Henry v. Napa Valley Unified

Filing 34

ORDER by Judge Maria-Elena James granting 21 Motion to Dismiss. (mejlc2S, COURT STAFF) (Filed on 12/8/2016)

1
2
3
4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6
HANNAH HENRY,

7

Case No. 16-cv-04021-MEJ

Plaintiff,
8

ORDER GRANTING MOTION TO
DISMISS

v.
9
NAPA VALLEY UNIFIED,

10

Re: Dkt. No. 21

Defendant.

United States District Court
Northern District of California

11
12
INTRODUCTION

13

Pending before the Court is Napa Valley United School District‘s (the ―District‖) Motion

14
15

to Dismiss Plaintiff Hannah Henry‘s (―Plaintiff‖) First Amended Complaint (―FAC‖; Dkt. No. 17)

16

pursuant to Federal Rule of Civil Procedure (―Rule‖) 12(b)(6) and Rule 12(b)(1). Mot., Dkt. No.

17

21-1.1 Plaintiff filed an Opposition (Dkt. No. 26), and the District filed a Reply (Dkt. No. 29).

18

The Court previously vacated the hearing and took the matter under submission. Dkt. No. 32.

19

Having considered the parties‘ positions, the record in this case, and the relevant legal authority,

20

the Court GRANTS the District‘s Motion as set forth below.
BACKGROUND

21

22

On April 4, 2016, the parties entered into a settlement agreement of a pending due process

23

case, Office of Administrative Hearings Case No. 2016010051. FAC ¶¶ 10-11. During the 2015-

24

2016 school year, the District had filed a due process complaint against Plaintiff‘s child, a minor

25
1

26
27
28

The District filed its memorandum of points and authorities in a separate document and docket
number (Dkt. No. 21-1) from its Motion (Dkt. No. 21). Civil Local Rule 7-2(b) requires parties
submit ―[i]n one filed document‖ both their motion, notice of motion, and memorandum of points
and authorities. Consequently, for purposes of this Order, where the Court cites to the District‘s
Motion, it is referring to its memorandum of points and authorities in Dkt. No. 21-1.

1

student with a disability. FAC ¶ 7. The District alleged Plaintiff was refusing to consent to the

2

District‘s offer of a free and appropriate public education for her child pursuant to the Individuals

3

with Disabilities Education Act (―IDEA‖), 20 U.S.C. §§1400, et seq. Plaintiff also had filed a due

4

process complaint against the District, alleging violations of the IDEA and its corresponding

5

provisions in the Education Code. FAC ¶ 8. The parties‘ Settlement Agreement contains the

6

following language:
[Paragraph] G. District agrees to reimburse reasonable attorney‘s
fees in an amount not to exceed eighteen thousand dollars ($18,000)
for attorney fees related to Napa Valley Unified School District v.
Parent on Behalf of Student and Parent on Behalf of Student v. Napa
Valley Unified School District, OAH Consolidated Case No.
2016010051. Payment shall be made after execution of this
Agreement and Board approval and within forty-five (45) business
days of receipt of an itemized statement of attorney‘s fees and
services from Tania L. Whiteleather.

7
8
9
10

United States District Court
Northern District of California

11
12

FAC ¶¶ 11, 14; Burkhart Decl., Ex. A (Settlement Agreement), Dkt. No. 21-3.2

13

Upon the District Board‘s approval of the Settlement Agreement on April 8, 2016,

14

Plaintiff‘s counsel, Tania Whiteleather, immediately presented a Billing Statement to the District,

15

totaling on or around $18,000. FAC ¶¶ 14-15. The District owed payment on these fees by May

16

23, 2016. Id. ¶ 14. However, the District ―did not respond in any way to the Billing Statement

17

until July 7, 2016,‖ and then initially paid Ms. Whiteleather $15,210, based on its interpretation of

18

reasonable fees. Id. ¶ 15; Burkhart Decl. ¶¶ 2-5. Ms. Whiteleather deposited the payment on July

19

8, 2016. Burkhart Decl. ¶ 5.
Plaintiff filed her original Complaint on July 15, 2016 alleging a single claim for breach of

20
21

a settlement agreement between the parties. Dkt. No. 1. On August 26, 2016, Plaintiff‘s counsel

22

effectuated service of the original Complaint on the District. Dkt. No. 6. In the intervening

23

period, however, the District‘s counsel wrote to Ms. Whiteleather on July 19, 2016 and agreed to

24

pay the remaining balance of the fees allegedly owed; Ms. Whiteleather received the check on July

25

22, 2016, and deposited it on August 1, 2016. FAC ¶ 24; Burkhart Decl. ¶¶ 6-7.
On September 16, 2016, the District filed a motion to dismiss the Complaint arguing,

26
27
2

28

An unredacted version of the Settlement Agreement is available at Dkt. No. 22-2. The Court
separately granted the motion to seal this document. Dkt. No. 33.
2

1

among other things, that the breach of contract claim was moot and that the Court lacked

2

jurisdiction over it. Dkt. Nos. 8-12. Rather than filing an opposition, Plaintiff amended her

3

complaint, filing her FAC on October 6, 2016.

4

The FAC contains three claims: (1) the First Cause of Action is for retaliation under the

5

Americans with Disabilities Act (―ADA‖); (2) the Second Cause of Action is for disability

6

discrimination under Section 504 of the Rehabilitation Act; and (3) the Third Cause of Action is

7

again for breach of contract. Plaintiff alleges she suffered hardship between May 23, 2016, when

8

payment was due, and July 22, 2016, when the District allegedly made full payment. See FAC ¶

9

26. She contends as a result of the District‘s failure to timely pay the additional $2,790, ―Plaintiff

10

was left to pay those amounts on her own.‖ Id. ¶ 21. She alleges that:

United States District Court
Northern District of California

11
12
13
14
15
16
17

Plaintiff is responsible to her counsel for the fees for her son‘s
administrative matter, which was brought pursuant to the [IDEA]
and which sought reimbursement for services paid for by the parents
for their son, an individual with a disability. The failure of [the
District] to comply with the settlement agreement has left Plaintiff
in the position of having to apply her son‘s educational
reimbursement funds from [the District] to her attorney‘s fees,
denying her son the benefit of the bargain under that settlement
agreement and further denying him payment for the educational
services privately provided to him by his parents to address his
unique educational needs.

18

Id. ¶ 26. The Third Cause of Action asserts ―Plaintiff‘s action was filed at a time that Defendant

19

had failed to comply with the terms of the settlement agreement with Plaintiff. Only after a

20

complaint was filed did Defendant issue payment of the remaining fees.‖ FAC ¶ 44.

21

Plaintiff now seeks ―an order that [the District] failed to comply with the Settlement and

22

Release Agreement its agent signed on April 4, 2016 and which its Board approved to pay

23

Plaintiff‘s counsel up to $18,000‖ and ―an order that Plaintiff is entitled to payment of her

24

attorney‘s fees for the enforcement of the settlement agreement, including any related costs for the

25

prosecution of this matter.‖ Id., Prayer for Relief ¶¶ 1, 3; id. ¶ 45 (―Plaintiff now seeks

26

enforcement of the contract allowing for attorney‘s fees to a prevailing party in an action to

27

enforce that agreement.‖).

28

The District moves to dismiss on numerous grounds, including among other things: (1)
3

Plaintiff has failed to plead (and cannot plead) that she satisfied the claim presentation requirement

2

for her breach of contract claim as required by California‘s Government Claims Act; (2) the Court

3

lacks jurisdiction over the Third Cause of Action under the Eleventh Amendment of the United

4

States Constitution; and (3) Plaintiff‘s ADA and Rehabilitation Act claims are derivative of her

5

breach of contract claim, with no independent jurisdictional hook and with no indication she seeks

6

to enforce rights available under either of these statutes. See Mot. It further points out that the

7

FAC pleads ―the District had reasons for the delay in payment – i.e. that it thought that the

8

attorney‘s billing rate was unreasonable and that her travel expenses should not be fully

9

reimbursed.‖ Mot. at 16 (citing FAC ¶ 15). Thus ―[o]n the face of the contract, the District was

10

only required to reimburse ‗reasonable‘ attorneys‘ fees, ‗[i]n an amount not to exceed eighteen

11
United States District Court
Northern District of California

1

thousand dollars.‘‖ Id. (quoting FAC ¶ 11).

12

In her Opposition, Plaintiff concedes she did not comply with the claim presentation

13

requirement under California law. Opp‘n at 4 (―[N]o Government Claim was filed with Defendant

14

prior to the filing of the complaint and FAC.‖). She does not address the Eleventh Amendment

15

immunity argument. As to the ADA and Rehabilitation Act claims, Plaintiff asserts that she

16

challenges ―[t]he actions of Defendant, in entering into a settlement of a pending administrative

17

matter and then acting unreasonably and in a manner that would make other parents of children

18

with disabilities reluctant to advocate for their child is a retaliation that violates both Section 504

19

and the ADA.‖ Opp‘n at 7.
LEGAL STANDARDS

20
21

22

A.

Rule 12(b)(1)
Federal district courts are courts of limited jurisdiction; ―[t]hey possess only that power

23

authorized by Constitution and statute, which is not to be expanded by judicial decree.‖ Kokkonen

24

v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (citation omitted). Accordingly, ―[i]t

25

is to be presumed that a cause lies outside this limited jurisdiction, and the burden of establishing

26

the contrary rests upon the party asserting jurisdiction.‖ Id.; Chandler v. State Farm Mut. Auto.

27

Ins. Co., 598 F.3d 1115, 1122 (9th Cir. 2010).

28

Federal Rule of Civil Procedure 12(b)(1) authorizes a party to move to dismiss a lawsuit
4

1

for lack of subject matter jurisdiction. A jurisdictional challenge may be facial or factual. Safe

2

Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). Where the attack is facial, the

3

court determines whether the allegations contained in the complaint are sufficient on their face to

4

invoke federal jurisdiction, accepting all material allegations in the complaint as true and

5

construing them in favor of the party asserting jurisdiction. Warth v. Seldin, 422 U.S. 490, 501

6

(1975). Where the attack is factual, however, ―the court need not presume the truthfulness of the

7

plaintiff‘s allegations.‖ Safe Air for Everyone, 373 F.3d at 1039. In resolving a factual dispute as

8

to the existence of subject matter jurisdiction, a court may review extrinsic evidence beyond the

9

complaint without converting a motion to dismiss into one for summary judgment. Id.; McCarthy
v. United States, 850 F.2d 558, 560 (9th Cir. 1988) (holding that a court ―may review any

11
United States District Court
Northern District of California

10

evidence, such as affidavits and testimony, to resolve factual disputes concerning the existence of

12

jurisdiction‖).

13

B.

Rule 12(b)(6)

14

Rule 8(a) requires that a complaint contain a ―short and plain statement of the claim

15

showing that the pleader is entitled to relief.‖ Fed. R. Civ. P. 8(a)(2). A complaint must therefore

16

provide a defendant with ―fair notice‖ of the claims against it and the grounds for relief. Bell Atl.

17

Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotations and citation omitted).

18

A court may dismiss a complaint under Rule 12(b)(6) when it does not contain enough

19

facts to state a claim to relief that is plausible on its face. Id. at 570. ―A claim has facial

20

plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable

21

inference that the defendant is liable for the misconduct alleged.‖ Ashcroft v. Iqbal, 556 U.S. 662,

22

678 (2009). ―The plausibility standard is not akin to a ‗probability requirement,‘ but it asks for

23

more than a sheer possibility that a defendant has acted unlawfully.‖ Id. (quoting Twombly, 550

24

U.S. at 557). ―While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need

25

detailed factual allegations, a plaintiff‘s obligation to provide the ‗grounds‘ of his ‗entitle[ment] to

26

relief‘ requires more than labels and conclusions, and a formulaic recitation of the elements of a

27

cause of action will not do. Factual allegations must be enough to raise a right to relief above the

28

speculative level.‖ Twombly, 550 U.S. at 555 (internal citations and parentheticals omitted).
5

1

In considering a motion to dismiss, a court must accept all of the plaintiff‘s allegations as

2

true and construe them in the light most favorable to the plaintiff. Id. at 550; Erickson v. Pardus,

3

551 U.S. 89, 93-94 (2007); Vasquez v. Los Angeles Cty., 487 F.3d 1246, 1249 (9th Cir. 2007). In

4

addition, courts may consider documents attached to the complaint. Parks Sch. of Bus., Inc. v.

5

Symington, 51 F.3d 1480, 1484 (9th Cir. 1995) (citation omitted).
If a Rule 12(b)(6) motion is granted, the ―court should grant leave to amend even if no

6

request to amend the pleading was made, unless it determines that the pleading could not possibly

8

be cured by the allegation of other facts.‖ Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en

9

banc) (internal quotations and citations omitted). However, the Court may deny leave to amend

10

for a number of reasons, including ―undue delay, bad faith or dilatory motive on the part of the

11
United States District Court
Northern District of California

7

movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice

12

to the opposing party by virtue of allowance of the amendment, [and] futility of amendment.‖

13

Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003) (citing Foman v.

14

Davis, 371 U.S. 178, 182 (1962)).
ANALYSIS

15

The Court first addresses Plaintiff‘s Breach of Contract claim, then her ADA and

16
17

Rehabilitation Act claims.

18

A.

19

Breach of Contract Claim
The Court finds Plaintiff‘s breach of contract claim must be dismissed for failure to

20

comply with California‘s claims presentation requirement and because the District has immunity

21

from this claim under the Eleventh Amendment. ―State tort claims included in a federal action

22

may proceed only if the claims were first presented . . . in compliance with the claim presentation

23

requirement.‖ Talib v. Nicholas, 2015 WL 456546, at *8 (C.D. Cal. Feb. 2, 2015), appeal

24

dismissed (Mar. 24, 2015) (citing Karim-Panahi v. L.A. Police Dep’t, 839 F.2d 621, 627 (9th Cir.

25

1988)); see also Cal. Gov‘t Code §§ 905, 911.2(a), 945.4 (no suit for money or damages may be

26

brought against a public entity unless and until a timely claim has been presented to the entity, and

27

the entity has rejected the claim); City of Stockton v. Superior Court, 42 Cal. 4th 730, 738 (2007)

28

(―Contract claims fall within the plain meaning of the requirement that ‗all claims for money or
6

1

damages‘ be presented to a local public entity‖). Plaintiff concedes she has failed to comply with

2

the claims presentation requirement. See Opp‘n at 4. Thus, as ―submission of a claim to a public

3

entity pursuant to section 900 et seq. is a condition precedent to a tort action[,]‖ Plaintiff‘s ―failure

4

to present the claim bars the action.‖ State v. Superior Court (Bodde), 32 Cal. 4th 1234, 1240

5

(2004) (internal quotation marks omitted).
Furthermore, the Ninth Circuit has previously held that school districts in California are

6
7

arms of the state under California‘s unique system and are thus entitled Eleventh Amendment

8

immunity. See Belanger v. Madera Unified Sch. Dist., 963 F.2d 248, 254 (9th Cir. 1992); Holz v.

9

Nenana City Pub. Sch. Dist., 347 F.3d 1176, 1181 (9th Cir. 2003) (discussing California‘s unique
public school system as compared with other states); see also C.W. v. Capistrano Unified Sch.

11
United States District Court
Northern District of California

10

Dist., 784 F.3d 1237, 1247-48 (9th Cir. 2015) (citing Belanger for its holding that ―in California,

12

school districts are state agencies for purposes of Eleventh Amendment immunity‖). Plaintiff

13

does not address the District‘s Eleventh Amendment immunity argument; nor does she contest that

14

immunity bars her claims. Typically, failure to address in an opposition arguments raised in an

15

opening motion, as Plaintiff did here, constitutes waiver or concession of the argument. See

16

Stichting Pensioenfonds ABP v. Countrywide Fin. Corp., 802 F. Supp. 2d 1125, 1132 (C.D. Cal.

17

2011) (―[I]n most circumstances, failure to respond in an opposition brief to an argument put

18

forward in an opening brief constitutes waiver or abandonment in regard to the uncontested issue.‖

19

(quotation and citations omitted)); see also Allen v. Dollar Tree Stores, Inc., 475 F. App‘x 159,

20

159 (9th Cir. 2012) (district court properly dismissed claims where plaintiff‘s ―opposition to the

21

motion to dismiss failed to respond to [the defendant‘s] argument‖).
As Plaintiff has neither alleged facts showing how she may maintain her breach of contract

22
23

claim, nor demonstrated in her Opposition demonstrating such a claim is viable, the Court

24

accordingly dismisses Plaintiff‘s breach of contract claim with prejudice.

25

B.

ADA and Rehabilitation Act Claims

26

Plaintiff‘s ADA and Rehabilitation Act claims must likewise be dismissed for failure to

27

allege plausible facts supporting these claims. To state a claim for retaliation under the ADA, a

28

plaintiff must ―make out a prima facie case (a) that he or she was engaged in protected activity, (b)
7

1

that he or she suffered an adverse action, and (c) that there was a causal link between the two.‖

2

T.B. ex rel. Brenneise v. San Diego Unified Sch. Dist., 806 F.3d 451, 473 (9th Cir. 2015) (adopting

3

Title VII‘s framework for ADA retaliation claims). Similarly, ―[t]he Ninth Circuit has held that a

4

retaliation claim brought under the Rehabilitation Act requires a plaintiff to show: ‗(1)

5

involvement in a protected activity, (2) an adverse [] action and (3) a causal link between the

6

two.‘‖ Kitchen v. Lodi Unified Sch. Dist., 2014 WL 5817320, at *4 (E.D. Cal. Nov. 5, 2014)3

7

(quoting Coons v. Sec’y of U.S. Dep’t of Treasury, 383 F.3d 879, 887 (9th Cir. 2004)) (quotation

8

and internal marks omitted).
First, even assuming Plaintiff engaged in a protected activity,4 she has not plausibly

10

alleged a causal link between that activity and suffering an adverse action. As the District asserts,

11
United States District Court
Northern District of California

9

both Plaintiff‘s ADA and Rehabilitation Act claims are derivative of the breach of contract claim

12

and generally contend the District‘s failure to timely pay was in retaliation for the advocacy of her

13

son in the underlying due process action. See FAC ¶¶ 32, 33 (alleging the District had ―no reason

14

to believe that its refusal to comply with the settlement agreement terms was reasonable,‖ and that

15

it ―took the actions it did with the intent to discourage both Plaintiff‘s advocacy for her son and

16

her retention of counsel for that advocacy.‖). But Plaintiff does not allege facts supporting a

17

retaliation theory; in fact, Plaintiff‘s allegations about the parties‘ Settlement Agreement and

18

subsequent disputes related to that agreement clarify the reasons for the District‘s delay—none of

19

which involve retaliation. See Mot. at 16. Among other things, the FAC pleads the District had

20

reasons for the delay in payment, including that it thought Ms. Whiteleather‘s billing rate, which

21

was over $450 per hour, was unreasonable and that her travel expenses should not be reimbursed

22
23
24
25
26
27

3

The Rehabilitation Act contains no anti-retaliation provision of its own. Instead, it ―incorporates
the ADA‘s anti-retaliation provision, 42 U.S.C. § 12203.‖ Kitchen, 2014 WL 5817320, at *4 n.1
(citing McCoy v. Dep’t of Army, 789 F. Supp. 2d 1221, 1234 (E.D. Cal. 2011)). Accordingly,
courts ―draw[] . . . from the case law and requirements of that section, which provides that ‗[n]o
person shall discriminate against any individual because such individual has opposed any act or
practice made unlawful by this chapter or because such individual made a charge, testified,
assisted, or participated in any manner in an investigation, proceeding, or hearing under this
chapter.‘‖ Id. (quoting 42 U.S.C. § 12203(a)).
4

28

The District challenges this contention. See Mot. at 12-13, 15-16.
8

1

at the amount she claimed. See FAC ¶ 15. The Settlement Agreement also facially allows for

2

such disputes as to the reasonableness of those fees: the District was only required to reimburse

3

―reasonable‖ attorney‘s fees, ―[i]n an amount not to exceed eighteen thousand dollars.‖ Id. ¶ 11

4

(emphasis added).

5

Second, there is no indication Plaintiff suffered an adverse action sufficient to state a

6

retaliation claim. Not every action a defendant takes that affects a plaintiff who has engaged in

7

protected activity constitutes adverse action. Brooks v. City of San Mateo, 229 F.3d 917, 928 (9th

8

Cir. 2000). Rather, an adverse action is one that is ―reasonably likely to deter [individuals] from

9

engaging in protected activity.‖ Pardi v. Kaiser Found. Hosps., 389 F.3d 840, 850 (9th Cir. 2004)
(ADA employment retaliation case) (quotation marks omitted). ―[O]nly non-trivial . . . actions

11
United States District Court
Northern District of California

10

that would deter reasonable [individuals] from complaining . . . will constitute actionable

12

retaliation.‖ Brooks, 229 F.3d at 917; see also Burlington N. & Santa Fe Ry. Co. v. White, 548

13

U.S. 53, 57 (2006) (concluding that, in a Title VII employment retaliation case, a cognizable

14

adverse action is one that ―must be harmful to the point that [it] could well dissuade a reasonable

15

worker from making or supporting a charge of discrimination‖); Poland v. Chertoff, 494 F.3d

16

1174, 1180 (9th Cir. 2004) (an adverse action is one that is ―reasonably likely to deter the charging

17

party or others from engaging in protected activity‖ (quotation marks omitted)).

18

The District notes the only alleged adverse action taken by the District was that it ―failed to

19

pay Plaintiff‘s attorney for a period of less than two months, based on the District‘s contract

20

dispute with the attorney over the amount of fees she was entitled to under the settlement

21

agreement.‖ Mot. at 14 (citing FAC ¶¶ 13, 24); see also FAC ¶ 15. Even if as Plaintiff alleges she

22

was obligated to pay her attorney her fees not paid by the District during the brief delay (see FAC

23

¶¶ 21, 26, 37), as the District argues ―presumably once full payment was made by the District,

24

Plaintiff was reimbursed for this expense by her attorney‖ and ―[t]here is no allegation that the

25

District knew about Plaintiff‘s fee arrangement with her attorney, or intended to deprive her of any

26

financial resources‖ so as to constitute ―an objectively and materially adverse action[.]‖ Mot. at

27

14. While Plaintiff argues the District‘s actions ―were done with intent to dissuade Plaintiff - and

28

thus other parents who might similarly advocate for their children from so doing - and to
9

1

intimidate her from further advocacy for her disabled son‖ (Opp‘n at 7), the FAC does not contain

2

plausible or objectively reasonable allegations that either Plaintiff or others would be dissuaded

3

from advocating for their children as a result of the District‘s delay and conduct in this case.

4

Finally, as to the costs Plaintiff seeks to recover in filing this lawsuit, the District points out that

5

―this is not adverse action meted out by the District; the decision to pursue this case and incur

6

additional attorneys‘ fees was entirely [Plaintiff‘s] own.‖ Mot. at 14. The Court agrees in under

7

these circumstances, particularly as the District paid the full attorney‘s amount before it was

8

served with the initial Complaint.5
In sum, the FAC fails to state a claim under either the Rehabilitation Act or the ADA.

9
10

C.

Plaintiff has not indicated she has any additional relevant facts to add to her Complaint that

11
United States District Court
Northern District of California

No Leave to Amend

12

could cure the defects with her claims. See Opp‘n at 10. As granting Plaintiff leave to amend

13

would be futile, the Court finds no grounds to do so.
CONCLUSION

14

Based on the foregoing analysis, the Court GRANTS the District‘s Motion to Dismiss and

15
16

DISMISSES this action WITH PREJUDICE.
IT IS SO ORDERED.

17
18
19

Dated: December 8, 2016

20
______________________________________
MARIA-ELENA JAMES
United States Magistrate Judge

21

22
23
24
25
26
27
28

5

Moreover, Plaintiff‘s initial complaint did not assert a federal question, 28 U.S.C. § 1331, and
the amount in controversy alleged was well under the required $75,000 minimum, 28 U.S.C. §
1332.
10