

[Defendant

Valley

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Mountain Regional Center] from November 9, 2005 to present and who may

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have benefitted from [Applied Behavior Analysis] services.” (Pls.’ Mem.

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of P.&A. in Supp. of Mot. for Class Certification (“Class Mot.”) 7:17-

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8:3, ECF No. 153.)1 Plaintiffs “propose[d amending] the class definition”

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in their reply brief “to conform to the [following] three categories[,]”

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to remove any ambiguity as to the class definition:

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(1) those children assessed with ASD who did
receive services under the [Early Intensive
Behavioral Treatment Program] but had to accept
illegal conditions and waive rights; (2) those
children assessed with ASD who were denied services
due to the illegal criteria; and, (3) those
children assessed with ASD who were never informed
of the right to receive [Early Intensive Behavioral
Treatment Program] services.

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(Pls.’ Reply to Class Mot. 1:16-23, ECF No. 181.)

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Plaintiffs also move to add Tracy Unified School District,

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Stockton Unified School District, Lodi Unified School District, Sylvan

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Union School District, Stanislaus County Office of Education, and the

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Stanislaus

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Defendants “in place of DOE Defendants 1-6.” (Pls.’ Mot. for Joinder of

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Defs. (“Joinder Mot.”) 2:19-28, ECF No. 164.)

County

Special

Education

Local

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Area

(“SELPA”)

as

Defendants oppose both motions.2

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Plan

I. BACKGROUND

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This

action

concerns

the

provision

of

intensive

applied

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behavior analysis (“ABA”) to children diagnosed with ASD within a

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certain geographic region of California. Plaintiffs allege that they are

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diagnosed with ASD and were denied access to intensive ABA services in

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Plaintiffs also seek certification two subclasses. (Class Mot.

7:20-25.)
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All
defendants
oppose
Plaintiffs’
motion
for
class
certification. All defendants, with the exception of Modesto City
Schools, oppose Plaintiffs’ motion to join defendants.
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violation of Section 504 of the Rehabilitation Act (“RA”), Title II of

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the Americans with Disabilities Act (“ADA”), and California’s Unruh

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Civil Rights Act.

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Plaintiffs

allege

that

“[c]urrently,

in

‘Region

6’

of

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California, . . . [there exists] an inter-agency, co-funded program

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called

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program[, which] provides intensive one-to-one behavior treatment based

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on the UCLA/Lovaas model (a.k.a. Applied Behavior Analysis or ABA).”

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(Pls.’ Second Am. Compl. (“SAC”) ¶ 13.) Plaintiffs allege “the EIBT

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program is described in its entirety in a contract called the “EIBT

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Program, Procedures & Guidelines [(the “EIBT Guidelines”)] . . . .” (Id.

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at ¶ 15.)

the

“Early

Intensive

Behavioral

Treatment” (“EIBT”)

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Plaintiffs allege that families “in Region 6 do not have

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access to intensive one-to-one behavioral treatment outside of the EIBT

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arrangement.” (Id. at ¶ 14.) “Entrance [to], continuation [of], and exit

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[from intensive ABA services] is based upon the child’s ability to meet

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the EIBT [Guidelines,] which by [their] own terms [are] not uniquely

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tailored to the unique needs of each student.” (Id.)

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Plaintiffs

allege

that

they

“requested

[intensive]

ABA

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services . . . but were denied access to intensive [ABA] treatment . . .

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because

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process, and/or the actions of agencies and individuals involved with

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the agreement . . . .” (Id. at ¶ 17.) The named plaintiffs “were

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[subsequently] able to obtain, either through settlement or through an

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award

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services without the necessity of proceeding through the EIBT/PPG

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program.” (Class Mot. 6:13-17.) Plaintiffs allege that use of the EIBT

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Guidelines “operates as a programmatic barrier under the [ADA] and

of

from

the

the

[EIBT

Guidelines’]

California

Office

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eligibility

of

criteria,

Administrative

referral

Hearings,

ABA

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Section 504 of the [RA] because it denied all Plaintiffs access to an

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intensive ABA program . . . .” (SAC ¶ 19.)

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II. DISCUSSION

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A.

Class Certification

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Plaintiffs move to certify the above-defined class, arguing

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certification is proper under Rule 23(a). Plaintiffs further argue that

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their proposed class meets the predominance and superiority elements of

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Rule 23(b)(3). (Class Mot. 17:23-19:20.)

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Each Defendant opposes Plaintiffs’ class certification motion

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on multiple grounds. (See ECF Nos. 171, 173, 174.) Defendants contend

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that Plaintiffs have not met their burden of proof on the four required

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elements

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predominance and superiority requirements of Rule 23(b).

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1.

of

Rule

23(a),

and

Plaintiffs

have

not

satisfied

the

Legal Standard
“Parties

seeking

class

certification

bear

the

burden

of

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demonstrating that they have met each of the four requirements of [Rule]

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23(a) and at least one of the requirements of Rule 23(b).” Ellis v.

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Costco Wholesale Corp., 657 F.3d 970, 979-80 (9th Cir. 2011). “When

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considering class certification under Rule 23, district courts are not

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only at liberty to, but must perform a rigorous analysis . . . .” Id. at

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980 (internal quotation marks omitted).

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Here, “Plaintiffs have not met their burden of showing that

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common questions predominate, which is fatal to class certification

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under Rule

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threshold requirements of Rule 23(a) or the Rule 23(b)(3) requirement of

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superiority.”

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2010 WL 935758, at *2 (D. Minn. Mar. 12, 2010) (citing Steering Comm. v.

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Exxon Mobile Corp., 461 F.3d 598, 601, 604 (5th Cir. 2006)); see also

23(b)(3)[;

therefore,] the

Court does not

address the

Moua v. Jani-King of Minn., Inc., No. 08-4942 ADM/JSM,

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Edwards v. Ford Motor Corp., No. 11-CV-1058-MMA(BLM), 2012 WL 2866424,

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at *2, 4-11 (S.D. Cal. June 12, 2012) (declining to address other

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elements relevant to class certification when predominance under Rule

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23(b)(3) not met).

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2.

Predominance under Rule 23(b)(3)

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Plaintiffs argue that “[u]nder the circumstances of this case,

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common issues predominate over individual issues.” (Class Mot. 17:23.)

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Specifically, Plaintiffs argue:

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[T]here are numerous common issues for the putative
class members vis-á-vis the EIBT/PPG scheme. The
liability analysis will be identical for each class
member: (a) did the EIBT/PPG deny access to ABA
services to which a class member is otherwise
entitled to under law; (b) does the EIBT/PPG
discriminate against class members by reason of the
requirements of their disability; (c) does the
EIBT/PPG impose conditions upon the receipt of ABA
services that violate state and federal law? The
multitude of factual issues surrounding the
EIBT/PPG, its implementation[,] and impacts upon
class members’ ability to obtain ABA services are
all common to class members – not individual
determinations.

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(Id. at 17:24-18:4.) Plaintiffs also contend that “[a]ny individual

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issues . . . are overshadowed by the standardized EIBT/PPG.” (Id. at

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19:10-11.)

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Defendants rejoin that “this is not a case where common issues

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of law or fact predominate over individual issues. Rather, individual

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determinations of legal and factual issues would need to be made in

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order to provide the relief sought by [P]laintiffs.” (Modesto City

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School (“MCS”)’s Opp’n to Class Mot. 1:20-23, ECF No. 173; see also

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VMRC’s Opp’n to Class Mot. 23:3-4, ECF No. 174; Ripon USD’s Opp’n to

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Class Mot. 23:7-13, ECF No. 171.) Defendants argue:

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[W]hile [P]laintiffs conclusorily state that the
EIBT/PPG program denied each putative class member
access to ABA services, in order to reach this
conclusion, a very detailed factual analysis must
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occur. For example, each student’s particular needs
must be established and examined, the actions of
each student’s Individualized Education Program
(IEP) team must be established and examined, and
the
various
options
for
special
education
programming for each student and the application of
this program analysis must be performed.

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(Ripon USD’s Opp’n to Class Mot. 24:8-17.) Defendants contend:

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There are many varying services, treatments, and
therapies available for children with autism. Even
among experts in the field of autism, there is no
consensus about what is the best education
treatment or intervention for young children with
autism. . . . There is no blanket approach or
intervention strategy that works for all students
with ASD, it is an individual determination made
through the IEP process.

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(MCS’s Opp’n to Class Mot. 3:26-4:23.) Defendants further argue that

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“each class member would have his own issues of, among others . . .

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damages to prove[,]” and “[c]lass certification . . . would prevent

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[Defendants] from litigating their statutory defenses to individual

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claims, such as failure to exhaust, compliance with the IEP process,

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parental consent and waiver, and more.” (Ripon USD’s Opp’n to Class Mot.

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28:2-5; MCS’s Opp’n to Class Mot. 16:26-28.)

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In support of their oppositions, Defendants filed, inter alia,

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the Declarations of Tara Sisemore-Hester and Virginia Johnson. Ms.

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Johnson is the Associate Superintendent of Education Services for MCS

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and has “oversight and supervision over [MCS’s] special education

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program and services.” (Johnson Decl. ¶ 1, ECF No. 173-1.) Ms. Sisemore-

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Hester

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facilitate[s] and perform[s] quality management of autism services

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provided by VMRC . . . .” (Sisemore-Hester Decl. ¶ 2, ECF No. 179.)

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is the Coordinator of Autism Services for [VMRC] . . . . [and]

Concerning the provision of special education to children with
ASD, Ms. Sisemore-Hester avers:

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6.
Once a child under the age of three is
diagnosed with autism by a diagnostic clinician,
VMRC’s Service Coordinator . . . organizes an
Individual Family Service Plan (“IFSP”) meeting in
order to determine the appropriate course of
intervention. The IFSP meeting is attended by
VMRC’s Service Coordinator, the child, his or her
parents, and other parties who have information
concerning the child. . . . During the IFSP
meeting, the parties in attendance discuss whether
further assessment is needed, and which form of
intervention is appropriate. Once the parties
determine which of the three forms of Applied
Behavioral Analysis (“ABA”) treatment would be most
beneficial to the child, VMRC’s Service Coordinator
contacts me and asks me to coordinate the provision
of the treatment. I then arrange for one of the
[Non-Public Agencies (“NPAs)] which VMRC contracts
with to provide intervention services to the child.
7.
One of the forms of ABA treatment which
VMRC may fund for a child under the age of three is
Early Intensive Behavioral Treatment (“EIBT”). As
its name implies, EIBT is an intense and aggressive
form of treatment which is not appropriate for all
children with autism. Instead, it best serves those
children who can handle the rigor of treatment. The
determination of whether EIBT is appropriate for a
child is based on assessments provided by any NPAs
which are not treating the child as well as the
diagnostic clinician who diagnosed the child. If
EIBT is not determined to be an appropriate form of
treatment for a child, VMRC will ensure that an NPA
provides an alternative ABA treatment to the child,
unless the parents decline ABA altogether.
(Id. at ¶¶ 6-7.) Ms. Johnson declares:
3.
Students with [ASD] who qualify for
special education services from [MCS] also have
their
educational
placement,
services,
and
therapies determined through the IEP process.”

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4.
For students with ASD between the ages of
three and five, the District may provide [ABA]
therapies either in a District school setting or in
an intensive in home setting depending on the needs
of the individual child. Other therapies and
services may be provided in lieu of ABA dependent
on the individual needs of the individual student.
There is no single therapy that is required by
every student with ASD.

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. . . .
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8.
The determination of whether a student
with ASD requires ABA services is an IEP team
determination made through the IEP process.

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(Johnson Decl. ¶¶ 3-4, 8.)

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“In order to certify a class under [Rule 23(b)(3)], a court

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must find ‘that the questions of law or fact common to class members

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predominate over any questions affecting only individual members, and

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that a class action is superior to other available methods for fairly

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and efficiently adjudicating the controversy.’” Erica P. John Fund, Inc.

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v. Halliburton Co., 131 S. Ct. 2179, 2184 (2011).

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“Implicit in the satisfaction of the predominance test is the

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notion that the adjudication of common issues will help achieve judicial

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economy.” Valentino v. Carter-Wallace, Inc., 97 F.3d 1227, 1234 (9th

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Cir.

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adjudication of each class member’s individual claim or defense, a Rule

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23(b)(3) action would be inappropriate.’” Casida v. Sears Holdings

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Corp., No. 1:11-cv-01052 AWI JLT, 2012 WL 3260423, at *7 (E.D. Cal. Aug.

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8, 2012) (quoting Zinser v. Accufix Research Inst., Inc., 253 F.3d 1180,

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1189 (9th Cir. 2001)).

1996).

“Where

the

issues

of

a

case

‘require

the

separate

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Accordingly, “[c]onsider[ation of] whether ‘questions of law

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or fact common to class members predominate’ begins . . . with the

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elements of the underlying cause of action.” Erica P. John Fund, Inc.,

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131 S. Ct. at 2184. “[T]he court must take into account the claims,

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defenses, relevant facts, and applicable substantive law to assess the

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degree to which resolution of the classwide issues will further each

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individual class member’s claim against the defendant[s].” Klay v.

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Humana, Inc., 382 F.3d 1241, 1254 (11th Cir. 2004) (internal quotation

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marks and internal citation omitted), abrogated in part on other grounds

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by Bridge v. Phoenix Bond & Indem. Co., 553 U.S. 639 (2008).
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Plaintiffs allege that “Defendants . . . discriminated against

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[them] by using the [EIBT Guidelines] as a barrier which has denied them

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access to intensive ABA services” in violation of section 504 of the RA,

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Title II of the ADA, and the California Unruh Civil Rights Act. (See SAC

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¶¶ 81, 88, 100.) “The prima facie standard for all three statutes is

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essentially coterminous.” Colombini v. Members of Bd. of Dirs. of Empire

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Coll. Sch., No. C9704500CRB, 2001 WL 1006785, at *5 n.5 (N.D. Cal. Aug.

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17, 2001); see Zukle v. Regents of Univ. of Cal., 166 F.3d 1041, 1045

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(9th Cir. 1999) (“There is no significant difference in the analysis of

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the rights and obligations created by the ADA and the [RA]. Thus courts

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have

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statutes . . . .”); see also Kramer v. Regents of the Univ. of Cal., 81

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F. Supp. 2d 972, 976-77 (N.D. Cal. 1999) (“The Unruh [Civil Rights]

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Act . . . [is] directly analogous to federal disability discrimination

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laws.”)

applied

the

same

analysis

to

claims

brought

under

both

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To establish a violation of these statutes, a plaintiff must

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show that “(1) she is a qualified individual with a disability; (2) she

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was excluded from participation in . . . [a] service[], program[], or

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activit[y],

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disability.” Lovell v. Chandler, 303 F.3d 1039, 1052 (9th Cir. 2002)

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(stating prima facie elements of § 504 claim); see also Zukle, 166 F.3d

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at 1045 (stating prima facie elements of ADA and § 504 claims).

and

(3)

such

exclusion

.

.

.

was

by

reason

of

her

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“To determine the scope of the term ‘otherwise qualified

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. . . ,’ courts consider the eligibility requirements of the [services

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sought].” Dempsey v. Ladd, 840 F.2d 638, 640 (9th Cir. 1988). “An

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otherwise qualified individual is one who is able to meet all of [the

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service’s] requirements in spite of h[er] [disability].” Se. Cmty. Coll.

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v. Davis, 442 U.S. 397, 406 (1979).
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Accordingly, to prevail on their claims, Plaintiffs will have

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to

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intensive ABA services sought. And as set forth in the Declarations of

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Tara Seisemore-Hester and Virginia Johnson, the appropriate therapy(ies)

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for children diagnosed with ASD are determined through an IEP process;

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there is no single therapy that is required by every student. Further,

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Plaintiffs

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declaratory relief. Therefore, individualized inquiries would have to be

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conducted concerning each plaintiff’s alleged damages.

establish

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that

are

they

seeking

are

“otherwise

damages

in

qualified”

addition

to

to

receive

injunctive

the

and/or

For the stated reasons, Plaintiffs have not shown that the

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alleged

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Guidelines will predominate. Therefore, Plaintiffs’ motion for class

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certification is DENIED.

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B.

common

questions

concerning

Defendants’

use

of

the

EIBT

Joinder/Substitution of Doe Defendants

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Plaintiffs also move to join Tracy Unified School District,

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Stockton Unified School District, Lodi Unified School District, Sylvan

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Union School District, Stanislaus County Office of Education and the

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Stanislaus County SELPA in place of Doe Defendants 1-6. (Joinder Mot.

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2:19-25.) Plaintiffs argue that joinder/substitution is proper under

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Rule 20(a) “because each of the Proposed Defendants utilized the [EIBT

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Guidelines] and thus numerous common facts and legal questions exist.”

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(Id. at 2:25-28.)

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Defendants oppose the proposed joinder of Doe Defendants,

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arguing, inter alia, that “the named plaintiffs have no standing to

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complain against the Proposed Defendants, as they do not live within the

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educational jurisdiction boundaries of the Proposed Defendants, and

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therefore have no connection to the Proposed Defendants.” (Ripon USD’s

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Opp’n to Joinder Mot. 3:12-17 (internal citation omitted), ECF No. 172;
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see also VMRC’s Opp’n to Joinder Mot. 5:23-6:3, 6:24-7:2, ECF No. 180.)

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In their reply brief, Plaintiffs do not contest that the named

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plaintiffs have no connection to the defendants sought to be joined.

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Rather, they indicate that the defendants sought to be added “are

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currently utilizing the [EIBT Guidelines] to create a barrier which has

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deprived the potential class plaintiffs from accessing intensive [ABA

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services].” (Pls.’ Reply to Joinder Mot. 3:20-4:2 (emphasis added), ECF

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No. 182.)

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Since Plaintiffs’ motion for class certification is denied,

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and Plaintiffs have not shown that the named plaintiffs have any right

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to relief against the defendants sought to be added, Plaintiffs’ joinder

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motion is DENIED.

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Dated:

March 21, 2013

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GARLAND E. BURRELL, JR.
Senior United States District Judge

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