M. et al v. Drycreek Joint Elemtnary School District et al

Filing 86

ORDER signed by Judge Garland E. Burrell, Jr., on 9/7/12 ORDERING that the ALJ's Decision is AFFIRMED, and District's 65 summary judgment motion is GRANTED. Judgment shall be entered in favor of Defendant. CASE CLOSED (Kastilahn, 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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G.M., a minor, by and through
his Guardians ad Litem, KEVIN
MARCHESE and LYNDI MARCHESE;
KEVIN MARCHESE, an individual,
and LYNDI MARCHESE, an
individual,

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Plaintiffs,

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13

v.

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DRYCREEK JOINT ELEMENTARY SCHOOL
DISTRICT,

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Defendant.
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2:10-cv-00944-GEB-GGH
ORDER

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Defendant

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Drycreek

Joint

Elementary

School District

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(“District”) moves for summary judgment on each claim in Plaintiffs’

19

complaint. Plaintiffs’ claims concern Plaintiff G.M.’s (“Student’s”)

20

education while he was enrolled in the District. Plaintiffs Kevin

21

Marchese

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(collectively “Plaintiffs”) filed an opposition brief.

and

Lyndi

Marchese

(collectively

“Parents”),

and

Student

23

Plaintiffs’ first claim is an appeal of the California Office

24

of Administrative Hearings (“OAH”) administrative due process decision,

25

filed under the Individuals with Disabilities Education Improvement Act

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(“IDEIA”). “A district court may review state administrative decisions

27

under the [IDEIA] by means of a motion for summary judgment.” Sarah Z.

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v. Menlo Park City Sch. Dist., No. C 06-4098, 2007 WL 1574569, at *3

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(N.D. Cal. May 30, 2007) (citing Capistrano Unified Sch. Dist. v.

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Wartenberg

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However, “[w]hile called a ‘motion for summary judgment[,]’ . . . the

4

procedure

5

determination, not a summary judgment.” W.A. v. Patterson Joint Unified

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Sch. Dist. (“Patterson”), No. CV F 10–1317, 2011 WL 2925393, at *8 (E.D.

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Cal. July 18, 2011). Since Plaintiffs’ remaining claims are independent

8

from their administrative appeal under the IDEIA, the traditional

9

summary judgment standard applicable to Federal Rule of Civil Procedure

10

is,

in

59

F.3d

substance,

an

884,

891-92

appeal

from

(9th

an

Cir.

1995)).

administrative

(“Rule”) 56 motions governs that portion of District’s motion.
I. APPEAL OF ADMINISTRATIVE DUE PROCESS DECISION

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12

(“Capistrano”),

A. Standard of Review Under the IDEIA

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“When a party challenges . . . an IDEIA due process hearing,

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the reviewing court receives the administrative record, hears any

15

additional evidence, and bases its decision on the preponderance of the

16

evidence.” J.W. ex rel. J.E.W. v. Fresno Unified Sch. Dist. (“Fresno”),

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626

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alteration in original omitted) (citing 20 U.S.C. § 1415(i)(2)(B)).

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“Based on this standard, ‘complete de novo review of the administrative

20

proceeding is inappropriate.’” Id. (quoting Van Duyn v. Baker Sch. Dist.

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5J, 502 F.3d 811, 817 (9th Cir. 2007)). “As the party seeking relief in

22

this

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[Administrative Law Judge’s (‘ALJ’s’)] decision should be reversed . . .

24

[and] bears the burden of persuasion on each claim challenged.” Id.

25

(citing Clyde K. v. Puyallup Sch. Dist., No. 3, 35 F.3d 1396, 1399 (9th

26

Cir. 1994)).

F.3d

Court,

438

(9th

Student

Cir.

bears

2010)

the

(internal

burden

of

quotation

demonstrating

marks

that

and

the

“In review of an [IDEIA] due process hearing, courts give

27
28

431,

‘less

deference

than

is

conventional
2

in

review

of

other

agency

1

actions.’” Id. (quoting Ojai Unified Sch. Dist. v. Jackson, 4 F.3d 1467,

2

1472 (9th Cir. 1993)).

7

How much deference to give state educational
agencies, however, is a matter for the discretion
of the courts[.] . . . The court, in recognition of
the expertise of the administrative agency, must
consider the findings carefully and endeavor to
respond to the hearing officer’s resolution of each
material issue. After consideration, the court is
free to accept or reject the findings in part or in
whole.

8

Gregory K. V. Longview Sch. Dist., 811 F.2d 1307, 1311 (9th Cir. 1987)

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(emphasis in original; internal quotation marks and citation omitted).

10

“‘[D]ue weight’ must be given to the administrative decision

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below and . . . courts must not ‘substitute their own notions of sound

12

educational policy for those of the school authorities which they

13

review.’” Van Duyn, 502 F.3d at 817 (quoting Bd. of Educ., Hendrick

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Hudson Cent. Sch. Dist., Westchester Cnty. v. Rowley (“Rowley”), 458

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U.S. 176, 206 (1982)). Further, the “Court gives deference to an ALJ’s

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decision when it evinces his [or her] careful, impartial consideration

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of all the evidence and demonstrates his [or her] sensitivity to the

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complexity of the issues presented.” Fresno, 626 F.3d at 438 (internal

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quotation marks, alterations in original, and citations omitted).

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4
5
6

“A

20

district

court

should

accept

the

ALJ’s

credibility

21

determinations unless the non-testimonial, extrinsic evidence in the

22

record would justify a contrary conclusion.” K.S. ex rel. P.S. v.

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Fremont Unified Sch. Dist. (“Fremont”), 545 F. Supp. 2d 995, 1003 (N.D.

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Cal. 2008) (internal quotation marks and citation omitted). Further,

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“‘[b]ecause [IDEIA] eligibility determinations are fact-intensive,’ the

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Court ‘reviews findings of fact for clear error, even if those findings

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are based on the administrative record.’” Patterson, 2011 WL 2925393, at

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*8.
3

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2

B. Background
1. Statutory Framework

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“The [IDEIA] is a comprehensive educational scheme, conferring

4

on disabled students a substantive right to public education.” Fresno,

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626 F.3d at 432 (internal quotation marks and citation omitted). “The

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[IDEIA] ensures that ‘all children with disabilities have available to

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them a free appropriate public education [(“FAPE”)] that emphasizes

8

special education and related services designed to meet their unique

9

needs

and

prepare

them

for

further

education,

employment,

and

10

independent living.’” Id. (quoting 20 U.S.C. § 1400(d)(1)(A)). Under the

11

IDEIA, a FAPE is defined as:

12

special education and services that—(A) have been
provided
at
public
expense,
under
public
supervision and direction, and without charge; (B)
meet the school standards of the State educational
agency; (C) include an appropriate preschool,
elementary school or secondary school education in
the State involved; and (D) are provided in
conformity
with
the
individualized
education
program [(“IEP”)] required under section 1414(d) of
this title.

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20 U.S.C. § 1401(9). “To provide a FAPE in compliance with the [IDEIA],

19

a state educational agency receiving federal funds must evaluate a

20

student,

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education and services, conduct and implement an IEP, and determine an

22

appropriate educational placement of the student.” Fresno, 626 F.3d at

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432 (citing 20 U.S.C. § 1414).

determine

whether

that

student

is

eligible

for

special

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“Student’s FAPE must be ‘tailored to [his] unique needs . . .

25

by means of an . . . IEP.’” Id. (quoting Rowley, 458 at 206). An IEP “is

26

crafted by an IEP team made up of the parents, at least one regular

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education

28

representative of the local educational agency, and, at the discretion

and

one

special

education

4

teacher

of

[the

student],

a

1

of

2

[student].” E.P. v. San Ramon Valley Unified Sch. Dist., No. C05-01390,

3

2007 WL 1795747, at *1 (N.D. Cal. June 21, 2007) (citing 20 U.S.C. §

4

1414(d)(1)(B)). “An IEP team must set forth the IEP in a writing

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comprised of a ‘statement of annual goals and short-term instructional

6

objectives; a statement of the specific educational services to be

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provided and the extent to which the child can participate in regular

8

education programs; and objective criteria for measuring the student’s

9

progress.’”

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the

district

or

Id.

the

(quoting

parent,

Ojai,

others

4

F.3d

knowledgeable

at

1469);

about

20

the

U.S.C.

§

1414(d)(1)(A).

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Violations of the [IDEIA] may arise in two
situations. First, a school district, in creating
and implementing the IEP, can run afoul of the
Act’s procedural requirements. Second, a school
district can be liable for a substantive violation
by drafting an IEP that is not reasonably
calculated
to
enable
the
child
to
receive
educational benefits.

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Fresno, 626 F.3d at 432 (internal citations omitted). Here, Plaintiffs

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allege both procedural and substantive violations of the IDEIA.
2. Factual Background

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19

The following uncontroverted facts are taken from the ALJ’s

20

Decision,

the

administrative

21

administrative due process hearing. At all relevant times, Student

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resided with Parents in the District. (ALJ Decision ¶ 1 (findings).)

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“Student [has] receive[d] special education and related services because

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of a specific learning disorder (dyslexia)” since the first grade. Id.;

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Barbaria Test., Hr’g Trans. 93:16-18, Nov. 30, 2009. “He has deficits in

26

reading,

27

(findings).)

28

//

writing,

math,

and

record,

working

5

and

memory.”

testimony

(ALJ

from

Decision

the

¶

1

1

“[Parents and District] were unable to agree on an IEP for

2

Student for his sixth grade year ([2008-2009]), so [P]arents filed a

3

request for [a] due process hearing” in 2008. Id. ¶ 2. “In October 2008,

4

the

5

Agreement’), which] placed Student, for his sixth grade year, with an

6

outside reading tutor[, Suzanne Coutchié (‘Coutchié’),] for three hours

7

a day at District expense, and in physical education ([‘P.E.’]) for one

8

hour a day at . . . District’s Creekview Ranch Middle School.” Id. From

9

August

matter

was

2008

settled

until

the

by

ALJ

a

written

rendered

agreement

his

[(‘2008

Decision

in

Settlement

this

matter,

10

“Student’s school day . . . consisted of being driven to [Coutchié’s]

11

home in Davis for three hours of reading tutoring, and then to school

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for one hour of [P.E.]” Id. ¶ 10.

13

“District

employees

last

assessed

Student[’s

academic

14

abilities] in spring 2008 for his triennial review.” Id. ¶ 5. “In April

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2009, . . . District proposed an assessment plan to Parents, and sought

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[their] permission for academic reassessments of Student[.]” Id. “The

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day after [Parents] received the April 2009 assessment plan, [Lyndi

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Marchese]

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assessments herself.” Id. ¶ 6. Parents consented and Coutchié “conducted

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academic assessments of Student in late April and early May 2009.” Id.

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¶¶ 5 & 7. “Coutchié billed . . . District for the assessments, but

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[billed

23

assessments, and . . . District paid the bill, not knowing it was for

24

assessments.” Id. ¶ 6. “District did not learn that it had paid

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[Coutchié] for her assessments until the [administrative due process]

26

hearing.” Id. “After [Coutchié] conducted these assessments, [she],

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Parents, and . . . [Student’s advocate in the administrative due process

28

proceedings,

discussed

them]

as

it

with

ordinary

Michael

[Coutchié],

instructional

Rosenberg

who

time,

(“Rosenberg”),]

6

proposed

not

had

as

many

to

do

time

the

for

subsequent

1

contacts with District staff, but did not reveal the existence or the

2

results of [Coutchié’s] assessments to . . . District . . . until late

3

August 2009, when [Coutchié] produced them in response to a subpoena

4

duces tecum[.]” Id. ¶ 7.

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“[T]he [2009-2010] school year [was scheduled to begin] on

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August 10, 2009[.]” Id. ¶ 50. “District convened Student’s regularly

7

scheduled annual IEP meeting on May 28, 2009.” Id. ¶ 22. The following

8

individuals attended the May 28, 2009 IEP meeting: Parents; Coutchié;

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Rosenberg; District’s Director of Special Education, Lynn Barbaria

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(“Barbaria”); a resource specialist teacher in the District, Megan

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Williams; District’s then-legal counsel, Jacqueline McHaney; and four

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other District staff members. (A.R. 1214.) “[A]t the end of the May 28,

13

2009 meeting, [District] promised to deliver a written IEP offer to

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[Rosenberg] on June 5, 2009[.]” (ALJ Decision ¶ 37 (findings).) However,

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District failed to deliver an IEP offer to Rosenberg by June 5, 2009,

16

and Plaintiffs filed their administrative due process complaint on June

17

11, 2009. Id. at p.1.

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“On July 2, 2009, [District] began to make a series of

19

requests of Parents that they identify dates on which they would be

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available for an IEP meeting to make [District’s IEP] offer final.” Id.

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¶ 43. “Neither Parents nor [Rosenberg] responded to those requests.” Id.

22

“On July 27, 2009, [Barbaria] mailed a draft IEP to Parents, along with

23

a new assessment proposal.” Id. ¶ 44. On July 30, 2009, Barbaria sent

24

written notice to Parents that another IEP meeting was scheduled for the

25

following Wednesday, August 5, 2009. Id. ¶ 45.

26

“On Tuesday, August 4, 2009, Parents . . . [sent a letter to

27

District stating] they would not attend the August 5 meeting.” Id. ¶ 46.

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Parents also stated “the most important reason they would not attend the

7

1

August 5 meeting was that [they] . . . were in litigation” with

2

District.

3

discussion would be impossible; that the meeting would have an impact on

4

the litigation; and that they ‘[would] be denied due process rights and

5

sustain harm if [District] attempt[ed] to scheduled an IEP meeting while

6

due process litigation [was] pending.’” Id.

Id.

¶

66.

“[Parents]

argued

[in

the

letter]

that

open

7

District staff held the August 5, 2009 IEP meeting without

8

Parents or Coutchié. (Barbaria Test., Hr’g Trans. 171:18-172:18, Nov.

9

30, 2009.) Barbaria sent a letter and a draft IEP offer to Parents

10

following

the

meeting.

Id.

at

187:7-17.

“[Subsequently,

District]

11

decided to hold another IEP meeting that Parents could attend.” (ALJ

12

Decision ¶ 51 (findings).) “On August 14, [District] sent Parents a

13

notice of an IEP meeting [scheduled for] August 28.” Id. “Parents,

14

[Rosenberg], and [Coutchié] attended, as did all District staff required

15

by the statute.” Id. At the August 28, 2009 IEP meeting, “Parents

16

refused to discuss the details of . . . District’s [IEP] offer, stating

17

that they believed such a discussion was inappropriate while the matter

18

was in litigation.” Id. ¶ 55.

19

“The IEP offer that emerged from the August 28, 2009 IEP

20

meeting would have placed Student . . . at [District’s] Silverado Middle

21

School for his seventh grade year [(2009-2010)].” Id. ¶ 71. “The offered

22

program consisted of: two periods a day of one-to-one language arts

23

instruction with a District special education teacher trained and

24

experienced

25

dyslexia; two periods a day of small group math instruction . . . ; one

26

period a day of sixth grade science in a general education class with

27

the support of an instructional assistant . . . ; one period a day of

28

[P.E.]; one Advisory period a day; ten 30-minute sessions a year of

in

addressing

significant

8

reading

deficits,

including

1

speech and language therapy to address social skills; ten 30-minute

2

consultations a year by an occupational therapist to support keyboarding

3

instruction; and an extended school year.” Id.; Admin. R. (“A.R.”) 1211.

4

“The offer included an extensive list of accommodations and

5

modifications.” (ALJ Decision ¶ 72 (findings); A.R. 1188-1216.) “It also

6

included use of, and training for, a Kurzweil 300, a computer device for

7

people with dyslexia and other reading deficits that simultaneously

8

highlights text from scanned books or electronic text and reads it aloud

9

using synthetic speech.” (ALJ Decision ¶ 72 (findings); A.R. 1188-1216.)

10

“The IEP offer proposed that Student’s reading teacher, Lesley Ludwig,

11

would consult with Dr. [Lela Catherine] Cristo [(“Cristo”), who conducts

12

educational

13

specifics

14

performance and limitations could be determined” through more current

15

assessments. Id. ¶ 73. “It also offered monthly IEP team meetings to

16

monitor Student’s progress.” Id.

17

assessments
of

Student’s

for

District,]

reading

program

in

the

as

development

soon

as

his

of

the

present

2. Administrative Due Process Hearing and Decision

18

Plaintiffs filed a request for a due process hearing on June

19

12, 2009 in OAH Case No. 2009060940. (A.R. 1-7.) District filed a

20

request for a due process hearing on July 31, 2009 in OAH Case No.

21

2009071109, which was consolidated with OAH case No. 2009060940. Id. at

22

151-53. ALJ Charles Marson (“the ALJ”) conducted an administrative due

23

process hearing on November 30 and December 1, 2, 8, 9, and 10, 2009.

24

The ALJ ruled on the following issues in his February 18, 2010 Decision

25

(“Decision”):

26

Student’s Issues (OAH Case No. 2009060940):

27

1) Whether [District] failed to accord Parents
meaningful participation in the IEP process at and
after the May 28, 2009 IEP meeting because it
failed to deliver a written IEP offer by June 5,

28

9

1

2009, as it had promised, or by a reasonable time
thereafter;

2
3
4
5

2) Whether [District] failed to accord Parents
meaningful participation in the IEP process at the
May 28, 2009 IEP meeting because several members of
the IEP team were unfamiliar with Student; and

6

3) Whether [District] denied Student a FAPE by
failing to make a timely offer of a [FAPE] for the
. . . 2009-2010 [school year].

7

District’s Issues (OAH Case No. 2009071109):

8

1) Whether [District] may assess Student in
accordance with the assessment plan and related
correspondence presented to Parents on or about
April 2009 and July 2009; and

9
10
11

2) Whether [District’s] most recent IEP offer
constituted an offer of a FAPE for Student for the
. . . 2009-2010 [school year].

12
13

(ALJ’s Decision p. 2.) The ALJ found in favor of District on all issues.

14

Id. ¶¶ 5, 21-23 & 31-34 (conclusions). In addition, the ALJ granted in

15

part and denied in part District’s motion for attorneys’ fees against

16

Kevin Marchese. Id. at p.50.

17

C. Discussion

18

The Court has reviewed the entire record, which includes the

19

administrative

record,

the

hearing

transcripts,

and

the

parties’

20

arguments and authorities. Neither party requested to present additional

21

evidence concerning the administrative appeal.

22

The ALJ rendered his 51-page Decision following a six-day

23

hearing in which he actively participated. During the hearing, the ALJ

24

sought clarification and follow-up responses from the witnesses. The ALJ

25

accurately and completely described in his Decision the relevant witness

26

testimony and other evidence in the administrative record. In addition,

27

the ALJ discussed the qualifications of the witnesses on whom he relied,

28

explained the facts supporting his credibility determinations, applied

10

1

the relevant law, and thoroughly explained his legal conclusions.

2

Therefore, the Court finds the ALJ’s Decision to be thorough, well-

3

reasoned, and entitled to substantial deference.

4

1. ALJ’s Alleged Procedural Errors
a. Failure to Consider California Department of Education

5
6

(“CDE”)

Compliance

7

Reports

Concerning

Procedural

Violations

8

Plaintiffs allege in their First Amended Complaint (“FAC”)

9

that the ALJ “fail[ed] to consider and accept . . . the findings of

10

numerous

11

recognition of ongoing systemic and individual violations by [District]

12

against Student and his family.” (FAC ¶ 74(R).)

13

CDE

The

compliance

[reports]

administrative

record

which

demonstrated

contains

three

CDE

the

CDE’s

compliance

14

reports. The CDE found in its September 22, 2009 compliance report that

15

District violated California Education Code sections 56502(d)(2) and

16

56501.5(a)(1) by failing to respond to Parents’ administrative due

17

process complaint within ten days and failing to hold a resolution

18

session within fifteen days. (A.R. 960-70.) Similarly, the ALJ found

19

that “Federal and State law required that, within ten days of receiving

20

a due process complaint, a district must ‘send to a parent’ a ‘response’

21

to the complaint[,] . . . [but] District did not send Parents a response

22

to their June 11, 2009, complaint until July 28, 2009.” (ALJ Decision ¶¶

23

158-59 (findings).) Since the ALJ’s finding was consistent with the

24

CDE’s compliance report, Plaintiffs have not demonstrated that the ALJ

25

erred.

26

The CDE found in its October 9, 2009 compliance report that

27

District

violated

federal

regulations

28

[Student’s] current placement [for P.E.] during the pendency of [the]

11

by

“[f]ail[ing]

to

continue

1

administrative . . . due process proceeding.” (A.R. 971-79.) However,

2

Student’s P.E. placement from the 2008 Settlement Agreement was not at

3

issue

4

Plaintiffs have not demonstrated the ALJ erred by failing to consider

5

the October 9, 2009 CDE compliance report.

in

the

administrative

due

process

proceedings.

Therefore,

6

The CDE found in its November 9, 2009 compliance report that

7

District violated the California Education Code and federal regulations

8

concerning the August 5, 2009 IEP meeting by failing to “ensure [Parents

9

the] right to present information to the IEP team”; “ensure [Parents

10

were] fully informed of all information”; “notify [P]arents of IEP team

11

meeting early enough to ensure that they will have an opportunity to

12

attend”; and “include all required team members in the IEP meeting[.]”

13

(A.R.

14

committed the same violations and stated he “independently agree[d] with

15

[the CDE’s] findings.” (ALJ Decision ¶ 31 (conclusions); id. at p.12

16

n.4.) Therefore, Plaintiffs have not demonstrated the ALJ erred.

980-1008.)

The

ALJ

concluded

in

his

Decision

that

District

17

b. Alleged Violation of ALJ’s “Standing Order”

18

Plaintiffs argue that “without a stipulation [to amend its due

19

process complaint from Plaintiffs], [District] could not bring[,] nor

20

could the [ALJ] consider[,] the ‘new’ issues pertaining to the contrived

21

August 28, 2009 IEP meeting and the necessarily unlawful offer of FAPE

22

generated thereon, since it was a new issue barred by the [ALJ’s

23

‘standing order’] and the [IDEIA].” (Opp’n 21-22; FAC ¶¶ 74(D)-(E) &

24

(G).)

25

The ALJ’s “standing order” states in relevant part:

26

Issues: The hearing shall be limited to the issues
raised in the due process complaint notice. You
will not be permitted to raise other issues unless
the other party . . . agrees.

27
28

12

1

(A.R. 146.)

2

The evidence in the administrative record demonstrates that

3

District first included the August 28, 2009 IEP meeting in its “Issue

4

No. 2” when it filed its Second Amended Pre-Hearing Conference Statement

5

on November 18, 2009. (See A.R. 573 (District’s Second Amended Pre-

6

Hearing Conference Statement); id. at 244 (District’s August 18, 2009

7

amended due process complaint).) The ALJ incorporated the August 28,

8

2009 IEP meeting into his statement of District’s Issue No. 2 in his

9

Order Following Pre-Hearing Conference filed on November 24, 2009. Id.

10

at 608.

11

However, Plaintiffs did not object to District’s addition of

12

the August 28, 2009 IEP meeting to its Issue No. 2 before or during the

13

pre-hearing conference on November 23, 2009; in their motions in liminé

14

dated November 25, 27, and 29, 2009; or during the first day of the

15

administrative due process hearing, during which District’s counsel

16

described the August 28, 2009 IEP meeting in her opening statement and

17

two witnesses testified in detail about what occurred at that meeting.

18

(See Hr’g Trans. Nov. 23, 2009 (transcript of pre-hearing conference);

19

A.R. 617-54 & 666-69 (Plaintiffs’ motions in liminé); Hr’g Trans. 28:11-

20

29:7 (District’s opening statement); Barbaria Test., Hr’g Trans. 173:21-

21

181:14, 193:8-209:9, Nov. 30, 2009; Williams Test., Hr’g Trans. 236:2-

22

239:4, Nov. 30, 2009.)

23

Plaintiffs first objected to the introduction of evidence

24

concerning the August 28, 2009 meeting on the second day of the

25

administrative due process hearing. (Hr’g Trans. 8:2-11:10, Dec. 1,

26

2009.) After hearing oral argument regarding Plaintiffs’ objection, the

27

ALJ stated, in relevant part:

28

I’m going to amend the statement at issue . . . .
In my view, that does not change the issue. . . .
13

1

It will now read, “whether the District’s most
recent IEP offer constituted an offer of FAPE to
Student for the school year 2009-2010.” . . . [N]ot
only is it my memory that [Plaintiffs] did not
object to this at the pre-hearing conference, but
we had considerable evidence yesterday . . . to
which [Plaintiffs] could have objected on this
ground and did not.

2
3
4
5
6

(Hr’g Trans. 18:13-21, 19:3-12, Dec. 1, 2009.) The ALJ upheld this

7

ruling when he rendered his Decision. (See ALJ Decision 36 n.10 (denying

8

Plaintiffs’ motion for reconsideration concerning his ruling from the

9

bench).)

10

The California Code of Regulations, which implements the

11

IDEIA’s procedural safeguards concerning administrative due process

12

hearings, prescribes in relevant part:

13
14
15
16
17

The hearings conducted pursuant to this section
shall not be conducted according to the technical
rules of evidence and those related to witnesses.
Any relevant evidence shall be admitted if it is
the sort of evidence on which responsible persons
are accustomed to rely in the conduct of serious
affairs, regardless of the existence of any common
law or statutory rule which might make improper the
admission of such evidence over objection in civil
actions.

18
19

Cal. Code. Regs., tit. 5, § 3082(b). In addition, the IDEIA permits

20

amendment of a due process complaint with the ALJ’s permission or

21

consent of the opposing party. 20 U.S.C. § 1415(c)(2)(E).

22

Plaintiffs have not demonstrated that the ALJ exceeded his

23

authority under the California Code of Regulations or the IDEIA by

24

amending District’s Issue No. 2 to reflect the August 28, 2009 IEP

25

meeting. The evidence demonstrates that the August 28, 2009 IEP meeting

26

was relevant to the issue of whether District violated the IDEIA by

27

failing to develop an IEP that would provide Student with a FAPE for the

28

2009-2010 school year. Therefore, Plaintiffs have not demonstrated the

14

1

ALJ

erred

by

allowing

the

introduction

2

of

testimony

and

evidence

concerning the August 28, 2009 IEP meeting.

3

Further, Plaintiffs do not argue they were prejudiced by the

4

introduction of evidence concerning this issue; nor would the record

5

support such an argument, since Plaintiffs did not timely object to the

6

introduction of evidence concerning the August 28, 2009 IEP meeting and

7

Plaintiffs’

8

appropriateness of the IEP generated at the August 28, 2009 meeting.

9

(See Coutchié Test., Hr’g Trans. 63:15-94:22 & 126:12-131:22, Dec. 8,

10

2009; Torgesen Test., Hr’g Trans. 61:2-82:18 & 111:10-119:10, Dec. 9,

11

2009.)

witnesses

testified

extensively

regarding

the

12

c. Plaintiffs’ Requests for Default Judgment

13

Plaintiffs argue District “should have been precluded from

14

submitting a defense in the administrative case” and the ALJ should have

15

entered default judgment against District because District failed to

16

respond to Plaintiffs’ June 11, 2009 due process complaint within ten

17

days. (Opp’n 12-18.) The ALJ referred to this argument in his Decision

18

as the “sudden death argument,” because “Parents argued . . . that

19

[District’s]

20

[District’s] position in any litigation concerning Student before OAH.”

21

(ALJ Decision ¶ 159 (findings).)

delay

in

filing

a

response

meant

‘sudden

death’

to

22

Under the IDEIA, a district that receives a copy of a due

23

process complaint must, “within 10 days of receiving the complaint, send

24

to the parent a response that shall include . . . an explanation of why

25

the agency proposed

26

complaint; . . . a description of other options that the IEP Team

27

considered and the reasons why those options were rejected; . . . a

28

description of each evaluation procedure, assessment, record, or report

or refused to take the action raised in the

15

1

the agency used as the basis for the proposed or refused action; and

2

. . . a description of the factors that are relevant to the agency’s

3

proposal or refusal.” 20 U.S.C. § 1415(c)(2)(B).
The ALJ rejected the “sudden death argument” for the following

4
5

reasons:
a) A statute that says “send to the parent”
does not mean “file.” Since the statute only
requires a response to a parent if a prior written
notice has not been sent, its apparent purpose is
to ensure that parent is informed, not that
litigation is furthered.

6
7
8
9

b) An answer serves a central role in civil
litigation and is required by statute, court rule,
and decisional law, which authorize dismissal if an
answer is not filed. The response to a parent plays
no role in due process litigation, and an ALJ is
not authorized to act on a failure to send one.

10
11
12

c) No authority remotely supports the sudden
death argument, and [Plaintiffs] cited none.
Although an attorney may make a good faith argument
for change in the law, [Plaintiffs] did not make
such an argument, or advance any policy reason in
support of his claim.

13
14
15
16

d)
There
is
a
complete
and
adequate
administrative remedy in the IDEA for failure to
send a parent response. A parent my file an
administrative
complaint
with
the
California
Department of Education (CDE) . . . . Any
reasonable lawyer in [Plaintiffs’] position would
have felt obliged to offer at least some reason why
that remedy might be inadequate. [Plaintiffs] did
not make that attempt, or acknowledge . . . that he
was simultaneously pursing that remedy with CDE.

17
18
19
20
21

e) An administrative hearing under the [IDEIA]
is designed to be much less formal than a civil
case. A party whose complaint states a plausible
reasonably detailed claim under [the IDEIA] is
generally entitled to a hearing. The broad remedial
purpose of the [IDEIA] is to encourage sound
educational programming for disabled children, not
to set fatal procedural traps for the parties.

22
23
24
25
26
27

Id. ¶ 161.

28

//

16

Plaintiffs challenge the ALJ’s rejection of their “sudden

1
2

death

argument,”

arguing

the

IDEIA

“requires

a

detailed,

written

3

response within ten days, indicating the importance Congress gave to the

4

necessity of not just a response, but a timely and prompt response . . .

5

[and e]ntering default will give effect to the statute’s purpose[.]”

6

(Opp’n 18.) Plaintiffs argue Massey v. District of Columbia, 400 F.

7

Supp. 2d 66 (D.D.C. 2005), supports their argument. In Massey, the court

8

held plaintiffs were not required to exhaust their administrative

9

remedies under the IDEIA before filing a complaint in federal district

10

court because they demonstrated administrative exhaustion would be

11

futile. 400 F. Supp. 2d at 74. However, Massey is distinguishable, since

12

the plaintiffs in Massey did not seek to completely preclude the school

13

district from defending against their IDEIA claims as Plaintiffs do

14

here. (See A.R. 86-88 (Plaintiffs’ Motion for Summary Adjudication,

15

seeking judgment against District for failing to timely answer their due

16

process complaint).)

17

Further, “the [IDEIA] does not specify default as the penalty

18

for failure to serve an appropriate response to a Due Process Complaint

19

Notice.” Sykes v. District of Columbia, 518 F. Supp. 2d 261, 267 (D.D.C.

20

2007). “The purpose of the response requirement seeks to guarantee

21

meaningful parental participation in the student placement process.” Id.

22

“A default judgment would . . . subvert[] the administrative process and

23

[result in the] assign[ment of Student to] a placement without a full

24

examination of the record or his needs.” Id. Therefore, Plaintiffs have

25

not demonstrated the ALJ erred when he denied their repeated requests

26

for default judgment against District.

27

//

28

//

17

1

d. ALJ’s Award of Attorneys’ Fees

2

Plaintiffs argue the ALJ erred by awarding attorneys’ fees to

3

District as reimbursement for responding to Kevin Marchese’s repeated

4

assertions of the “sudden death argument.” (Opp’n 16.) District argues

5

attorneys’ fees were appropriate. (Def.’s Mot. for Summ. J. (“Mot.”)

6

33:14.)

7

The ALJ found “[Kevin Marchese’s] sudden death argument was

8

frivolous because it was totally and completely without merit [for the

9

reasons stated above].” (ALJ Decision ¶ 161 (findings).) The ALJ found

10

Kevin Marchese “knew the argument had no merit” when he argued it in

11

Plaintiffs’ second due process complaint, filed on July 23, 2009, since

12

the ALJ in the 2008 due process proceedings ruled that OAH hearing

13

officers did not have authority to enter default judgment. Id. ¶ 162(b).

14

The ALJ found that “[h]aving once lost the argument, any reasonable

15

attorney would have abandoned it[, but Kevin Marchese] . . . repeated

16

it, not waiting for rulings on early efforts before filing later ones.”

17

Id. ¶ 162(c).

18

The ALJ found Kevin Marchese “pursued the ‘sudden death

19

argument’” in the following filings: Plaintiffs’ second due process

20

complaint filed July 23, 2009; Plaintiffs’ motion to strike District’s

21

response to Plaintiffs’ first due process complaint notice, filed July

22

30, 2009; Plaintiffs’ motion for summary adjudication filed July 30,

23

2009;

24

insufficiency,

25

District’s motion to dismiss, filed August 30, 2009; and Plaintiffs’

26

request for clarification, which the ALJ treated as a motion for

27

reconsideration, filed September 28, 2009. Id.

28

//

Plaintiffs’
filed

opposition
August

brief
3,

2009;

18

to

District’s

Plaintiffs’

notice

opposition

of
to

1

The ALJ also found “[t]he pleadings for which [District] seeks

2

sanctions are part of a larger record in these matters of repeated,

3

unnecessary, and arguably frivolous filings, motions, and objections by

4

[Kevin Marchese] that substantially increased [District’s] litigation

5

costs.” Id. ¶ 162(d). The ALJ found “[t]he preponderance of the evidence

6

showed that circumstances exist to support the inference that [Kevin

7

Marchese] made and pursued the sudden death argument for an improper

8

purpose . . . [and] that he acted solely with the intent to harass

9

[District] by filing voluminous, unnecessary, and frivolous pleadings,

10

thereby causing [District] to incur substantial additional litigation

11

costs.” Id.

12

The ALJ specifically found:

13

Having run up [District’s] legal bills, [Kevin
Marchese] attempted to exploit those expenses to
obtain victory in the litigation. On October 1,
2009, he wrote to [District’s] School Board,
stating that the two issues OAH had dismissed “will
be submitted to other agencies for investigation.”
He then wrote:

14
15
16
17
18
19
20

Another prediction we made has also come true.
It is clear that [District] has used more time
and dollars than it would have cost for a year
of services for our son. This is bad policy
and can be stopped by the Board. There are
several investigations by both State and
Federal entities pending. The Office of Civil
Rights is investigating . . . .

21
22
23
24
25
26
27
28

In his letter to the School Board, [Kevin Marchese]
then threatened that Parents would “submit several
issues for criminal investigation”, and predicted
that the hearing before OAH would take as many as
20 days and involve 37 witnesses, which it did not.
He reiterated that “[w]in or lose[,] the costs
involved will exceed an additional year of services
for our son”, and stated that [District’s]
continuing resistance would be “an outrage to
taxpayers” and “fiduciary irresponsibility” on the
part of the Board. He closed by stating that the
dispute
“may
take
years
to
resolve.”
The
unmistakable meaning of [Kevin Marchese’s] letter
was that Parents had already caused [District] to
spend an inordinate amount of money, and that, if
19

2

[District] did not abandon its position, Parents
would ensure that the cost of resistance would be
greater still.

3

Id. ¶ 162(e)-(f). The ALJ awarded District $3,880 in attorneys’ fees as

4

reimbursement for “opposing Student’s frivolous filings[.]” Id. ¶ 168;

5

id. at p.50.

1

Plaintiffs argue “the subsequent due process action filed in

6
7

July

2009

could

not

have

been

frivolous

by

any

stretch

of

the

8

imagination.” (Opp’n 17). However, for the stated reasons by the ALJ,

9

Plaintiffs’ “sudden death argument” lacks merit. Therefore, Plaintiffs

10

have not demonstrated the ALJ’s factual finding that Kevin Marchese

11

repeatedly raised the “sudden death argument” for an improper purpose

12

was clearly erroneous. Accordingly, the ALJ’s award of attorneys’ fees

13

is affirmed.

14

e. ALJ’s Alleged Bias

15

Plaintiffs argue the ALJ was biased. (Opp’n 17.) “ALJs and

16

other similar quasi-judicial administrative officers are presumed to be

17

unbiased.” Haseltine v. Astrue, 668 F. Supp. 2d 1232, 1234 (N.D. Cal.

18

2009) (citation omitted). To show bias, “Plaintiff[s] must rebut this

19

presumption by showing a conflict of interest or some other specific

20

reason for disqualification[;] [j]udicial rulings alone almost never

21

constitute evidence of bias.” Id. Further, “Plaintiff[s] must show that

22

the ALJ’s actions were ‘so extreme as to display clear inability to

23

render fair judgment.’” Id. (quoting Rollins v. Massanari, 261 F.3d 853,

24

858 (9th Cir. 2001)).

25

Plaintiffs argue the “ALJ’s decision that [Kevin Marchese’s

26

repeated assertion of the ‘sudden death argument’ was] frivolous and

27

‘intended solely to harass’ . . . suggests an objectively discernable

28

bias by the ALJ.” (Opp’n 17.) However, the ALJ’s rejection of the

20

1

“sudden death argument,” is upheld under the preponderance of the

2

evidence standard. Plaintiffs also argue in a footnote that the ALJ or

3

the “transcription clerk’s” alteration of the administrative record “to

4

reflect the Plaintiff/Party-Parent/Father’s professional address and

5

status as an attorney (which was never given)” is evidence of bias.

6

(Opp’n

7

supporting this argument.

17

n.1.)

However,

Plaintiffs

have

not

provided

evidence

8

Plaintiffs have not demonstrated “that the ALJ’s actions were

9

so extreme as to display clear inability to render fair judgment.”

10

Haseltine, 668 F. Supp. 2d at 1234. Therefore, Plaintiffs have failed to

11

show the ALJ was biased.
2. Substantive Issues

12
13

a. Right to Reassess Student

14

The

ALJ

academic

ordered

that

abilities,

District

allowed

reassess

Student’s

16

Student’s educational and related services needs warrant a reevaluation

17

of Student, as proposed by [District] in its April 2009 assessment plan

18

and related documents[.]” (ALJ Decision ¶ 5 (conclusions).) The ALJ

19

based this conclusion on his findings that “[Student] ha[d] not been

20

instructed or tested in any academic subject since August 2008, so there

21

[were] none of the usual test scores, report cards, . . . teacher

22

reports[,] . . . [or other] kinds of academic information that usually

23

supplement or substitute for assessments”; and “[t]he most recent

24

assessment

25

(findings). ALJ based his finding that the most recent assessment

26

information was obsolete on the testimony of both parties’ expert

27

witnesses.

28

//

about

Student

21

District

to

15

information

since

was

[was]

“demonstrated

obsolete.”

Id.

that

¶

10

Plaintiffs

1

do

not

challenge

this

portion

of

the

ALJ’s

2

Decision. However, the ALJ accurately described the relevant portions of

3

the witnesses’ testimony, and a preponderance of the evidence supports

4

his findings and conclusions concerning the need for reassessment.

5

b. Procedural Compliance With the IDEIA

6

Plaintiffs argue District did not make a valid IEP offer for

7

the 2009-2010 school year since it failed to comply with IDEIA’s

8

procedural requirements. Plaintiffs specifically argue District failed

9

to make a valid IEP offer since it failed to deliver a written IEP offer

10

by June 5, 2009 as it promised; and the August 28, 2009 IEP meeting was

11

untimely and therefore unlawful. (Pls.’ Opp’n (“Opp’n”) 6-7, 11, 19-21;

12

Pls.’ First Am. Compl. (“FAC”) ¶¶ 74(F) & (J).) Since Plaintiffs do not

13

challenge

14

procedural

15

discussed below. However, the court has reviewed the hearing testimony

16

and the administrative record and finds that a preponderance of the

17

evidence supports the ALJ’s conclusions.

18

the

ALJ’s

compliance

remaining

conclusions

with

IDEIA,

the

those

concerning

District’s

conclusions

are

not

i. Failure to Deliver IEP Offer by June 5, 2009

19

Plaintiffs argue that at the conclusion of the May 28, 2009

20

IEP meeting, Barbaria and District’s then-legal counsel, Jacqueline

21

McHaney, agreed to deliver a written IEP offer to Rosenberg on June 5,

22

2009, but failed to do so. (Opp’n 6.) Plaintiffs argue that by promising

23

to deliver the May 28, 2009 IEP offer by June 5, 2009, District agreed

24

to provide the IEP offer on shortened time and thus “waive[d the

25

opportunity to] . . . deliver an offer of FAPE by the commencement of

26

the academic year[,]” August 10, 2009. Id. at 19. Plaintiffs further

27

argue that since the May 28, 2009 IEP offer was not delivered by June 5,

28

2009, a valid “[IEP] offer was never made under the IDEA.” Id. at 7.

22

1

Plaintiffs specifically argue an “agreement to shorten a

2

statutory time within which to provide or fulfill a particular statutory

3

obligation (i.e., an agreement to provide an offer of FAPE by June 5,

4

2009, instead of by the commencement date of . . . school on August 10,

5

2009) is enforceable as an agreement” under California Civil Code

6

section 3268 (“section 3268”). (Opp’n 7.) District counters that section

7

3268 only governs “obligations arising from ‘particular transactions’

8

including consignment of fine art, credit sales, and recording artist

9

contracts[.]” (Def.’s Reply (“Reply”) 4:23-5:1.)

10

Section 3268 states:

11

15

Except where it is otherwise declared, the
provisions of the foregoing titles of this part, in
respect to the rights and obligations of parties to
contracts, are subordinate to the intention of the
parties, when ascertained in the manner prescribed
by the chapter on the interpretation of contracts;
and the benefit thereof may be waived by any party
entitled thereto, unless such waiver would be
against public policy.

16

Cal. Civ. Code § 3268 (emphasis added). Section 3268 only applies to

17

“Part

18

Particular Transactions,” none of the titles in which concern special

19

education law. Id. Further, all that “[t]he [IDEIA] and California

20

Education Code require [is] that . . . [District] have in effect an IEP

21

for each child with a disability” “at the beginning of each school

22

year[.]” Patterson, 626 F.3d at 460 (emphasis added) (citing 20 U.S.C.

23

§ 1414(d)(2)(A)); Cal. Educ. Code § 56344(b). Therefore, Plaintiffs have

24

not demonstrated District violated the IDEIA’s procedural requirements

25

when it failed to deliver a written IEP by June 5, 2009, or that the

26

ALJ’s finding should be reversed.

27

//

28

//

12
13
14

4”

of

the

Civil

Code,

entitled

23

“Obligations

Arising

from

1

ii. Procedural Validity of August 28, 2009 IEP Offer

2

Plaintiffs argue “[a]ny offer of [an IEP] after [the first day

3

of the 2009-2010 school year, August 10, 2009], would be untimely and

4

therefore unlawful[,]” since the “[IDEIA] requires offers of FAPE to be

5

in place prior to the commencement of the upcoming academic year[.]”

6

(Opp’n 20 (citing 34 C.F.R. § 300.323).)

7

The [IDEIA] requires a school district to have an IEP in

8

effect for each student with a disability “[a]t the beginning of each

9

school year.” 20 U.S.C. § 1414(d)(2)(A). “Compliance with the [IDEIA]

10

procedures is essential to ensuring that every eligible child receives

11

a FAPE[.]” Vashon Island, 337 F.3d at 1129 (internal quotation marks and

12

citation omitted).

13
14
15
16
17

Not every procedural violation, however, is
sufficient to support a finding that the child in
question was denied a FAPE. Technical deviations,
for example, will not render an IEP invalid. On the
other hand, procedural inadequacies that result in
the loss of educational opportunity, or seriously
infringe the parents’ opportunity to participate in
the IEP formulation process, or that caused a
deprivation of educational benefits, clearly result
in the denial of a FAPE.

18
19

Amanda J. ex rel. Annette J. v. Clark Cnty. Sch. Dist., 267 F.3d 877,

20

892 (9th Cir. 2001) (internal quotation marks and citations omitted).

21

The ALJ concluded that “District failed to make a timely offer

22

of a FAPE for Student for the [2009-2010 school year], but its delay in

23

doing so did not deny Student a FAPE . . . [since] he remained in the

24

placement required by the [2008 Settlement Agreement].” (ALJ Decision ¶

25

23 (conclusions).) The ALJ further concluded “Parents’ participatory

26

rights were unaffected because they had only a single placement in mind;

27

had no interest in assisting [District] to develop another proposal;

28

never participated in that effort when they had opportunities to do so;

24

1

and

were

2

withholding needed information.” Id.

5
6
7
8
9
10
11

the

development

of

[District’s]

proposal

findings:
63. The preponderance of the evidence showed that
Parents were unwilling to participate in the August
5, 2009 IEP meeting for reasons having nothing to
do with adequate notice. Throughout these events
Parents
have
steadfastly
maintained
that
continuation of Student’s placement with [Coutchié]
is the only program that can provide him a FAPE for
[the] 2009-2010 [school year]. Parents remain
adamant in their conviction that Student is not
ready to return to public school or be exposed to
the usual curriculum of middle school until his
reading approaches grade level, and that for now
his education should concentrate solely on that
goal.

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

by

The ALJ based these conclusions on the following factual

3
4

obstructing

64. Accordingly, at all times relevant here,
Parents have been unwilling to cooperate with the
District in the development of any offer of a FAPE
that competes with their own vision of what is
required. Parents have had no interest in helping
the District develop any offer that would separate
Student from [Coutchié] or return him to public
school, and have actively obstructed that effort by
denying
[District]
useful
information
about
Student’s present levels of academic performance.
65. The stated purpose of the August 5, 2009 IEP
meeting was to finalize the District’s offer of a
FAPE. Parents knew or suspected, from the draft
sent to them on July 27, 2009, that the offer would
propose that Student return to public school. The
evidence showed that Parents avoided attending the
meeting, giving various explanations of their
unavailability to the District. Notwithstanding the
inadequate notice of the August 5 meeting, Parents
could have attended the August 5, IEP meeting but
chose not to attend.
66. On August 4, 2009, Parents wrote in a letter to
[District] that the most important reason they
would not attend the August 5 meeting was that
Parents and [District] were in litigation; and that
they “[would] be denied due process rights and
sustain harm if [District] attempts to schedule an
IEP meeting while due process litigation is
pending.”

28

25

1
2
3
4
5
6
7

67. Parents’ limited participation in the May 28
and August 28, 2009 IEP meetings confirmed their
unwillingness to participate in developing any IEP
offer that competed with their own position. On May
28, Parents argued extensively for continued
placement with [Coutchié], but showed no interest
in discussing any alternative to that placement.
District team members explained why they believed
Student should return to school and receive a full
curriculum but there is no evidence that Parents
responded to those views. And at the August 28,
2009 IEP meeting, Parents rebuffed all attempts to
bring them into a discussion of [District’s]
proposal on the ground that litigation was pending.

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22

68. Parents’ hostility to the development of a
competing IEP offer is most apparent in their
concealment from the District of the existence and
results of the assessments [Coutchié] conducted in
late April and early May 2009, and their
simultaneous refusal to authorize assessments by
[District]. When [Williams] handed [Kevin Marchese]
an assessment plan in mid-April, she explained that
her purpose was to obtain current information for
use in drafting new goals for Student. Parents
never informed the District that [Coutchié] would
conduct, or had conducted, any assessments, and
refused to sign any assessment plan [District
presented]. At the May [28], 2009 IEP meeting,
District staff reiterated the need for new
assessments. Throughout that discussion, Parents,
[Coutchié], and [Rosenberg] remained silent about
the assessments [Coutchié] had just conducted.
69. Thus the evidence showed that Parents were
entrenched in their position that there was only
one appropriate placement for Student (with
[Coutchié]); they declined to cooperate with the
development of any competing proposal; they evaded
attending any IEP meeting addressing such a
proposal; they refused to discuss [District’s]
proposal; and they actively obstructed [District’s]
proposal by withholding information about Student’s
then-present levels of academic performance.

23
24

(ALJ Decision ¶¶ 62-69 (findings).)

25

The ALJ accurately described the relevant evidence and witness

26

testimony. A preponderance of the evidence supports the ALJ’s conclusion

27

that District’s failure to have an IEP in effect prior to the first day

28

of the school year did not deny Student a FAPE, since Student remained

26

1

in Parents’ preferred placement with Coutchié, and District cured the

2

deficiencies in the IEP offer developed at the procedurally invalid

3

August 5, 2009 IEP meeting by holding the August 28, 2009 IEP meeting,

4

which complied with IDEIA procedures. An independent review of the

5

record demonstrates that a preponderance of the evidence also supports

6

the ALJ’s conclusion that Parents had a meaningful opportunity to

7

participate in the IEP process at the August 28, 2009 IEP meeting, but

8

chose not to participate because of the pending litigation and their

9

dissatisfaction with the IEP offer District was developing.

10

c. Substantive Compliance With the IDEIA
i. Goals

11
12

Plaintiffs allege in their FAC that “District’s offer of FAPE

13

failed to provide objectively measurable goals called for under the

14

[IDEIA.]” (FAC ¶ 74(I).) District argues “the ALJ’s . . . finding that

15

the IEP goals were appropriate” “should [be] uph[e]ld,” since his

16

findings were “supported by the administrative record[.]” (Mot. 26:10-

17

29:18.)
Under

18

the

annual

IDEIA,

goals,

an

IEP

including

must

contain

academic

and

a

“statement

functional

of

19

measurable

goals,

20

designed to . . . meet the child’s needs that result from [his]

21

disability[.]” 20 U.S.C. § 1414(d)(1)(A)(i)(II). An IEP must also

22

contain a statement of the “student’s present level of performance[,]

23

. . . which provides a benchmark for measuring the student’s progress

24

toward the goals stated in the IEP.” Settlegoode v. Portland Pub. Schs.,

25

371 F.3d 503, 508 n.1 (9th Cir. 2004).

26

The ALJ concluded that “the proposed goals in the IEP offer

27

met Student’s needs and would have allowed him to make meaningful

28

27

1

progress.”

(ALJ

Decision

¶

35

(conclusions).)

The

ALJ

based

2

his

conclusion on numerous factual findings, including the following:
The only significant defect in the offered goals
was that some of them lacked current information on
the levels of Student’s skill and achievement,
which was in part a consequence of Student’s
absence from a campus. It was also, in part, a
consequence of Parents[] withholding . . .
[Coutchié’s] spring 2009 assessment data, coupled
with their refusal to allow new assessments by the
District. The District is not responsible for those
shortcomings.

3
4
5
6
7
8

. . . The evidence showed that all of the goals in
the offered IEP were directly related to Student’s
needs. Their baselines were derived from the latest
information furnished by [Coutchié] if available,
or from [District’s] last known measurements. . . .
The
goals
were
reasonable,
measurable,
and
contained adequate baselines based on the limited
information [District] had available to it at the
time the IEP was drafted. The goals complied with
all legal requirements.

9
10
11
12
13
14

Id. ¶¶ 139-40 (findings).

15

Plaintiffs do not argue that there are any specific defects in

16

the ALJ’s Decision that require this portion of the ALJ’s Decision to be

17

reversed. An independent review of the record demonstrates that a

18

preponderance of the evidence supports the ALJ’s conclusion that goals

19

complied

20

conclusion

21

educational policy[,]” to which this court gives “due weight[.]” Van

22

Duyn, 502 F.3d at 817.

23

with

the

IDEIA’s

regarding

the

requirements.

goals

represents

In

addition,

his

“notions

the

ALJ’s

of

sound

ii. Closing the Gap

24

Plaintiffs allege in their FAC that “District’s offer of FAPE

25

failed to provide . . . any plan to close the gap between Student’s

26

present levels of performance [in reading] and [the] goals[.]” (FAC ¶

27

74(I).) District argues “[t]he ALJ’s finding that the IEP would allow

28

28

1

Student to make educational progress is supported by the administrative

2

record and should be affirmed.” (Mot. 29:20-21.)

3

“While a student’s IEP must be reasonably calculated to

4

provide him . . . with educational benefit, school districts are

5

required to provide only a ‘basic floor of opportunity.’” Fresno, 626

6

F.3d

7

‘appropriate’ public education does not mean the absolutely best of

8

‘potential-maximizing’

9

(internal quotation marks and citation omitted). However, “Congress did

10

not intend that a school system could discharge its duty under the

11

[IDEIA] by providing a program that produces some minimal academic

12

advancement, no matter how trivial.” Id. (internal quotation marks and

13

citation omitted).

at

439

(quoting

Rowley,

education

458

for

U.S.

the

at

200–01).

individual

“Thus,

child.”

14

Id.

The ALJ found, in relevant part:

15

an

The fundamental dispute between the parties relates
to the rate at which Student should be expected to
progress in language arts. Parents believe that
Student
cannot
have
access
to
grade-level
curriculum until his reading [fluency] is brought
up to, or near, grade level; that all other
subjects should be put aside until he does so; and
that Student’s reading will not improve adequately
with less than three hours a day of individual
instruction. [District] believes that two hours a
day of individual reading instruction is enough to
enable Student to access the rest of the middle
school curriculum, which he should now be doing.
The opinion evidence was in conflict.

16
17
18
19
20
21
22
23

(ALJ Decision ¶ 82 (findings).) The ALJ discussed the hearing testimony

24

and the applicable law and resolved the conflict in opinion in favor of

25

District.

26

The ALJ specifically found that “[s]everal District witnesses

27

testified credibly that the language arts (reading and writing) portion

28

of [District’s] offer is appropriate.” Id. ¶ 83. Barbaria testified that

29

1

the IEP reflected District’s view that “[Student] should be allowed

2

. . . to have some contact with . . . students who . . . were not

3

disabled . . . [and] access to science and math and some of the other

4

programs . . . available at the school site.” (Barbaria Test., Hr’g

5

Trans. 178:16-21, Nov. 30, 2009.) Barbaria also testified there were

6

other Students in the school district “who [were] reading below grade

7

level

8

progressing.” Id. at 205:15-18.

and

they

Cristo

9

[were]

functioning,

testified

Student

.

.

could

.

learning,

make

[and]

progress

.

.

.

in reading

10

fluency if his one-on-one reading instruction was reduced from three

11

hours per day to two hours per day, since one-on-one reading instruction

12

provides diminishing returns for any instruction exceeding two hours per

13

day. (Cristo Test., Hr’g Trans. 202:22-203:9, Dec. 8, 2009.) She also

14

testified that two hours per day of one-on-one instruction would allow

15

Student

16

“allowing some time for him to meet his other needs, [such as] math

17

. . . [and] science.” Id. at 202:5-9 & 203:10-20. The ALJ found Dr.

18

Cristo testified “persuasively and without contradiction.” (ALJ Decision

19

¶ 84 (findings).)

to

make

“appropriate

progress”

in

reading

fluency

while

20

Ludwig, Student’s proposed reading instructor under District’s

21

IEP offer, also testified that two hours per day of individual reading

22

instruction would allow Student to make progress in reading fluency,

23

“bridge any gaps,” and “transition . . . into core curriculum areas.”

24

(Ludwig Test., Hr’g Trans. 294:2-295:12, Dec. 1, 2009.) Williams also

25

testified that two hours per day of individual instruction in reading

26

was sufficient. (Williams Test., Hr’g Trans. 235:1-6, Nov. 30, 2009.)

27

The ALJ also found “[t]wo professionals testified that the

28

reading portion of [District’s] offer was inadequate.” (ALJ Decision ¶

30

1

90 (findings).) Coutchié testified that two hours of individual reading

2

instruction per day would not allow Student to progress at a rate that

3

would allow him to read at grade-level within a year or two. (Coutchié

4

Test., Hr’g Trans. 77:17-19, Dec. 8, 2009.) However, the ALJ did “not

5

give[] [Coutchié’s opinion] any weight.” (ALJ Decision ¶ 91 (findings).)

6

The ALJ found “[Coutchié] has a significant financial interest in the

7

failure of [District’s] IEP offer and the continuation of her own

8

tutoring of Student[, since s]he tutors him three hours every school day

9

at the rate of $90 an hour[.]” Id. The ALJ also found “[Coutchié] was

10

strongly biased in favor of Parents and against [District, and] . . .

11

[h]er animus toward [District] was evident in her testimony.” Id. ¶ 92.

12

The ALJ further found:
[Coutchié’s] bias is also evident from her conduct.
She proposed to Parents that she, rather than
anyone selected by [District] conduct the academic
assessments
[District]
wanted
[Williams]
to
conduct. She deceptively billed those assessments
to [District] in a way that ensured she would be
paid for them but [District] would not know that
she had conducted them. Shortly before the May 28,
2009 IEP meeting, [Coutchié] received an email from
[Barbaria] asking for “written reports” about
Student, but [Coutchié] did not mention the results
of her assessments in her response. Nor did she
reveal them at the May 28, 2009 IEP meeting, where
District team members spoke of their need for the
assessments she had just conducted. She continued
to withhold the results from [District] until
compelled to produce them under subpoena. . . .
This behavior evidences a hostility to [District]
and a willingness to manipulate information that
make her testimony unreliable.

13
14
15
16
17
18
19
20
21
22
23
24

Id. ¶ 93.

25

Torgesen testified, inter alia, that the IEP would not allow

26

Student to read at grade level by the end of the eighth grade. (Torgesen

27

Test., Hr’g Trans. 68:16-70:9, Dec. 9, 2009.) Torgesen also testified

28

that if “the goal is to continue to accelerate his development[,] . . .

31

1

[i]t doesn’t seem to . . . [m]ake any sense to switch him from a known

2

intervention—one that we know works . . . —to one [about] which we have

3

no evidence that [it] will work.” Id. at 82:8-14.

4

The ALJ found that Torgesen’s “testimony did not suffer from

5

any of the defects of [Coutchié’s testimony, but h]is . . . opinions

6

were

7

(findings).) The ALJ found:

8
9
10
11

not

persuasive

for

different

reasons.”

(ALJ

Decision

[Torgesen] admitted his view [that Student should
be able to read at grade-level by the end of eighth
grade] reflected a preference, and agreed that his
preference was not the only way to provide Student
a FAPE. While reasonable people may hold that
belief, they may also hold the opposite view.
[District]
was
not
required
to
agree
with
[Torgesen’s] perspective.

12

15

[Torgesen] was concerned only with progress in
reading. He discounted Student’s need to learn such
subjects as math and science as less important than
reading. However, California requires a broader
range of instruction and curriculum in middle
school and for graduation.

16

. . .

17

[Torgesen] testified that [Coutchié’s] intervention
should be continued because it was ‘a Cadillac’ and
the ‘best possible’ program for Student. But a
district is not obliged under the IDEA to provide
Student with the best possible program; it is
required to provide a program that meets a
student’s needs and allows him an opportunity to
make meaningful progress.

13
14

18
19
20
21
22
23
24
25
26
27
28

[Torgesen] did not testify that [District’s] offer
was inappropriate, or that it did not address
Student’s unique needs. He did not testify that two
hours a day of individual reading instruction by a
qualified teacher was not enough to allow Student
to make meaningful progress under [District’s]
offer. He did not testify that Student could not
access the other elements of the middle school
curriculum unless he achieved a rate of progress in
reading
as
rapid
as
[Torgesen]
preferred.
Therefore, even taken at face value, [Torgesen’s]
testimony did not establish that the reading
element of [District’s] offer would fail to provide
Student a FAPE.

32

¶

95

1

Id. ¶¶ 97-102. The ALJ concluded:
District’s . . . offer of a FAPE . . . addressed
all of Student’s unique needs, was reasonably
calculated to allow him to make meaningful
educational progress, and therefore would provide
him a FAPE. The two hours a day of one-to-one
language arts instruction would be enough to allow
Student to make substantial progress. Under the
offered IEP, he would be able to access other parts
of the general curriculum. . . . District was not
required to ensure that Student made even faster
progress in language arts at the expense of all the
other benefits of middle school.

2
3
4
5
6
7
8
9

Id. ¶¶ 34-35 (conclusions).

10

The ALJ accurately described in his Decision each witness’s

11

hearing testimony. The court defers to the ALJ’s credibility findings,

12

since Plaintiffs have not demonstrated that the “extrinsic evidence in

13

the record justif[ies] a contrary conclusion[.]” Fremont, 545 F. Supp.

14

2d

15

demonstrates that a preponderance of the evidence supports the ALJ’s

16

conclusion

17

meaningful progress in reading while accessing other areas of the core

18

curriculum.

at

1003.

In

that

addition,

District’s

an

IEP

independent

offer

would

review

allow

of

the

Student

record

to

make

19

Further, the ALJ’s conclusion that “District was not required

20

to ensure that Student made even faster progress in language arts at the

21

expense of all the other benefits of middle school” reflects his

22

“notions of sound educational policy,” to which this court must give

23

“due

24

(conclusions).

25

weight.”

Van

Duyn,

502

F.3d

at

817;

ALJ

Decision

¶

35

II. DISTRICT’S SUMMARY JUDGMENT MOTION

26

District seeks summary judgment on the remaining claims in

27

Plaintiffs’ FAC, which concern Student’s education during the 2008-2009

28

and 2009-2010 school years. Plaintiffs allege in their remaining claims

33

1

that the 2008 Settlement Agreement and IEP required District to provide

2

math instruction, and District breached the 2008 Settlement Agreement

3

(Eleventh claim) and violated § 504 (Third claim) by failing to provide

4

math instruction during the 2008-2009 school year. Plaintiffs also

5

allege District discriminated and retaliated against Plaintiffs in

6

violation of state and federal laws, including § 504, by failing to

7

consistently and timely pay Coutchié (Fourth claim); altering the 2008

8

IEP after Parents signed it (Fifth claim); placing Student in a sixth

9

grade P.E. class during his seventh grade year (Sixth claim); advising

10

Plaintiffs it would cease funding Coutchié’s services on March 15, 2010

11

(Seventh claim); excluding Student from extra-curricular activities

12

(Eighth claim); failing to prevent peer harassment of Student (Ninth

13

claim); manipulating the IEP process (Tenth claim); and denying Student

14

a FAPE (Twelfth and Thirteenth claims).

15

A. Summary Judgment Standard

16

A party seeking summary judgment bears the initial burden of

17

demonstrating the absence of a genuine issue of material fact for trial.

18

Celotex

19

‘material’ when, under the governing substantive law, it could affect

20

the outcome of the case.” Thrifty Oil Co. v. Bank of Am. Nat. Trust and

21

Sav. Ass’n, 322 F.3d 1039, 1046 (9th Cir. 2003) (quoting Anderson v.

22

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). An issue of material

23

fact is “genuine” when “the evidence is such that a reasonable jury

24

could return a verdict for the nonmoving party.” Id.

25
26
27
28

Corp.

v.

Catrett,

477

U.S.

317,

323

(1986).

“A

fact

is

When a defendant is the movant for summary judgment on one or
more of a plaintiff’s claims,
[the defendant] has both the initial burden of
production and the ultimate burden of persuasion on
[the motion]. In order to carry its burden of
production, the [defendant] must either produce
34

evidence negating an essential element of the
[plaintiff’s claim] or show that the [plaintiff]
does not have enough evidence of an essential
element to carry its ultimate burden of persuasion
at trial. In order to carry its ultimate burden of
persuasion on the motion, the [defendant] must
persuade the court that there is no genuine issue
of material fact.

1
2
3
4
5
6

Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Cos., Inc., 210 F.3d 1099,

7

1102 (9th Cir. 2000) (citations omitted). If the moving party’s initial

8

burden is satisfied, “the non-moving party must set forth, by affidavit

9

or as otherwise provided in [Federal] Rule [of Civil Procedure] 56,

10

specific facts showing that there is a genuine issue for trial.” T.W.

11

Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630

12

(9th Cir. 1987) (citation and internal quotation marks omitted). The

13

“non-moving plaintiff cannot rest upon the mere allegations or denials

14

of the adverse party’s pleading but must instead produce evidence that

15

sets forth specific facts showing that there is a genuine issue for

16

trial.” Estate of Tucker ex rel. Tucker v. Interscope Records, Inc., 515

17

F.3d 1019, 1030 (9th Cir. 2008) (citation and internal quotation marks

18

omitted).

19

Further, Local Rule 260(b) requires:

20

Any party opposing a motion for summary judgment or
summary adjudication [must] reproduce the itemized
facts in the [moving party’s] Statement of
Undisputed Facts and admit those facts that are
undisputed and deny those that are disputed,
including with each denial a citation to the
particular portions of any pleading, affidavit,
deposition, interrogatory answer, admission, or
other document relied upon in support of that
denial.

21
22
23
24
25
26

If

the

nonmovant

does

not

“specifically

27

supported] facts identified in the [movant’s] statement of undisputed

28

facts,” the nonmovant “is deemed to have admitted the validity of the

35

.

.

.

[controvert

duly

1

facts contained in the [movant’s] statement.” Beard v. Banks, 548 U.S.

2

521, 527 (2006).
Because a district court has no independent duty to
scour the record in search of a genuine issue of
triable fact, and may rely on the nonmoving party
to identify with reasonable particularity the
evidence that precludes summary judgment, . . . the
district court . . . [is] under no obligation to
undertake a cumbersome review of the record on the
[nonmoving party’s] behalf.

3
4
5
6
7
8

Simmons v. Navajo Cnty., Arizona, 609 F.3d 1011, 1017 (9th Cir. 2010)

9

(citation and internal quotation marks omitted).

10

Evidence must be viewed “in the light most favorable to the

11

non-moving party,” and “all reasonable inferences” that can be drawn

12

from the evidence must be drawn “in favor of [the non-moving] party.”

13

Nunez v. Duncan, 591 F.3d 1217, 1222-23 (9th Cir. 2010).

14

B. District’s Objections
District argues “each of [Plaintiffs’] exhibits [in support of

15
16

their

opposition

17

authenticated and [is] properly excluded on that basis.” (Reply 19:10-

18

11.) Plaintiffs’ exhibits are comprised of pages from the 2008 IEP;

19

Student’s standardized test results; letters and emails between Parents

20

and District, including emails that District also submitted as evidence

21

in support of its motion; and a police report describing battery of

22

Student on school grounds. (Pls.’ Exs. in Opp’n.) Since the challenged

23

documents

24

administrative record, or from a government agency, District has not

25

demonstrated that the documents should be excluded for purposes of this

26

motion. See Orr v. Bank of Am., 285 F.3d 764, 777 n.24 (9th Cir. 2002)

27

(“[Rule 56] does not require that all documents be authenticated through

28

personal knowledge when submitted in a summary judgment motion. For

are

to

the

summary

communication

judgment

between

36

the

motion]

is

parties,

not

part

properly

of

the

1

instance, documents attached to an exhibit list in a summary judgment

2

motion [may] be authenticated by review of their contents if they appear

3

to be sufficiently genuine.”); Alexander Dawson, Inc. v. N.L.R.B., 586

4

F.2d 1300, 1302 (9th Cir. 1978) (“The content of a document, when

5

considered with the circumstances of its discovery, is an adequate basis

6

for . . . admitting it into evidence.”). Therefore, these documents are

7

not excluded.

8

District filed numerous additional objections to evidence

9

Plaintiffs filed in support of their opposition brief. District also

10

filed an objection to Plaintiffs’ Response to District’s Statement of

11

Undisputed

12

information that are not material to decision on the motion; therefore,

13

the merits of those objections need not be reached.

14

C. Relevant Facts1

15

Facts.

However,

these

objections

concern

evidence

and

1. Interference With the 2008 Settlement Agreement and IEP

16

The 2008 Settlement Agreement required District to contract

17

with an independent reading specialist and fund “fifteen (15) hours per

18

week of direct one-to-one reading intervention services to [Student]”

19

for the 2008-2009 school year. (A.R. 70-71.) District and Coutchié did

20

not enter into a contract for the 2008-2009 school year. (Coutchié

21

Test., Hr’g Trans. 116:8-1, Dec. 8, 2009.) District failed to timely pay

22

Coutchié on several occasions during the school year, and Parents paid

23

her instead. (L. Marchese Dep. 48:19-51-23.) However, by July 2009,

24

District had paid for all of Coutchié’s services for the 2008-2009

25
26
27
28

1

Both parties inaccurately describe evidence and assert
legal conclusions as “uncontroverted facts” in their statements
of undisputed and additional facts. Therefore, the facts in this
section that do not come from the parties’ statements of
undisputed and additional facts are taken from the evidence and
are not controverted by other evidence in the record.
37

1

school year by paying her directly and reimbursing Parents for amounts

2

they paid. Id. at 51:24-52:15.
2. Peer Harassment

3
4

Student experienced five incidents of peer harassment on

5

school grounds between December 8, 2008 and May 13, 2009. (Pls.’ Exs. in

6

Opp’n, Ex. G.) Lyndi Marchese and Laura Benjamin (“Benjamin”), Student’s

7

P.E. teacher, communicated by email concerning the first four incidents.

8

Id.

9

On December 8, 2008, Lyndi Marchese sent an email to Benjamin

10

stating that a student named “Fender” “called [Student] ‘stupid’ and

11

asked [him several times] to tell him what disability he has.” (Pls.’

12

Exs. in Opp’n, Ex. G.) Lyndi Marchese also stated Fender hit Student

13

when he did not answer Fender’s questions. Id. Benjamin stated in a

14

reply email the same day that she would “keep an eye on the situation

15

and intervene if necessary.” Id.

16

On January 7, 2009, Benjamin sent an email to Lyndi Marchese

17

concerning an incident that occurred the day before involving Student

18

and two other students. Id. Benjamin stated in the email that she spoke

19

to the counselor about the incident and the counselor intended to meet

20

with the two other students. Id. Benjamin also stated she and another

21

teacher, Mr. Coble, spoke to the two other students “about bullying,

22

disrespect etc.” Id. Benjamin further stated that the two other students

23

would not be allowed to work together in a group or with Student in the

24

future. Id. Lyndi Marchese responded in an email to Benjamin the same

25

day, stating:

26
27
28

I really appreciate all that you did in regard to
yesterday!!! Mr. Coble had a wonderful relationship
with our older son and was one of his favorite
teachers. . . . I get so frustrated with this
“icky” behavior that some kids demonstrate. . . .
We appreciate all the consideration you gave to the
38

situation. . . . Again, thank you for all that you
have done and we feel fortunate to have such a
great teacher for [Student].

1
2
3

Id.

4

On January 8, 2009, Lyndi Marchese sent an email to Benjamin

5

describing an incident that occurred in the locker room that day, and

6

stating:

12

[Student] says he feels that the kids may gang up
on him now. I do not want [him] to be concerned
that he will be verbally or physically attacked by
this or any other student or ostracized due to this
boy’s instigation. This just does not seem fair to
[Student] and does not create a safe environment
for him. I think at this point we need to assume
that the measure used with this particular boy were
not effective. I know you are doing your best and
that Jr. High can be rough, but this is not
acceptable at so many levels.

13

Id. Benjamin stated in a reply email the same day that she was not aware

14

of the incident until Lyndi Marchese reported it. Id. Benjamin also

15

stated she informed the school counselor and Mr. Coble of the incident.

16

Id. In another email later that day, Benjamin stated that the assistant

17

principal “met with [the other] boys and told them that any further

18

teasing, etc[.] will result in point loss and further consequences.” Id.

19

Benjamin

20

[Student].” Id.

7
8
9
10
11

21
22
23
24
25
26
27
28

further

stated

she

“wished

[she]

could

do

more

to

help

On March 20, 2009, Lyndi Marchese emailed Benjamin about
another incident, stating:
[Student] is really frustrated! Fender kept
punching and touching [him] . . . . He was afraid
to go to you . . . . He feels that Fender will
“beat him up” after [Student] reports him.
[Student] has come home now on several days telling
me he could handle it. He has tried everything and
cannot. This boy is determined to hit and touch
[Student] at any time he can get away with
it. . . . [Student] tells me leaving to go tell you
causes him to be embarrassed but also makes Fender
more determined to continue. He feels that no one
is in control of Fender and he punched him on the
39

arms, chest, and when he got out of the way he was
punched on the back. . . . I will not let this
continue and am frustrated that it is not
controlled. The boy should be removed from the
class or given an aide to assist him.

1
2
3
4

Id. Benjamin replied in an email three days later:
I’m
sorry
that
we’re
still
having
this
conversation. I’m at a loss [because] Fender is
often sneaky about these behaviors as I haven’t
seen it lately. I will make sure that he and
[Student] are not together or near each other as
much as I possibly can for the rest of the year. I
will remind Fender that he is not to touch or act
like he’s going to touch another student and that
doing so will result in a detention, class
suspension, and so on.

5
6
7
8
9
10
11

Id.

12

On May 13, 2009, a different student punched Student in the

13

arm, which caused swelling and a bruise that was visible for several

14

days. Id. (Placer County Sheriff’s Department police report, May 14,

15

2009.) “[T]he School vice-principal undertook an investigation of the

16

incident[,] . . . found that the other student participated in ‘willful

17

use of force’ and suspended him for five days.” (Dep’t of Educ. Office

18

of Civil Rights Decision, No. 09-09-1346, at 4 (Mar. 5, 2010), attached

19

as Ex. A to Gutierrez Decl.).

20

3. P.E. During Student’s Seventh Grade Year

21

“Student was enrolled in a sixth grade P.E. class at Creekview

22

Ranch Middle School” for the first part of his seventh grade year (2009-

23

2010). (Def.’s Statement of Undisputed Facts (“Def.’s SUF”) # 56.)

24

“Student’s individual reading instruction with [Coutchié] was provided

25

in Davis, California, approximately 45 minutes from [Creekview Ranch

26

Middle School], and . . . Student was not able to return to school from

27

his instruction with [Coutchié] until eighth period[.]” Id. # 57.

28

Further, “none of the middle schools in the District offered seventh

40

1

grade P.E. during eighth period.” Id.; Barbaria Decl. ¶ 7. “District

2

offered [seventh grade P.E. at] alternative[ times to Parents] . . . ,

3

but [they] refused these offers.” (Def.’s SUF # 58.)

4

Plaintiffs filed a complaint with CDE concerning Student’s

5

placement in sixth grade P.E. (CDE Compliance Report, Oct. 9, 2009,

6

Pls.’ Exs. in Opp’n Ex. F; A.R. 979.) CDE found:

10

District failed to meet the requirements of 34 CFR
Section 300.518(a). . . . District failed to
continue the Student’s placement in the appropriate
grade level during the pendency of the due process
proceeding. . . . [S]tudent should have proceeded
to the next grade level and corresponding classes
within that grade.”

11

Id. at 9. CDE ordered District to “coordinate[] and fund[ a] membership

12

in a health club or other community recreational services” by November

13

30, 2009 “to make up for the seventh grade P.E. . . . District [had] not

14

provided

15

“Plaintiffs requested that instead of a gym membership, [District] fund

16

Student’s attendance at a Martial Arts class.” (Barbaria Decl. ¶ 8.)

17

District “gave . . . [Student] the money . . . to attend his martial

18

arts class in lieu of [P.E., but] . . . this was only done for part of

19

the year.” (L. Marchese Dep. 7:11-15.) “[District] put [Student] again

20

in a sixth grade [P.E.] class” and did not pay for the martial arts

21

class until January or February 2010. Id. at 7:16-25.

22

D. Discussion

7
8
9

23

from

the

beginning

of

the

2009-2010

school

year.”

Id.

1. California Government Claims Act

24

District seeks summary judgment on Plaintiffs’ state claims,

25

arguing “there is no genuine issue of material fact” concerning the

26

issue of whether Plaintiffs complied with the California Government

27

Claims Act (“Government Claims Act”) before “bring[ing] these . . .

28

claims against [District], a public entity as defined in Government Code

41

1

section 900.4.” (Mot. 36:21-37:1 & 37:21-24.) Plaintiffs do not address

2

this portion of District’s motion in their opposition brief.

3

“Under the [Government Claims A]ct, . . . no suit for ‘money

4

or damages’ may be brought against a public entity until a written claim

5

therefor has been presented to the public entity and either has been

6

acted upon or is deemed to have been rejected.” Alliance Fin. v. City &

7

Cnty. of San Francisco, 64 Cal. App. 4th 635, 641 (1998) (citing Cal.

8

Gov. Code § 945.4). “Compliance with the [Government Claims Act] is

9

mandatory; and failure to file a claim is fatal to the cause of action.”

10

Hacienda La Puente Unified Sch. Dist. v. Honig, 976 F.2d 487, 495 (9th

11

Cir. 1992) (internal quotation marks and citation omitted).

12

Here, Plaintiffs have not demonstrated compliance with the

13

Government Claims Act or that they should be excused from compliance,

14

and this “failure . . . is fatal to” their state claims. Id. Therefore,

15

District’s summary judgment motion on Plaintiffs’ state claims is

16

GRANTED.

17

2. Failure to Provide Math Instruction During 2008-2009 School Year

18

(Third Claim)

19

District argues Plaintiffs’ § 504 claim alleging that District

20

failed to provide Student with math instruction during the 2008-2009

21

school year “is barred by the terms of the 2008 Settlement Agreement.”

22

(Mot. 39:2-3.) District argues the 2008 Settlement Agreement and IEP

23

“specifically provided for individual reading instruction [and P.E.] and

24

did not contain any math instruction.” Id. at 39:6-7. Plaintiffs counter

25

that the 2008 IEP required math instruction that District failed to

26

provide. (Opp’n 25.) Plaintiffs argue “District personnel understood

27

that math instruction was required under the [2008] IEP, and they

28

communicated such openly and repeatedly.” Id.

42

1

“The interpretation of a settlement agreement is governed by

2

principles of state contract law.” Botefur v. City of Eagle Point, Or.,

3

7 F.3d 152, 156 (9th Cir. 1993) (citation omitted). Here, California law

4

governs the dispute over the 2008 Settlement Agreement, since the

5

Agreement itself states that it “shall be interpreted, enforced and

6

governed by the laws of the State of California and the [IDEIA].” (A.R.

7

73.) “‘The fundamental goal of contract[] interpretation is to give

8

effect to the mutual intention of the parties. If contractual language

9

is clear and explicit, it governs.’” Id. (quoting Bank of the W. v.

10

Superior Ct., 2 Cal. 4th 1254, 1264 (1992)). Further, “[a] written

11

contract must be read as a whole and every part interpreted with

12

reference to the whole.” Shakey’s Inc. v. Covalt, 704 F.2d 426, 434 (9th

13

Cir. 1983) (citation omitted). “Preference must be given to reasonable

14

interpretations as opposed to those that are unreasonable[.]” Id.

15

(citation omitted).

16

The parties dispute whether the 2008 Settlement Agreement and

17

IEP required math instruction during the 2008-2009 school year. The 2008

18

Settlement Agreement provides, in relevant part:

21

A. For the 2008-2009 school year District will
contract
with
Suzanne
Coutchié,
Educational
Therapist/Reading Specialist, to provide fifteen
(15) hours per week of direct one-to-one reading
intervention services to [Student.]

22

. . .

23

C. For the 2008-2009 school year [Student] shall
attend the Creekview Ranch Middle School on a
significantly reduced schedule to allow time for
his participation in the services described above.
The parties agree that [Student] shall attend one
period of P.E. (8th period which commences at 1:10
p.m.), five (5) days per week, with normal site
attendance policies/exceptions applying.

19
20

24
25
26
27
28

(A.R. 70-71.)

43

1

The 2008 IEP included the following goals: decoding words,

2

written language, written communication, reading fluency, math, and

3

social interactions. Id. at 315-21. However, the 2008 IEP specifically

4

states:

5
6
7
8
9
10
11

In order to resolve the dispute between [District
and Plaintiffs] (pursuant to the settlement
agreement reached between [them]), [District]
agreed to fund 15 hours per week of individual
instruction
following
[District’s]
academic
calendar and 80 hours of extended year services
from the educational specialist selected by the
parents. [Student] will attend Creekview Ranch
Middle School for one period per day—8th period for
[P.E.] . . . The proposed goals that were written
last spring cannot be implemented due to the
placement with the educational specialist. New
goals will be drafted by the educational therapist
and presented at the annual IEP meeting.

12
13

Id. at 325 (emphasis added).

14

When the 2008 Settlement Agreement and IEP are read as a

15

whole, they do not support a reasonable interpretation that the parties

16

agreed Student should receive math instruction during the 2008-2009

17

school year. The 2008 Settlement Agreement and IEP enumerate in detail

18

the types and amount of instruction the parties agreed Student should

19

receive: fifteen hours per week of one-on-one reading instruction with

20

Coutchié, and one period of P.E. during eighth period at the school site

21

five days per week. Id. at 70-71 & 325. Although the 2008 IEP includes

22

math goals, it also states that those goals could not be implemented

23

because of the placement with Coutchié. Therefore, Plaintiffs have not

24

demonstrated that the language in the 2008 Settlement Agreement and IEP

25

supports their position that these documents required Student to receive

26

math instruction.

27

District also argues “Plaintiffs waived any right to challenge

28

whether [District] needed to provide Student with math instruction

44

1

during

the

2008-2009

school

year,”

since

“[t]he

2008

Settlement

2

Agreement includes a waiver of all claims and issues, past, present, or

3

future, from May 5, 2006 through the date of the execution of the

4

Settlement Agreement on October 21, 2008[.]” (Mot. 39:12-17.) Plaintiffs

5

do not address this portion of District’s motion.

6

The 2008 Settlement Agreement provides, in relevant part:

7

12

Upon execution of this Agreement by all parties,
[Plaintiffs] agree[] to waive their right to
convene an IEP meeting to make the necessary
adjustments to [Student’s] IEP to reflect the terms
of this Agreement. District shall make the
necessary revision to [Student’s] IEP documentation
and shall forward the same to [Plaintiffs] for
their review and execution. Assuming the IEP
documentation reflects the terms of this Agreement,
[Plaintiffs] agree to consent to the IEP and
execute [it.]

13

. . .

14

20

[Plaintiffs] hereby irrevocably and unconditionally
release and forever discharge District with respect
to any and all claims and issues which were
preliminarily raised, or which could have been
later raised, in a lawsuit, or which the parties
hereto have or may ever have had against each other
arising out of the dispute with respect to the time
period May 5, 2006 and through the date of
execution of this Agreement . . . . All such claims
are forever barred by this Agreement regardless of
the forum in which it may be brought, including,
without limitation, claims under the state and
federal laws.

21

(A.R. 73.) Parents signed the 2008 Settlement Agreement on October 9,

22

2008 and the IEP on October 28, 2008. Id. at 77 & 329.

8
9
10
11

15
16
17
18
19

The

23

uncontroverted

evidence

demonstrates

that

Plaintiffs

24

consented to the 2008 Settlement Agreement and IEP, which did not

25

require math instruction, and waived their right to challenge the lack

26

of math instruction. Therefore, this portion of District’s summary

27

judgment motion is GRANTED.

28

//

45

1

3. Interference With Implementation of Student’s IEP (Fourth Claim)

2

District seeks summary judgment on Plaintiffs’ § 504 claim in

3

which they allege District interfered with implementation of the 2008

4

IEP.

5

concerning its position that it did not interfere with Student’s right

6

to a FAPE. (Mot. 39:24-28.) Section 504 prescribes that “[n]o otherwise

7

qualified individual with a disability in the United States . . . shall,

8

solely by reason of . . . his disability, be excluded from . . .

9

participation

District

argues

in,

be

there

is

denied

no

the

genuine

benefits

issue

of,

or

of

be

material

fact

subjected

to

10

discrimination under any program or activity receiving Federal financial

11

assistance[.]” 29 U.S.C. § 794(a). “Section 504 applies to all public

12

schools that receive federal financial assistance.” Mark H. v. Lemahieu,

13

513 F.3d 922, 929 (9th Cir. 2008) (citing 29 U.S.C. § 794(b)(2)(B)). “To

14

establish a violation of § 504 . . . , [Plaintiffs] must show that (1)

15

[Student] is handicapped . . . ; (2) [Student] is otherwise qualified

16

for the benefit or services sought; [and] (3) [Student] was denied the

17

benefit or services solely by reason of [his] handicap[.]” Lovell v.

18

Chandler, 303 F.3d 1039, 1052 (9th Cir. 2002) (citation omitted).
District

19

argues

“Plaintiffs

cannot

establish

[District

20

interfered with implementation of the 2008 IEP.]” (Mot. 39:26-40:7.)

21

Plaintiffs

22

[Coutchié,] . . . District was actually interfering with [Student’s] IEP

23

and the provider that was to provide those services, because without

24

timely payment, the provider would terminate or suspend (which occurred)

25

her special education services.” (Opp’n 25-26.) Plaintiffs further

26

argue:

27
28

counter

that

“by

failing

to

timely

and

directly

Parents were forced to cover for [District] so as
to maintain [Coutchié’s services] and avoid her
quitting. But for [Parents’] mitigation, [Coutchié]
would have quit. [District] knew this or should
46

pay

have
known
that
quitting
was
the
probable
eventuality of non-payment and late payment. . . .
These facts . . . support [finding] that the
District knew that its actions were actually
interfering with [Student’s] education[.]

1
2
3
4

Id. at 27.

5

However, Plaintiffs have not proffered evidence that the

6

payment delays prevented Student from receiving the services required

7

under the 2008 Settlement Agreement and IEP for the 2008-2009 school

8

year.

9

Coutchié’s services on several occasions during the 2008-2009 school

10

year when District failed to timely pay her. However, the uncontroverted

11

evidence also demonstrates that by July 2009, District had paid for all

12

of Coutchié’s services by paying Coutchié directly and by reimbursing

13

Parents. Since Plaintiffs have not demonstrated there is a genuine issue

14

of material fact regarding whether District interfered with Student’s

15

FAPE, this portion of District’s motion is GRANTED.

The

uncontroverted

facts

demonstrate

that

Parents

paid

for

4. Alteration of 2008 IEP (Fifth Claim)

16
17

District argues “Plaintiffs cannot establish a violation of

18

Section 504 under the facts alleged and the evidence supporting the

19

alleged facts” concerning their claim that District altered Student’s

20

2008 IEP. (Mot. 41:14-26.) Plaintiffs counter that “[t]here is a triable

21

issue of material fact on the [2008 IEP] alteration issue because

22

[District’s] own documents show” that District circulated during the

23

2008-2009 school year a different version of the 2008 IEP that contained

24

three

25

District’s inclusion of these additional pages in the 2008 IEP “[was]

26

intentional,

27

systematic records alteration.” Id. at 38.

28

//

additional

pages.

pervasive

(Opp’n

and

28-29.)

otherwise

47

part

Plaintiffs

of

a

further

policy

of

argue

ongoing

1

Plaintiffs submitted the three additional pages they argue

2

District added to the 2008 IEP in support of their argument that

3

District’s alteration of the 2008 IEP violated § 504. (Pls.’ Exs. in

4

Opp’n, Ex. E.) Two of the added pages merely restate information that

5

appears on other pages in the 2008 IEP. Id. Another page contains

6

numerous spaces for information, but none of the spaces contain data.

7

Id. The addition of these three pages has not been shown to have any

8

bearing on benefits or services Student was otherwise qualified to

9

receive.

See

Lovell,

303

F.3d

at

1052

(requiring

plaintiffs

to

10

demonstrate, inter alia, that “[Student] was denied the benefit or

11

services solely by reason of [his] handicap”). Therefore, this portion

12

of District’s summary judgment motion is GRANTED.

13

5. Remaining § 504 Claims

14

District seeks summary judgment on Plaintiffs’ remaining § 504

15

claims, arguing Plaintiffs cannot obtain monetary damages, which is the

16

only relief they seek for their remaining claims. (Mot. 47:16-25.) “[A]

17

plaintiff seeking monetary damages under Section 504 must prove that

18

defendants acted with deliberate indifference.” C.B. v. Sonora Sch.

19

Dist., 691 F. Supp. 2d 1123, 1158 (E.D. Cal. 2009) (citing Duvall v.

20

Cnty. of Kitsap, 260 F.3d 1124, 1138 (9th Cir. 2001)). “Deliberate

21

indifference

22

protected right is substantially likely, and a failure to act upon that

23

. . . likelihood.” Duvall, 260 F.3d at 1139.

24
25
26
27
28

requires

both

knowledge

that

a

harm

to

a

Because
in
some
instances
events
may
be
attributable
to
bureaucratic
slippage
that
constitutes negligence rather than deliberate
action or inaction, [the Ninth Circuit] ha[s]
stated that deliberate indifference does not occur
where a duty to act may simply have been overlooked
. . . . Rather, in order to meet the second element
of the deliberate indifference test, a failure to
act must be a result of conduct that is more than

48

federally

negligent,
and
deliberateness.

1

involves

an

element

of

2
Id.
3
District argues “the record clearly establishes [it] did not
4
act with deliberate indifference toward Student.” (Mot. 47:16-25.)
5
District

further

argues

“Plaintiffs

[only]

alleged

deliberate

6
indifference

in

.

.

.

two

of

their

[claims]–the

Sixth

alleging

7
violations of [§] 504 based on placing Student in Sixth grade P.E. for
8
the first part of the 2009-2010 school year and [the] Ninth based upon
9
alleged peer harassment of Student.” Id. at 47:25-48:1.
10
Plaintiffs did not address the portion of District’s motion
11
which challenges Plaintiffs’ Third, Seventh, Eighth, Tenth, Twelfth, and
12
Thirteenth claims, and failed to submit evidence from which a reasonable
13
inference can be drawn that District acted with deliberate indifference
14
concerning these claims. Therefore, District’s summary judgment motion
15
on Plaintiffs’ Third, Seventh, Eighth, Tenth, Twelfth, and Thirteenth
16
claims is GRANTED.
17
a. P.E. During Seventh Grade (Sixth Claim)
18
District argues Plaintiffs cannot demonstrate Defendants acted
19
with deliberate indifference when it placed Student in a sixth grade
20
P.E. class during his seventh grade year, since “there was no Seventh
21
Grade

P.E.

class

in

the

afternoon

and

Parents

refused

to

switch

22
Student’s tutoring schedule to the afternoon to accommodate a morning
23
P.E. class.” (Mot. 48:2-5.) District also argues that “[i]n response to
24
a CDE complaint filed by Plaintiffs regarding Student’s placement in a
25
sixth grade P.E. class during seventh grade, CDE ordered [District] to
26
fund a gym membership [for Student.]” Id. at 48:5-9. District further
27
argues

it

funded

Student’s

martial

arts

class

instead

of

a

gym

28
membership at Parents’ request. Id. Plaintiffs counter that despite
49

1

CDE’s order, District delayed funding for Student’s martial arts class

2

and kept him in sixth grade P.E. until January or February 2010. (Opp’n

3

40.)

4

The evidence demonstrates that “Student was placed in sixth

5

grade P.E. during the 2009-2010 school year because there was no seventh

6

grade

7

Student’s tutoring schedule to the afternoon to accommodate a morning

8

P.E. class.” (Barbaria Decl. ¶ 7.) Parents filed a complaint with the

9

CDE concerning Student’s placement in sixth grade P.E. during his

10

seventh grade year. (CDE Compliance Report, Oct. 9, 2009, Pls.’ Exs. in

11

Opp’n Ex. F.) CDE issued a report in which it concluded that District

12

“failed to meet the requirements of 34 CFR Section 300.518(a)[, since]

13

. . . [S]tudent should have proceeded to the next grade level and

14

corresponding classes within that grade.” Id. CDE ordered District to

15

“coordinate[] and fund[] membership [for Student] in a health club or

16

other community recreational services” by November 30, 2009 “to make up

17

for the seventh grade P.E. . . . District [had] not provided from the

18

beginning of the 2009-2010 school year.” Id. Plaintiffs requested that

19

District fund Student’s martial arts class instead of a private gym

20

membership, which District did beginning in January or February 2010.

21

(Barbaria Decl. ¶ 8; L. Marchese Dep. 7:11-15; L. Marchese Dep. 7:11-

22

15.)

P.E.

class

in

the

afternoon

and

Parents

refused

to

switch

This evidence does not support drawing a reasonable inference

23
24

that

District

was

deliberately

indifferent

25

physical education. Rather, the evidence demonstrates District initially

26

placed Student in sixth grade P.E. class because that was the only P.E.

27

class available in the District during eighth period, and Parents

28

refused District’s offers to place him in seventh grade P.E. classes

50

to

Student’s

need

for

1

offered at other times. Further, District funded Student’s martial arts

2

class at Parents’ request. In addition, nothing in the record indicates

3

that the martial arts instruction Student received did not “make up for

4

the seventh grade P.E. . . . District [had] not provided from the

5

beginning of the 2009-2010 school year.” (CDE Compliance Report, Oct. 9,

6

2009, Pls.’ Exs. in Opp’n Ex. F.) Therefore, this portion of District’s

7

summary judgment motion is GRANTED.

8

b. Peer Harassment (Ninth Claim)

9

District argues “the uncontroverted facts . . . establish

10

beyond question that [District] was not deliberately indifferent to

11

Student’s plight [concerning peer harassment,] . . . [since] Student’s

12

teacher responded to each peer harassment incident or communication by

13

speaking directly with the [other s]tudents involved and bringing [in]

14

the school counselor to provide additional support.” (Mot. 44:27-45:2.)

15

Plaintiffs counter that “[t]here is a triable issue of material fact [on

16

the issues of whether District] knew and understood that [Student] was

17

the target of continuing and systematic peer harassment, and [whether]

18

despite the numerous requests to stop the harassment after it got

19

physical, [District] was deliberately indifferent.” (Opp’n 52.)

20

The evidence evinces that Student experienced five incidents

21

of peer harassment between December 8, 2008 and May 13, 2009. (Pls.’

22

Exs. in Opp’n, Ex. G.) Benjamin was not aware of the first, third, or

23

fourth

24

Benjamin, Mr. Coble, the school counselor, or the assistant principal

25

spoke

26

incidents. Id. Further, Lyndi Marchese was satisfied with the assurance

27

Benjamin gave her after Lyndi Marchese informed Benjamin about the first

28

incident; specifically, Benjamin stated she would “keep an eye on the

incidents

to

the

until

offenders

Lyndi

Marchese

following

51

the

reported

second,

them

third,

to

her.

and

Id.

fourth

1

situation and intervene if necessary.” (Pls.’ Exs. in Opp’n, Ex. G.) In

2

addition, Benjamin prohibited the offending student from working with

3

Student

4

assistant

5

incident for five days. (Dep’t of Educ. Office of Civil Rights Decision,

6

No. 09-09-1346, at 5 (Mar. 5, 2010), attached as Ex. A to Gutierrez

7

Decl.).

after

the

principal

second

and

suspended

fourth
the

incidents.

offender

Id.

involved

Further,
in

the

the

fifth

8

This evidence evinces that District “took . . . affirmative

9

steps . . . to address the incidents of harassment involving [Student]”

10

and “does not give rise to an inference that [District] was deliberately

11

indifferent to [Student’s] situation or that it had an attitude of

12

permissiveness that amounted to discrimination.” S.S. v. E. Ky. Univ.,

13

532 F.3d 445, 455-56 (6th Cir. 2008). Therefore, this portion of

14

District’s motion is GRANTED.
III. CONCLUSION

15
16

For the stated reasons, the ALJ’s Decision is AFFIRMED,2 and

17

District’s summary judgment motion is GRANTED. Judgment shall be entered

18

in favor of Defendant.

19

Dated:

September 7, 2012

20
21

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

22
23
24
25
26
27
28

2

In light of this order, District’s motion to compel
expert deposition testimony is DENIED as moot. (ECF. No. 64.)
52