A.V. v. Lemon Grove School District

Filing 33

ORDER on Motion for Attorneys' Fees [Doc. No. 30 ]. Signed by Judge Cathy Ann Bencivengo on 7/11/2017. (jjg)

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1 2 Jul 11 2017 3 4 s/ joanag 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 A.V. By and Through His Guardians Ad Litem ANDREA VAZ ANTUNES and ANTONIO VAZ ANTUNES, 13 14 15 Case No.: 3:16-cv-0803-CAB-(BLM) ORDER ON MOTION FOR ATTORNEYS’ FEES [Doc. No. 30] Plaintiff, v. LEMON GROVE SCHOOL DISTRICT, 16 Defendant. 17 18 This matter comes before the Court on Plaintiff A.V.’s (“A.V.”) Motion for 19 Attorneys’ Fees Under the Individuals with Disabilities Education Act (“IDEA”). [Doc. 20 No. 30.] The motion has been fully briefed and the Court finds it suitable for determination 21 on the papers submitted and without oral arguments in accordance with Civil Local Rule 22 7.1(d)(1). For the reasons set forth below, the Court grants in part the motion. 23 I. 24 A.V. is a 12-year-old boy who resides within the Lemon Grove School District 25 (“District”) and suffers from dyslexia, auditory working memory, and visual processing 26 deficits. A.V. was first determined to be eligible for special education in December 2007. 27 In the years that followed, District provided A.V with a free appropriate public education BACKGROUND 28 1 3:16-cv-0803-CAB-(BLM) 1 (“FAPE”) in both public and non-public schools and periodically assessed A.V. to evaluate 2 his educational needs and progress and made any necessary adjustments. Beginning in 3 December 2014, District and Parents began discussing where A.V should be placed moving 4 forward but could not reach an agreement regarding which school A.V. should attend. 5 On April 24, 2015, Parents on behalf of A.V. filed a due process hearing request 6 with the Office of Administrative Hearings (“OAH”). [Administrative Record (“A.R.”). 7 at 1-8.] The OAH complaint was amended on May 13, 2015, to include District’s offer to 8 placement at Sierra Academy (“Sierra’), a non-public school. [Id. at 13-24, 36.] 9 On May 26, 2015, District responded to Plaintiff’s OAH complaint by making the 10 required statutory settlement offer. [Doc. No. 21-2 at 119-121.] Subject to proof, District 11 offered to reimburse Parents for the tuition and mileage reimbursement that they had paid 12 to the non-public school Banyan Tree Foundations Academy (“Banyan”), dating back to 13 January of 2015 to the end of the 2014-2015 school year. [Id.] District propounded that it 14 would provide A.V. with a FAPE at Sierra and provide transportation to and from the 15 school. [Id.] As an alternative to Sierra, District would authorize A.V.’s attendance at 16 NewBridge, his Parents’ school of choice, but Parents would be entirely responsible for 17 transporting their son at no cost to District. [Id.] On June 5, 2015, Parents declined 18 District’s May 28, 2015, Statutory Settlement Offer claiming that the terms of the offer 19 were overly broad and lacked specificity. [Id. at 123-24.] On August 28, 2015, District 20 filed a complaint with the OAH to determine whether its offer of Sierra Academy 21 constituted a FAPE. [A.R. at 67-74.] On September 2, 2015, the OAH consolidated A.V. and District’s cases. [Id. at 88- 22 23 90.] 24 Administrative Law Judge Darrell Lepkowsky. On January 8, 2016, the ALJ issued a 25 Decision.1 [Doc. No. 1-1.] The ALJ found that A.V. was denied a FAPE between In October and November of 2015 a six day OAH hearing was held before 26 27 1 28 There were eight identified issues before the ALJ: (1) Did the District deny A.V. a FAPE by failing to make an appropriate, specific offer of placement on or after December 2014?; (2) Did District deny A.V. 2 3:16-cv-0803-CAB-(BLM) 1 December 20, 2014 and April 26, 2015, because District failed to make an appropriate, 2 specific offer of placement between December 20, 2014, and April 26, 2015. [Id. at 30- 3 33.] Further, the ALJ concluded that the District did not predetermine its offer of 4 placement at Sierra and was not required to make the offer at an individualized education 5 program (“IEP”) team meeting. [Id. at 34-36.] Additionally, the ALJ held that the failure 6 to have a representative from Sierra at the May 20, 2015, IEP team meeting was not a 7 FAPE violation and that Parents had meaningfully participated in the meeting. [Id. at 36- 8 41.] Furthermore, the ALJ found that the settlement discussions did not limit A.V.’s 9 remedies, and held that A.V.’s Parents were entitled to reimbursement for A.V.’s tuition at 10 Banyan from January 5, 2015, to June 10, 2015, totaling $27,030, and for mileage costs for 11 transporting A.V. to Banyan in the amount of $1,604.67.2 [Id. at 45-47.] 12 On April 4, 2016, A.V., by and through his Parents as guardians ad litem, filed a 13 complaint in the Southern District of California for partial reversal of the decision of the 14 OAH pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 15 16 17 18 19 20 21 22 23 24 25 26 27 28 a FAPE with regard to the January 23, 2015 IEP team meeting by: (a) failing to offer a specific non-public school placement; and (b) failing timely to provide A.V. with a copy of the January 23, 2015 IEP document and meeting notes?; (3) Did the District’s April 25, 2015 offer of placement at Sierra deny A.V. a FAPE, because: (a) District predetermined its offer of placement at Sierra; (b) District made the offer through correspondence between its attorney and A.V.’s attorney instead of at an IEP meeting; and, (c) District failed to convene an IEP team meeting to discuss A.V.’s placement subsequent to making the offer of placement?; (4) Did District deny A.V. a FAPE at the May 20, 2015 IEP meeting, by: (a) Failing to have a non-public school representative from Sierra present; and, (b) denying A.V’s parents the opportunity to meaningfully participate in the meeting?; (5) Did District deny A.V. a FAPE by failing to conduct a vision therapy assessment at any time after the December 15, 2014 IEP meeting?; (6) Did District deny Student a FAPE from December 15, 2014, to the [date of the OAH hearing], by failing to make an appropriate and/or sufficient offer of occupational therapy, speech and language therapy, or vision therapy services?; (7) Did District offer A.V. a FAPE in the least restrictive environment in the triennial IEP dated December 15, 2014, as amended in January 23, 2015, and May 20, 2015?; (8) Does the settlement agreement between the parties, executed on February 28, 2014, and March 3, 2014, limit or otherwise preclude any remedy to which A.V. might otherwise be entitled for prevailing on any issue brought in this case? [A.R. at 106162.] 2 Specifically, the ALJ found that A.V. prevailed on a portion of Issue 1; on Issue 2(a); on a portion of issue 7; and on Issue 8 [A.R. at 1106.] 3 3:16-cv-0803-CAB-(BLM) 1 1400 et seq.3 [Doc. No. 1]. On June 22, 2016, District filed a cross-complaint seeking 2 partial reversal of the decision rendered by the OAH.4 [Doc. No. 14.] 3 On November 4, 2016, the parties filed cross motions for summary judgment. [Doc. 4 Nos. 23, 24.] On February 24, 2017, this Court issues an Order affirming the ALJ’s 5 decision and denying both motions for summary judgment. [Doc. No. 29.] The Court also 6 found that A.V. was a prevailing party at the ALJ hearing. 7 On March 6, 2017, Plaintiff filed his application for attorneys’ fees, requesting a 8 total of $122,477.73. [Doc. No. 30-2 at 14-15.] Defendant filed its opposition [Doc. No. 9 31] and Plaintiff filed his reply [Doc. No. 32]. 10 II. 11 The IDEA provides that “the court, in its discretion may award reasonable attorneys’ 12 fees as part of the costs to a prevailing party who is the parent of a child with a disability.” 13 20 U.S.C. § 1451(i)(3)(B). “The prevailing party inquiry does not turn on the magnitude 14 of the relief obtained.” Farrar v. Hobby, 506 U.S. 103, 111 (1992). Rather “‘a prevailing 15 party’ is one who ‘succeed[s] on any significant issue in litigation which achieves some of 16 the benefit the parties sought in bringing the suit.’” Van Duyn ex rel. Van Duyn v. Baker LEGAL STANDARD 17 18 19 20 21 22 23 24 25 26 27 28 In his complaint Plaintiff alleged that the ALJ erred in holding that Defendant’s April 25, 2015, offer of placement at Sierra was not a predetermination (Issue 3(a)). [Doc. No 1 ¶ 21.] Further, Plaintiff alleged that the ALJ was incorrect in ruling that the failure to have a non-public school representative at the May 20, 2015, IEP meeting was not a denial of FAPE (Issue 4(a)). [Id. ¶ 22.] Relatedly, Plaintiff also claimed that the ALJ incorrectly ruled that Parents were not denied a meaningful opportunity to participate in the May 20, 2015, IEP meeting (Issue 4(b)). [Id.] Plaintiff also sought reimbursement of reasonable attorneys’ fees as the prevailing party in the OAH proceeding, as well as attorneys’ fees incurred as a result of filing this action. [Id. ¶ 24.] 4 Defendant’s cross complaint included multiple challenges to the ALJ’s findings. First, Defendant contended that the OAH erred when it ruled that Plaintiff was denied a FAPE. (Issues 1, 2a, 7). [Doc. No. 14 ¶ 22.] Second, Defendant asserted that the ALJ erred in allowing Plaintiff an award of remedies and by deciding that Parents were entitled to tuition reimbursement for A.V.’s time at Banyan after December 20, 2014 (Issue 8). [Id. ¶¶ 25, 26, 28.] Relatedly, Defendant argued that the ALJ did not give due weight to the ongoing settlement discussions between the Parties or the offers made by the District, or fully consider the District’s efforts to resolve Plaintiff’s placement (Issue 8). [Id. ¶¶ 23, 24.] Fourth, Defendant argued that Plaintiff should be not be accorded prevailing party status. [Id. ¶ 30.] 3 4 3:16-cv-0803-CAB-(BLM) 1 Sch. Dist. 5J, 502 F.3d 811, 825 (9th Cir. 2007) (quoting Parents of Student W. v. Puyallup 2 Sch. Dist., No. 3, 31 F.3d 1489, 1498 (9th Cir. 1994)).5 3 The most useful starting point for determining attorney’s fees awarded under the 4 IDEA is by performing the lodestar calculation – the number of hours reasonably expended 5 on the litigation multiplied by a reasonable hourly rate. Hensley v. Eckerhart, 461 U.S. 6 424, 433 (1983). For a fee request to be adjudged reasonable it must “exclude from this 7 initial fee calculation hours that were not ‘reasonably expended.’” Id. at 434. See also 8 Webb v. Bd. Of Educ. of Dyer Cnty., Tenn., 471 U.S. 234, 242 (1985) (Where a statute 9 provides for fee shifting in connection with litigation, “[t]he time that is compensable under 10 [that statute] is that ‘reasonably expended on the litigation.’”). Counsel for the prevailing 11 party are therefore cautioned to “make a good faith effort to exclude from a fee request 12 hours that are excessive, redundant, or otherwise unnecessary.” Hensley, 461 U.S. at 433. 13 Generally, a partially prevailing plaintiff may not recover fees for her unsuccessful 14 claims because “the level of a plaintiff’s successes is relevant to the amount of fees to be 15 awarded.” Aguirre v. L.A. Unified Sch. Dist., 461 F.3d 1114, 1118-1121 (9th Cir. 2006) 16 (adopting the Supreme Court’s degree of success principles enumerated in Hensley to 17 attorney’s fees awarded under the IDEA). In these situations, a district court has discretion 18 in deciding whether to attempt to identify specific hours that should be eliminated, or it 19 may simply reduce the award to account for the limited success. Hensley, 461 U.S. at 437. 20 21 22 23 24 25 26 27 28 Specifically, “[t]he success must materially alter the parties’ legal relationship, cannot be de minimis and must be causally linked to the litigation brought.” Van Duyn ex rel. Van Duyn v. Baker School Dist. 5J, 502 F. 3d 811, at 825 (9th Cir. 2007) (citations omitted). See also Tex. State Teachers Ass’n v. Garland Indep. Sch. Dist., 489 U.S. 782, 792 (1989) (“The touchstone of the prevailing party inquiry must be the material alteration of the legal relations of the parties. . . .’). A legal relationship has been materially altered where “the plaintiff become entitled to enforce a judgment, consent decree, or settlement against the defendant.” Fisher v. SJB-P.D. Inc., 214 F. 3d 1115, 1118 (9th Cir. 2000) (quoting Farrar, 506 U.S. at 113 (1992)); see also Shapiro ex rel. Shapiro v. Paradise Valley Unified Sch. Dist. No. 69, 373 F.3d 857, 865 (9th Cir. 2004); V.S. ex rel. A.O. v. Los Gatos-Saratoga Joint Union High Sch. Dist., 484 F.3d 1230, 1233 (9th Cir. 2007) 5 5 3:16-cv-0803-CAB-(BLM) 1 III. 2 Having previously awarded Plaintiff prevailing party status,6 the Court will turn to 3 DISCUSSION the requested fee amount to determine whether it’s reasonable. 4 With his motion, Plaintiff submits a declaration from his counsel along with 5 supporting documentation that provide an itemized description of the time spent by his 6 counsel on this matter beginning on August 21, 2014 and ending on March 1, 2017. [Doc. 7 No. 30-3.] The declaration also sets forth counsel and his colleagues’ qualifications and 8 hourly rates. Plaintiff requests a total fee award in the amount of a total of $122,477.73, 9 demanding reimbursement of $74,105.90 for the fees associated with the due process 10 hearing and $48,371.47 in fees associated with the district court claim. [Doc. No. 30-2 at 11 14-15.] Defendant does not dispute the hourly rate but takes issue with Plaintiff’s inclusion 12 of fees to cover attendance at IEP meetings or other general representation activities which 13 occurred prior to the initiation of the administrative proceeding. [Doc. No 31 at 6-11.] 14 Additionally, Defendant claims that Plaintiff may not recover fees incurred after his 15 rejection of the district’s pre-hearing settlement offer. [Id. at 11-18.] Finally Defendant 16 asserts that the fee award must be reduced to reflect Plaintiff’s degree of success and 17 Plaintiff may not recover attorneys’ fees for his district court appeal. [Id. at 18-23.] A. Inclusion of fees incurred after rejection of district’s pre-hearing settlement offer 18 19 20 Defendant argues that Plaintiff should not recover fees for any work performed by 21 his attorney subsequent to the rejection the timely written offer it tendered on May 28, 22 23 24 25 26 27 6 In its earlier order denying both cross motions for summary judgment this Court concluded: “Plaintiff was afforded significant relief that materially altered the relationship of the parties. A.V. was found to have been denied a FAPE between December 2014 and April 2015. To remedy the denial of a FAPE, the ALJ required District to reimburse Parents for expenses associated with Banyan through the end of the 2015 school year. [A.R. 1105 ¶ 83.] The fact that the ALJ ruled in favor of the District on other issues does not change the fact that Plaintiff prevailed at the ALJ hearing.” [Doc. No, 29 at 32:22-28.] 28 6 3:16-cv-0803-CAB-(BLM) 1 2015. Further, Defendant asserts that the ALJ’s award was “not more favorable to the 2 parents that the offer of settlement” and that it was unreasonable for Parents to reject its 3 offer. In response, Plaintiff contends that he was justified in rejecting Defendant’s offer 4 because it did not include a provision to pay for his attorney’s fees and maintained a 5 provision that limited the District’s obligations regarding A.V.’s placement which could 6 have potentially precluded him from services, future assessments, and transportation.7 7 [Doc. No. 32 at 5-7.] 8 Under the IDEA, if a parent “protracts the litigation by rejecting a favorable offer, 9 he risks suffering a financial penalty.” T.B ex rel. Brenneise v. San Diego Unified Sch. 10 Dist, 806 F.3d 451, 476-76 (9th Cir. 2015). This is because IDEA prohibits an award of 11 attorneys’ fees and related costs subsequent to the time of a written offer of settlement to a 12 parent if: “(I) the offer is made within the time prescribed by Rule 68 of the Federal Rules 13 of Civil Procedure or, in the case of an administrative proceeding, at any time more than 14 10 days before the proceeding begins; (II) the offer is not accepted within 10 days; and (III) 15 the court or administrative hearing officer finds that the relief finally obtained by the 16 parents is not more favorable to the parents than the offer of settlement.” 20 U.S.C. § 17 1415(i)(3)(D). “To deny attorneys’ fees under this provision, the court must find that the 18 relief obtained from the ALJ was “not more favorable to the parents than the offer of 19 settlement.” 20 1415(i)(3)(D)(i)(III)) (emphasis added in original) (“it should be recognized that the statute 21 specifies that the comparison of the settlement offer versus the result of litigation must be 22 made from the perspective of the parents, not the district’s”). An exception to this 23 prohibition allows an award of fees and costs to be “made to a parent who is the prevailing 24 party and who was substantially justified in rejecting the settlement offer.” 20 U.S.C § 25 1415(i)(3)(E). T.B. ex rel. Brenneise, 806 F.3d at 476 (quoting 20 U.S.C. § 26 27 7 28 Parents initially rejected the settlement offer because it failed to provide the relief being sought and they considered the terms to be overboard and lacking in specificity. [Doc. No. 21-2 at 123-124.] 7 3:16-cv-0803-CAB-(BLM) 1 Here, the District’s statutory settlement offer would have reimbursed Parents for 2 tuition at Banyan subject to proof and documentation of attendance and mileage 3 reimbursement dating back to January of 2015 through to the end of 2014-2015 school 4 year. [Doc No. 21-2 at 119-121; Doc No. 31-1 at ¶ 7.] As part of the offer District would 5 provide occupational therapy services at 30 minutes a week and speech therapy service at 6 50 minutes per week until the end of 2014-2015 school year while Banyan was in session. 7 [Doc No. 21-2 at 120; Doc No. 31-1 at ¶ 7.] If these related services were provided by 8 Banyan at additional costs, District, subject to proof, would reimburse the monies. [Doc 9 No. 21-2 at 120.] If these services were not provided by Banyan, District would procure 10 and pay for them via a certified non-pubic agency. [Id.] District also offered A.V. two 11 prospective placements: (1) he could attend Sierra with District paying the round trip 12 transportation costs or (2) he could attend Newbridge with Parents being entirely 13 responsible for paying the transportation costs even if a later IEP determined A.V. should 14 attend NewBridge. [Id.] The statutory settlement offer provided that if Parents selected 15 NewBridge “the only prospective waiver of claims shall relate to parents assuming full 16 responsibility for transportation costs.” [Id.] It did not include an offer to pay attorneys’ 17 fees and costs and specifically stated that each party would bear its own fees and costs. 18 The ALJ’s decision reimbursed Parents $27,030 for A.V.’s tuition at Banyan from 19 January 5, 2015, to June 10, 2015, and awarded $1,604.67 in mileage costs for transporting 20 A.V. to and from Banyan. The ALJ did not require District to place A.V. at NewBridge, 21 finding that Sierra could provide A.V. with a FAPE and did not place any prospective 22 transportation costs on Parents. [Doc. No. 1-1.] 23 Defendant focuses on what was included in the terms of the settlement itself to 24 illustrate that the ALJ’s decision was not more favorable than the statutory settlement offer. 25 But, Defendant fails to consider what was omitted from the Settlement and the ALJ’s 26 decision. Under the terms of the proposed settlement Parents would not have been able to 27 seek an award for fees and costs already incurred. Parents’ attorney had been representing 28 them for approximately six months, had been racking up billable hours and had revoked 8 3:16-cv-0803-CAB-(BLM) 1 the earlier offer to eliminate attorneys’ fees and costs in an attempt to informally settle this 2 matter. Thus, “[b]y declining the offer, the [Antunes] retained the right to seek an award 3 of fees and costs. In that way, the offer was less favorable than the relief obtained.” T.B. 4 ex. rel. Brenneise, 860 F.3d at 478. Similarly, Defendant’s related argument that the ALJ 5 award was not more favorable to Parents because it did not provide them with the choice 6 of two non-public schools overlooks the prospective waiver related to one of the offered 7 schools that was included in the settlement. If Parents agreed to the offer, A.V.’s future 8 attendance at NewBridge would be predicated on his Parents ability to foot the bill for the 9 costs of daily roundtrip transportation. Proposing Parents prospectively agree to pay 10 transportation costs for their child to attend a specific school, even if the school is later 11 offered by District as that child’s FAPE, imposes a monetary cost on Parents. The ALJ did 12 not impose any prospective transportation costs on Parents and therefore provides another 13 way, “the offer was less favorable than the relief obtained.” Id. In light of these omissions, 14 and viewing the offer from Parents perspective, the Court finds the ALJ’s decision was not 15 more favorable than the statutory settlement offer. 16 Defendant also argues that A.V’s parents had no reasonable basis for rejecting its 17 offer. The Court disagrees. The fact that the proposed settlement did not include an offer 18 to pay attorneys’ fees provided Parents’ with sufficient justification for rejecting it. As the 19 Court of Appeals noted, ‘[t]here is little precedent interpreting the phrase ‘substantially 20 justified,’ but examples from other cases include situations where the offer failed to cover 21 the parents’ attorney fees.” Beauchamp v. Anaheim Union High Sch. Dist., 816 F.3d 1216, 22 1222 (9th Cir. 2016) (citing Dicks v. D.C., 109 F. Supp. 3d 126, 131-32 (D.D.C. 2015)). 23 Cases within this circuit have found that a failure to provide for attorneys’ fees can be 24 interpreted as providing sufficient justification for rejecting a settlement offer. See, e.g., 25 Adams v. Compton Unified Sch. Dist., Case No CV 14-04753 BRO (PJWx, 2015 WL 26 12748005, at *5 (C.D. Cal. July 16, 2015) (“failure to provide for attorney’s fees in their 27 statutory settlement offer when Plaintiffs had a reasonable basis to expect to recover fees 28 substantially justified Plaintiffs in rejecting Defendants’ [] settlement offer.”); Hawkins v. 9 3:16-cv-0803-CAB-(BLM) 1 Berkeley Unified Sch. Dist., No. C-07-4206 EMC, 2008 U.S. Dist. LEXIS 94673 (N.D. 2 Cal. Nov. 20, 2008) (finding that the insufficiency of the attorney’s fees offered in 3 settlement offer substantially justified the plaintiff’s decision to reject the offer). Further, 4 proposing Parents prospectively agree to pay transportation costs for their child to attend a 5 specific school, even if the school is later offered by District as that child’s FAPE, imposes 6 a monetary cost on Parents that cuts at the heart of the free public education IDEA 7 promotes. The inclusion of this prospective waiver regarding future transportation costs 8 also provides a reasonable justification for rejecting the statutory settlement offer. 9 Accordingly, the Court concludes that Parents were substantially justified in rejecting 10 Defendant’s offer because it did not provide any monies towards attorneys’ fees and it was 11 restricting A.V.’s rights under the IDEA. In light of the above, the Court finds that the statutory bar to an award of attorneys’ 12 13 fees and related costs is not applicable. 14 B. Inclusion of fees to cover activities that occurred prior to the initiation of the administrative proceedings 15 16 Next, Defendant asserts that Plaintiff improperly seeks substantial fees for work 17 performed by Mr. Schwartz related to the development of his IEP and future school 18 placement.8 In support of its position, Defendant notes that from August 21, 2014 through 19 May 27, 2014, Mr. Schwartz was the sole attorney proving A.V. legal services, before the 20 case transitioned to attorney Erin Minelli who directly handled the due process hearing. It 21 is Defendant’s position that once Ms. Minelli became involved, Mr. Schwartz’s role was 22 to “continue and complete discussions with the District’s counsel and his clients to come 23 to an agreement on the IEP.” [Doc. No. 31 at 10:7-9.] In response, Plaintiff asserts that 24 25 26 27 28 8 Defendant also asserts that some of the hours Mr. Schwartz has included are related to the IEP process and A.V.’s placement and are therefore not compensable. Further, Defendant argues that fees listed for continued communications between Mr. Schwartz and the District regarding A.V.’s placement, in which Ms. Minelli did not participate, were not related to the due process hearing and therefore are also not compensable. 10 3:16-cv-0803-CAB-(BLM) 1 Mr. Schwartz bill does not include any time for preparation and attendance at the IEP 2 meetings. Defendant posits that since Plaintiff’s due process action was not initiated until 3 April 23, 2015, any requests for time that predate the commencement of the action should 4 be excluded. Specifically, Defendant takes issue with Plaintiff’s inclusion of billable hours 5 from August 21, 2014 through to April 23, 2015, other than for the preparation of the 6 complaint. Plaintiff counters that “time spent on the litigation even if occurs before an 7 initiating document is filed, are compensable.” [Doc. No. 32 at 3:8-9.] 8 9 Fees related to time spent on the litigation, prior to the commencement of a formal suit are compensable. As the Supreme Court has explained “some of the services 10 performed before a lawsuit is formally commenced by the filing of a complaint are 11 performed ‘on the litigation.’ Most obvious examples are the drafting of the initial 12 pleadings and the work associated with the development of the theory of the case.” Webb 13 v. Bd. Of Educ. Cnty., Tenn., 471 U.S. 234, 243 (1985). But, the IDEA explicitly provides 14 that courts may not award fees for an attorney’s attendance at an IEP meeting. 20 U.S.C. 15 § 1415(i)(3)(D)(ii). Courts within the Ninth Circuit have found that attendance at IEP 16 meetings or resolution sessions9 and the work done in relation to them is not compensable. 17 See LaToya A. V. S.F. Unified Sch. Dist., No. 3:15-CV-04311-LB, 2016 WL 344558, at 18 *10 (N.D. Cal. Jan. 28, 2016) (“The court excludes all fees relating to the . . . resolution 19 session.”); Hiram C. v. Manteca Unified Sch. Dist., No. S-03-4568 WBS KJM, 2004 WL 20 4999156, at *2 (E.D. Cal. Nov. 5, 2004) (denying request for compensation at IEP meetings 21 because “20 U.S.C. § 1415(i)(3)(d)(ii) prohibits any award of attorney’s fees ‘relating to 22 any meeting of the IEP Team, unless such meeting is convened as a result of an 23 administrative proceeding or judicial action…”). 24 25 26 27 28 A “resolution session” is a meeting between parents and relevant IEP team members that the IDEA mandates within fifteen (15) days of the District receiving notice of a new due process filing, to discuss the student’s program without assistance or determination by a neutral. 20 U.S.C. § 1415(f)(1)(B)(i). 9 11 3:16-cv-0803-CAB-(BLM) 1 The Court has reviewed the billable entries that Defendant assert are related to the 2 IEP. [Doc. No. 31-2 at 2.] The majority of the challenged entries were for time spent in 3 April 2016, following the filing of the complaint for partial reversal of the OAH decision. 4 The Court finds nothing that substantiates Defendant’s position and is mindful of the fact 5 that, based on the record before it, the last IEP meeting between the parties occurred in 6 May 2015. Being unable to say with any degree of certainty that these entries related to 7 the IEP or resolution sessions, the Court declines to discount them from the time billed. 8 However, the Court agrees with Defendant that the request includes time spent by 9 Mr. Schwartz that cannot be interpreted as being related “to this litigation.” Plaintiff has 10 submitted a blanket request for fees, dating back months before commencement of the due 11 process hearing, without providing any explanation as to how they are related to work “on 12 this litigation.” The Court finds it difficult to conceive how work performed between 13 August 21, 2014 and March 2015 can be considered “work on a litigation” that was not 14 even commenced until April 23, 2015, and nothing in the entries, most of which are labeled 15 as correspondence/communication with client/or district, suggest that the work related to 16 the drafting of the initial pleadings or development of the theory of the case. Plaintiff’s 17 cursory response that “Counsel spent several months preparing for due process, then in 18 January 2015, at the request of Defendant, began settlement negotiations outside of the IEP 19 process” [Doc. No. 32 at 3:10-14] does not assuage the Court’s concern. Additionally, the 20 fees being requested by the Plaintiff are for work performed by Mr. Schwartz, who 21 Defendant asserts and Plaintiff does not contest, was not the attorney primarily responsible 22 for litigating the due process case. In light of the lack of substantiation regarding the 23 relatedness of this work, the Court concludes that the work billed for the month preceding 24 the filing of the complaint was work reasonably performed on this litigation. 25 Moreover, the Court finds Plaintiff has overlooked the important caveat of the Webb 26 ruling, that the compensability of pre-formal commencement fees is limited to “some of 27 the services performed before the lawsuit is formally commenced.” Webb, 471 U.S. at 243. 28 The Supreme Court did not hold that all fees are reimbursable. Accordingly, the Court 12 3:16-cv-0803-CAB-(BLM) 1 declines to reimburse Plaintiff for work done from August 21, 2014 through March 22, 2 2015 and reduces the fee request by $6,047.50.10 3 C. Reduction of fees to reflect degree of success 4 Defendant also argues that Plaintiff’s recovery should be reduced by 50 percent to 5 appropriately reflect his partial success at the OAH. Taking the opposite position, Plaintiff 6 asserts that substantial relief awarded at the OAH is illustrative of the excellent results 7 achieved and therefore warrants granting the full fee amount. [Doc. No. 30-2 at 5-9; Doc. 8 No. 32 at 8-9.] 9 In determining the amount of fees to award, district courts must consider the results 10 obtained. Hensley, 461 U.S. at 434. In situations, such as here, where a plaintiff has been 11 deemed a prevailing party, even though he had only succeeded on some of his claims for 12 relief, the court must ask two questions: 13 15 [first] did the plaintiff fail to prevail on claims that were unrelated to the claims on which he succeeded? Second, did the plaintiff achieve a level of success that makes the hours reasonably expended a satisfactory bases for making a fee award? 16 Hensley, 461 U.S. at 434. “Where a plaintiff has obtained excellent results, his attorney 17 should recover a fully compensatory fee.” Id. at 435. In such circumstances reduction of 18 the fee award is not required simply because plaintiff has not prevailed on every issue. Id. 19 “If on the other hand, a plaintiff has achieved only partial or limited success, the product 20 of hours reasonably expended on the litigation as a whole times a reasonable hourly rate 21 may be an excessive amount.” Id. at 436. Where only partial or limited success has been 22 achieved the absence of precise formula or rule for determining the appropriate reduction 23 is based on degree of success obtained. Id. See also Aguirre, 461 F.3d at 1118, 1121 24 (Although “[t]here is no precise rule or formula for making [fee] determinations,” “the 25 most critical factor is the degree of success obtained.”) (quoting Hensley, 461 U.S. at 424, 14 26 27 10 28 In determining this amount the Court has tallied up the billed amount found at pages 4– 10 in Doc. No. 30-3 for time entries between 08/21/14 through 03/16/2015. 13 3:16-cv-0803-CAB-(BLM) 1 436). Using its discretion a district court “may attempt to identify specific hours that should 2 be eliminated, or it may simply reduce the award to account for the limited success.” Id. 3 Turning to the first question, the Court finds that plaintiff did not fail to prevail on 4 claims that were unrelated to the claims on which he succeeded. Here, Plaintiff’s claims 5 for relief involved a common core of facts and were based on related legal theories. All of 6 his claims stemmed from Defendant’s obligation to provide Plaintiff with a FAPE under 7 IDEA and whether Defendant followed the statutory requirements for developing his IEP. 8 Finding much of counsel’s time to be “devoted generally to the litigation as a whole,” the 9 Court “focus[es] on the significance of the overall relief obtained by the plaintiff in relation 10 to the hours reasonable expended on the litigation.” Id. at 435. 11 In determining the level of Plaintiff’s success the Court will considers the claims 12 pursued and outcome of the due process hearing. There were eight identified issues before 13 the ALJ, Plaintiff originally argued that Defendant failed to provide A.V. with a FAPE 14 based on six issues, excluding subparts. Defendant, in turn, presented two issues for the 15 ALJ to determine, with the parties stipulating that Sierra would meet student’s placement 16 needs. Defendant prevailed on a majority of the issues, with the ALJ concluding that: (1) 17 Defendant did not predetermine its offer of placement at Sierra; (2) Defendant was not 18 required to make the offer of placement at Sierra at the IEP team meeting; (3) Defendant 19 did not violated FAPE by failing to have a representative from Sierra present at an IEP 20 meeting and; (4) that Parents had meaningfully participated in the meeting. But, the ALJ 21 found that Plaintiff prevailed on two distinct issues and portions of two other issues,11 22 23 11 24 25 26 27 28 The ALJ found that Plaintiff prevailed on Issues 2 (a) and 8 and on portions of Issues 1 and 7. Issue 2 (a) related to the issue of whether District denied A.V. a FAPE with regard to the January 23, 2015 IEP team meeting but failing to offer a specific non-public school placement. Issue 8 asked if the settlement agreement between the parties, executed on February 28, 2014, and March 3, 2014, limit or otherwise preclude any remedy to which A.V. might otherwise be entitled for prevailing on any issues brought in this case. The question posed in Issue 1 was did District deny A.V. a FAPE by failing to make an appropriate, specific offer of placement on or after December 2014? Issue 7 asked if District offered A.V. a FAPE in the least restrictive environment in the triennial IEP dated December 15, 2014, as amended in January 23, 2015, and May 20, 2015. 14 3:16-cv-0803-CAB-(BLM) 1 determining that Plaintiff was denied a FAPE between December 2014 and April 2015. To 2 remedy the denial of a FAPE, the ALJ required Defendant to reimburse Parents for 3 expenses associated at Banyan through the end of the 2015 school year, including tuition 4 and transportation costs. While most of the issues Plaintiff did not prevail on were 5 regarding purported procedural violations, he also failed to secure the additional vision and 6 occupational therapies and speech and language services he had requested. At best, 7 Plaintiff only secured approximately one-third of the remedies sought and prevailed on half 8 of the issues he presented.12 [Doc. No. 31-2 at 9-15.] 9 In light of the ALJ’s findings and remedies awarded it “cannot be said that Plaintiff 10 obtained ‘excellent results’ that would entitle h[im] to a full attorneys’ fee award.” L.R. v. 11 Hollister Sch. Dist., Case No.: 5:13-MC-80085-EJD, 2014 WL 1118019, at * 6 (N.D. Cal. 12 Mar. 19, 2014). As a consequence, the Court finds that a reduction in attorneys’ fees is 13 appropriate but that there is no clear determination point of what that amount should be. 14 Having familiarized itself with the issues at the summary judgment stage, and in 15 consideration of Plaintiff’s degree of success and the relief afforded him at the due process 16 hearing, the Court applies its discretion and finds a 33 percent reduction in the requested 17 attorneys’ fees award to be reasonable and appropriate. Hensley, 461 U.S. at 437. 18 D. Inclusion of Appellate Costs 19 Defendant’s penultimate argument is that Plaintiff may not recover attorneys’ fees 20 for his district court appeal since he was not the prevailing party on the appeal. Not 21 surprisingly, Plaintiff takes the opposite position, asserting that he was the prevailing party 22 at both the Administrative Hearing and the District Court appeal and is therefore entitled 23 to an award of attorneys’ fees for both. [Doc. No. 30-2 at 5; Doc. No. 32 at 9.] 24 25 26 27 28 12 In determining how many issues Plaintiff prevailed on in this case is not as simple as reviewing the issues he presented in his amended complaint. After consolidation of Plaintiff and Defendant’s cases, the parties clarified what the issues were in a joint exhibit, with the ALJ noting that Plaintiff’s withdraw of two of his earlier issues. This issues in the joint exhibit was later re-numbered and re-worded by the ALJ for the sake of uniformity and clarity. 15 3:16-cv-0803-CAB-(BLM) 1 A prevailing party for the purposes of awarding attorney’s fees is a party who 2 “succeed[s] on any significant issue in litigation which achieves some of the benefit the 3 parties sought in bringing the suit.” Parents of Student W., 31 F.3d at 1498. Plaintiff is 4 indeed correct that this Court previously determined that he “was the prevailing party at 5 the ALJ hearing.” [Doc. No. 29 at 32.] The Court also agrees with Plaintiff that, to the 6 extent that he successfully defended against Defendant’s summary judgment motion and 7 maintained the ALJ’s previous reimbursement award, he prevailed on the appeal. The 8 Court has reviewed the submitted invoice and has confirmed that Plaintiff is not submitting 9 any requests for fees associated with his unsuccessful summary judgment motion. While 10 the time spent on these activities appear as line items, the rate and total billed for this time 11 is $0.00. [Doc. No. 30-3 at 34.] Accordingly, the Court declines to remove time spent 12 responding to Defendant’s summary judgment motion from the fee award. 13 E. Additional Reductions Requested 14 Finally, Defendant’s seek to remove the time spent by attorney Matthew Storey at 15 the due process hearing and the travel charges for Ms. Minelli to attend the hearing from 16 the attorneys’ fee award. Plaintiff counter that reimbursement for travel expenses is not 17 unreasonable and that the attorneys’ fees have already been reduced to avoid duplicative 18 billing. 19 “The touchstone in determining whether hours [spent on travel time] have been 20 properly claimed is reasonableness.” Suzuki v. Yuen, 678 F.2d 761, 764 (9th Cir. 1982). 21 “Plaintiff bears the burden of establishing that the travel time that he billed for is 22 compensable in the local community.” K.M. ex. rel. Bright v. Tustin Unified Sch. Dist., 78 23 F. Supp. 3d 1289, 1304 (C.D. Cal. June 1, 2015) (citation omitted). Here, Plaintiff has not 24 introduced any evidence establishing that local attorneys customarily bill their clients for 25 travel time to due process hearings. Rather, Plaintiff simply cites to a district court case in 26 the Eastern District. Having not met his burden, the Court reduces Plaintiff’s attorneys’ 27 fee award by $914.50 to reflect the time Ms. Minelli spent travelling to and from the due 28 process hearing. [Doc. No. 30-3 at 24-25.] 16 3:16-cv-0803-CAB-(BLM) 1 As to Mr. Storey’s presence at the due process hearing, the Court finds nothing 2 untoward in his presence at the due process hearing. Furthermore, Defendant has not 3 provided the Court with any authority that holds that a second attorney’s presence at a due 4 process hearing is not compensable. Accordingly, the Court declines to deduct the 32.2 5 hours spent by Mr. Storey at the OAH from the requested fees. 6 IV. 7 After making the reductions described above, the total amount of attorneys’ fees to 8 which Plaintiff’s counsel are entitled is 66 percent of $115,515.37.13 Accordingly, the 9 Court awards Plaintiff’s counsel $77,010.28 in attorneys’ fees. 10 11 CONCLUSION The Clerk shall close this case. Dated: July 11, 2017 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 $122,477.37 - $6,047.50 (for worked not “on this litigation) – $914.50 (travel time) = $115,515.37 – $38,505.09 (33%) = $77,010.08. 13 28 17 3:16-cv-0803-CAB-(BLM)

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