H. et al. v. Dry Creek Joint Elementary School District et al.

Filing 176

MEMORANDUM AND ORDER signed by District Judge Morrison C. England, Jr. on 5/12/2017 DENYING #143 the CDE's Motion to Strike Plaintiff's Jury Trial Demand. (Reader, L)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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EVERETT H, a minor, by and through
his Guardians Ad Litem REBECCA
HAVEY and HEATH HAVEY;
REBECCA HAVEY, an individual; and
HEATH HAVEY, an individual

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No. 2:13-cv-00889-MCE-DB

MEMORANDUM AND ORDER

Plaintiffs,
v.
DRY CREEK JOINT ELEMENTARY
SCHOOL DISTRICT, BOARD OF
TRUSTEES OF DRY CREEK JOINT
ELEMENTARY SCHOOL DISTRICT;
MARK GEYER, individually and in his
official capacity as Superintendent of
Dry Creek Joint Elementary School
District; EVONNE ROGERS,
individually in her official capacity as
Assistant Superintendent of
Educational Services; LYNN
BARBARIA, individually and in her
official capacity as Director of Special
Education; ANDREW GIANNINI,
individually and in his official capacity
as Principal at Olive Grove Elementary
School; CALIFORNIA DEPARTMENT
OF EDUCATION; and TOM
TORLAKSON, individually and in his
official capacity as State
Superintendent of Public Instruction for
the State of California,
Defendants.
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Through the present action, Plaintiffs Heath and Rebecca Havey, both individually

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and on behalf of their son Everett H. (hereinafter “Plaintiffs” unless otherwise indicated)

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allege educational harms based on purported violations of Everett’s right as a disabled

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student to a free and appropriate public education (“FAPE”) pursuant to the provisions of

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the Individuals with Disabilities Education Improvement Act, 20 U.S.C. § 1400 et seq.

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(“IDEA”), and various state statutes. Plaintiffs also assert associated violations of Title II

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of the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq. (“ADA”), and § 504 of

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the Rehabilitation Act of 1973, 29 U.S.C. § 794 (“Section 504”). By way of damages,

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Plaintiffs seek compensatory education and reimbursement, compensatory and punitive

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damages, and attorneys’ fees. Plaintiffs have timely demanded a jury trial pursuant to

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Federal Rule of Civil Procedure 38(b).1

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The Dry Creek Joint Elementary School District, Everett’s local school district,

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was originally named as a Defendant by Plaintiffs, along with Dry Creek’s Board of

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Trustees and four individual Dry Creek administrators, Lynn Barbaria, Mark Geyer,

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Andrew Giannini and Evonne Rogers in their official capacities (collectively referred to

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hereafter as “Dry Creek”). On or about November 23, 2014, however, Plaintiffs settled

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their claims against Dry Creek by accepting its offer of entry of judgment pursuant to

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Rule 68. Although that terminated all claims against Dry Creek, Plaintiffs also included

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the California Department of Education (the “CDE”) as a named Defendant.2

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The CDE now moves to strike Plaintiffs’ jury demand as to the Second, Eighth,

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Ninth and Tenth Causes of Action contained within Plaintiffs’ Second Amended

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Complaint (ECF No. 45) and part of the Eleventh Cause of Action, on grounds that the

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issues specified in those causes of action are not subject to jury trial. As set forth

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below, that Motion is denied.

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All further references to “Rule” or “Rules” are to the Federal Rules of Civil Procedure unless
otherwise noted.
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Plaintiffs also initially sued Tom Torlakson, California’s State Superintendent of Public
Instruction, but all claims against Torlakson were dismissed by Memorandum and Order filed August 6,
2015 (ECF No. 56).

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ANALYSIS

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According to the CDE, the Second and Ninth Causes of Action directly implicate

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the IDEA and Plaintiffs are not entitled to a jury trial since it is “well-settled” that there is

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no such right as to IDEA claims. The CDE cites numerous cases in support of that

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proposition. Def.’s Mot., ECF No. 143, 1:18-27. The CDE goes on to assert that

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because the Tenth Cause of Action, for violation of California Education Code §56000,

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et seq., implements the IDEA, Plaintiffs have no right to jury trial as to that issue. In

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addition, with regard to that portion of the Eleventh Cause of Action under the ADA

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based on retaliation, the CDE cites a Ninth Circuit decision, Alvarado v. Cajun Operating

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Co., 588 F.3d 1261, 1270 (9th Cir. 2009), finding no right to a jury trial on such a claim.

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Finally, arguing that cases under the ADA and Section 504 are generally analyzed in the

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same manner, see Vinson v. Thomas, 288 F.3d 1145, 2252 n.7 (9th Cir. 2002), the CDE

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similarly asserts there is no right to a jury trial on Plaintiff’s Eighth Cause of Action for

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retaliation and interference with advocacy.

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As this Court has previously observed, the facts of this case defy clear-cut labels.

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Plaintiffs allege numerous acts of retaliation and misrepresentation which included both

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physical neglect and psychological humiliation. Even though that conduct may have

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originated in an educational sitting otherwise falling under the purview of the IDEA, the

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Ninth Circuit has recognized that the IDEA “does not encompass every challenge

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concerning a school’s treatment of a disabled student” and in particular may not “apply to

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plaintiffs who claimed that school officials had inflicted physical and emotional abuse on

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their child.” Payne v. Peninsula Sch. Dist., 653 F.3d 863, 872-73 (9th Cir. 2011).

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While some portions of both Plaintiffs’ IDEA claims, and their other claims

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implicating the ADA and Section 504, may fall within the scope of claims ordinarily

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deemed not amenable to jury trial, other aspects of those claims do not. This case

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include intersecting claims which pertain not only to the provision of a free and

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appropriate education (“FAPE”) under the IDEA , and related statutory protections to
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FAPE afforded by the ADA and Section 504, but also to intentional discrimination,

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retaliation and deliberate indifference to claims of physical abuse and negligence as well

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as denial of school benefits. Plaintiffs’ equitable claims under the IDEA and related

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statutory provisions, which do not by themselves entitle Plaintiffs to a jury trial, arise from

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the same set of factual circumstances giving rise to Plaintiffs’ legal claims stemming from

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the same set of circumstances, which do. Specifically, Plaintiffs’ claims for intentional

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discrimination and retaliation allow for compensatory damages to which a right to jury

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trial attaches, and those claims by no stretch of the imagination are synonymous with the

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provision of a FAPE under the IDEA. See, e.g., Mark H. v. Hamamoto, 620 F.3d 1090,

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1097 (9th Cir. 2010) (finding compensatory damages for discriminatory actions and

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violations of Section 504 are available when defendant acted “intentionally or with

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deliberate indifference”); Mark H. v. Lemahieu, 513 F.3d 922, 930 (9th Cir. 2008) (finding

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compensatory damages allowed under Section 504 where allegations go beyond simply

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demonstrating that FAPE requirements were not met).

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As Plaintiffs point out, the Rules of Civil Procedure mandate that this Court

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“preserve any federal right to a jury trial.” Fed. R. Civ. Pro. 42(b). Where, as here,

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equitable and legal claims joined in a lawsuit raise similar factual issues, the equitable

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claims generally cannot be separated and tried first since the court’s determination of the

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facts on the equitable claims could impair the objecting party’s right to a full trial on the

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legal claims. See Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 508-10 (1959);

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Danjaq LLC v. Sony Corp., 263 F.3d 942, 962 (9th Cir. 2001) (explaining that “a

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constitutional concern may arise when the district court orders that some portions of a

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case be tried to the judge and others to a jury” in circumstances where “the legal and

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equitable issues overlap and the evidence is intertwined”). Here, the issues are so

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inextricably intertwined that a bench trial on any of the claims raises the danger of

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abrogating Plaintiffs’ right to a jury trial on other claims. Consequently, the Court

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declines to bifurcate the proceedings between issues subject to either a bench or jury

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trial since making that determination would be all but impossible.
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CONCLUSION

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For all the foregoing reasons, the CDE’s Motion to Strike Plaintiff’s Jury Trial
Demand (ECF No. 143) is DENIED.3
IT IS SO ORDERED.
Dated: May 12, 2017

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Having determined that oral argument was not of material assistance, the Court ordered this
matter submitted on the briefing in accordance with E.D. Local Rule 230(g).

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