K.M. ex rel. Bright v. Tustin Unified Sch. Dist.

• Decision Date: 01 June 2015
• Docket Number: Case No. SA CV 10–1011–DOC MLGx.
• Citation: 78 F.Supp.3d 1289
• Court: U.S. District Court — Central District of California
• Parties: K.M. a minor, by and through her Guardian Ad Litem, Lynn BRIGHT, Plaintiff, v. TUSTIN UNIFIED SCHOOL DISTRICT, Defendant.

78 F.Supp.3d 1289

K.M. a minor, by and through her Guardian Ad Litem, Lynn BRIGHT, Plaintiff

v.TUSTIN UNIFIED SCHOOL DISTRICT, Defendant.

Case No. SA CV 10–1011–DOC MLGx.

United States District Court, C.D. California, Southern Division.

Signed June 1, 2015.

David M. Grey, Grey and Grey, Santa Monica, CA, for Plaintiff.

Jack Byron Clarke, Jr., Best Best and Krieger, Riverside, CA, Cary Kit Quan, Declues Burkett & Thompson LLP, Huntington Beach, CA, for Defendant.

ORDER GRANTING IN PART PLAINTIFF'S MOTION FOR ATTORNEY'S FEES [95]

DAVID O. CARTER, District Judge.

Before the Court is Plaintiff K.M.'s Motion for Attorney's Fees. Oral arguments were heard on May 26, 2015. Having reviewed the papers and supporting exhibits, and considered the oral arguments, the Court rules as follows: the Motion is GRANTED IN PART. The Court finds that a fee award of 50% of the lodestar for work done during the underlying administrative proceeding, 75% of the lodestar for work done at the district court through summary judgment, and 100% of the lodestar for work done on appeal and subsequently is appropriate given the limited success in this matter, as K.M. prevailed solely on her American with Disabilities Act and California Unruh Act claims, but not her claims for a Free and Appropriate Education (“FAPE”) under the Individual with Disabilities Education Act (“IDEA”).

I. BACKGROUND

A. Underlying Factual and Procedural Background

The factual background is drawn from the Ninth Circuit's Order in K.M. ex rel. Bright v. Tustin Unified Sch. Dist. (“Bright ”), 725 F.3d 1088, 1092–94 (9th Cir.2013)cert. denied, ––– U.S. ––––, 134 S.Ct. 1493, 188 L.Ed.2d 376 (2014) and cert. denied sub nom. Poway Unified Sch. Dist. v. D.H. ex rel. K.H., ––– U.S. ––––, 134 S.Ct. 1494, ––– L.Ed.2d –––– (2014).

At the time relevant in this case, K.M. was a student in the Tustin Unified School District. Because of her hearing loss, K.M. was eligible for special education services under the IDEA. Her eligibility meant that Tustin was required to provide K.M. with a “free appropriate public education” (“FAPE”) suited to her individual needs. 20 U.S.C. § 1412(a)(1). As required by the statute, Tustin convened regular meetings to develop an annual “individualized education plan” (“IEP”) identifying K.M.'s educational goals and laying out which special services Tustin will provide to address those goals in the upcoming academic year. See id. § 1412(a)(4).

In spring 2009, when K.M. was completing the eighth grade, Tustin and her parents began to prepare for her upcoming transition to high school. At a June 2009 meeting of K.M.'s IEP team, K.M.'s mother requested that Tustin provide her with Communication Access Realtime Translation (“CART”) beginning the first day of ninth grade, in Fall 2009. K.M.'s long-time auditory-visual therapist recommended that K.M. receive CART in high school. The IEP team deferred a decision on the CART request, instead developing an IEP that offered K.M. other accommodations.

Shortly thereafter, K.M. filed an administrative complaint challenging the June 2009 IEP. During the course of K.M.'s ninth grade year, her parents and Tustin officials met for several IEP meetings but were unable to come to an agreement that would resolve the complaint. After providing K.M. with trials of both CART and an alternative transcription technology called TypeWell, her IEP team concluded that she did not require transcription services to receive a FAPE under the IDEA, see 20 U.S.C. § 1412(a)(1), and reaffirmed the June 2009 IEP.

K.M.'s challenge to the June 2009 IEP proceeded to a seven-day hearing before a California administrative law judge (“ALJ”). K.M. testified that she could usually hear her teachers but had trouble hearing her classmates and classroom videos. Several of K.M.'s teachers testified that, in their opinion, K.M. could hear and follow classroom discussion well.

Applying the relevant legal standards, the ALJ concluded that Tustin had complied with both its procedural and substantive obligations under the IDEA and had provided K.M. with a FAPE. The ALJ observed that K.M.'s mother was requesting CART so that K.M. could “maximize her potential,” but the IDEA, as interpreted by the U.S. Supreme Court in Board of Education of Hendrick Hudson Central School District, Westchester County v. Rowley, 458 U.S. 176, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982), does not require schools to provide “a potential-maximizing education.”

Dissatisfied, K.M. filed a complaint in this Court challenging the ALJ decision on her IDEA claim. She also asserted disability discrimination claims under Section 504 of the Rehabilitation Act, Title II of the ADA, and California's Unruh Civil Rights Act. With respect to her ADA claim, she sought, in addition to other relief, “an Order compelling Defendants to provide CART.” The complaint alleges that CART “is commonly paid for by other Southern California public school districts,” including the Los Angeles Unified School District and the Santa Monica Malibu School District, and “is also commonly provided at the college level under the ADA.”

In declarations submitted to the Court, K.M.'s teachers declared that she participated in classroom discussions comparably to other students. K.M. saw her situation quite differently, emphasizing that she could only follow along in the classroom with intense concentration, leaving her exhausted at the end of each day.

This Court granted summary judgment for Tustin. First, as to K.M.'s IDEA claim, the Court stated that it was “reluctant to adopt fully teacher and administrator conclusions about K.M.'s comprehension levels over the testimony of K.M. herself,” and found “that K.M.'s testimony reveals that her difficulty following discussions may have been greater than her teachers perceived.” Nevertheless, the Court agreed with the ALJ that, under the relevant legal standards, K.M. had been afforded a FAPE compliant with the IDEA. Second, the Court held that “K.M.'s claims under the ADA and the Rehabilitation Act fail on the merits for the same reason that her claim under [the] IDEA failed.” Finally, the Court noted that Unruh Act liability requires intentional discrimination or an ADA violation, neither of which K.M. had shown.

K.M. appealed, challenging only this Court's rulings on her ADA and Unruh Act claims.

B. The Ninth Circuit's Ruling

On appeal, K.M. maintained that Title II of the ADA imposes effective communication obligations upon public schools independent of, not coextensive with, schools' obligations under the IDEA.

In a published decision, the Ninth Circuit agreed. It held that, on question of first impression, a school district's compliance with its obligations to a deaf or hard-of-hearing child under IDEA did not necessarily establish compliance with its effective communication obligations to that child under Title II of the ADA. See generally Bright, 725 F.3d 1088.

In the opinion, the Ninth Circuit laid out the statutory and regulatory background for the IDEA and Title II of the ADA. It noted, IDEA requires schools to “make available to children with disabilities a FAPE, tailored to their individual needs.” Id. at 1095 (citing 20 U.S.C. § 1400(d)(1)(A) ). To receive federal funds under the IDEA, schools must show how they have implemented “policies and procedures” to provide disabled children with a FAPE, including procedures to develop an IEP for each eligible child. Id. (citing 20 U.S.C. § 1412(a), (a)(1), (a)(4) ).

The Ninth Circuit distinguished the process-oriented IDEA from the ADA, noting that, while “the ADA imposes less elaborate procedural requirements,” it also “establishes different substantive requirements that public entities must meet.” Id. at 1096.

The Ninth Circuit then turned the Court's reasoning in dismissing the ADA claim:

In the district court's analysis in K.M. [ ] the plaintiffs' ADA claims were tethered to their IDEA claims through the connective thread of a third federal statute, Section 504 of the Rehabilitation Act. Section 504 bars the exclusion of individuals with disabilities from any program or activity receiving federal funds. See 29 U.S.C. § 794(a). The district court in K.M. reasoned that “the fact that K.M. has failed to show a deprivation of a FAPE under IDEA ... dooms her claim under Section 504, and, accordingly, her ADA claim” (emphasis added). The district court [ ] arrived at this reasoning by combining two lines of our case law. In the first line of cases, we have identified a partial overlap between the statutory FAPE provision under the IDEA and a similar provision within the Section 504 regulations promulgated by the Department of Education, requiring schools receiving federal funds to provide “a free appropriate public education to each qualified handicapped person who is in the recipient's jurisdiction.” 34 C.F.R. § 104.33(a). Although both the IDEA and the Section 504 regulation use the locution “free appropriate public education,” [ ] we have concluded that the two FAPE requirements are “overlapping but different.” See Mark H. [v. Lemahieu ], 513 F.3d [922] at 925, 933 [ (9th Cir.2008) ]. At the same time, we have noted that, as provided by the Section 504 FAPE regulation, “adopting a valid IDEA IEP is sufficient but not necessary to satisfy the [Section] 504 FAPE requirements.” Id. at 933 (citing 34 C.F.R. § 104.33(b)(2) ); see also A.M. v. Monrovia Unified Sch. Dist., 627 F.3d 773, 782 (9th Cir.2010).

In the second line of cases, we have discussed the close relationship between Section 504 and Title II of the ADA. Congress used the earlier-enacted Section 504 as a model when drafting Title II. See Duvall v. Cnty. of Kitsap, 260 F.3d 1124, 1135 (9th Cir.2001). We have observed on occasion that “there is no significant difference in the analysis of rights and obligations created by the two Acts.” Vinson v. Thomas, 288 F.3d 1145, 1152 n. 7 (9th Cir.2002).

Combining these two lines of cases, the district courts reasoned that (1) a valid IDEA IEP

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