Noyes v. Grossmont Union High School Dist.

• Decision Date: 29 June 2004
• Docket Number: No. Civ. 03CV0905-LBLM.,Civ. 03CV0905-LBLM.
• Citation: 331 F.Supp.2d 1233
• Court: U.S. District Court — Southern District of California
• Parties: Lisa NOYES, parent of disabled child as defined within the Individuals with Disabilities Education Act, Plaintiff, v. GROSSMONT UNION HIGH SCHOOL DISTRICT, Defendant.

Page 1233

331 F.Supp.2d 1233

Lisa NOYES, parent of disabled child as defined within the Individuals with Disabilities Education Act, Plaintiff, v. GROSSMONT UNION HIGH SCHOOL DISTRICT, Defendant.

No. Civ. 03CV0905-LBLM.

United States District Court, S.D. California.

June 29, 2004.

Thomas S. Nelson, of the Law Offices of Thomas S. Nelson, Michael S. Cochrane, of the Law Offices of Michael S. Cochrane, Poway, CA, for Plaintiff.

Daniel R. Shinoff and Paul V. Carelli IV of Stutz, Artiano, Shinoff & Holtz, San Diego, CA, for Defendant.

ORDER RE: SUMMARY JUDGMENT MOTIONS

LORENZ, District Judge.

This matter comes before the Court on Plaintiff Lisa Noyes' Motion for Summary Judgment or in the Alternative, Summary Adjudication, and Defendant Grossmont Union High School District's Motion for Summary Judgment. The Court finds these motions suitable for determination on the papers submitted and without oral argument in accordance with Civil Local Rule 7.1(d)(1).

Plaintiff filed this action seeking attorney's fees under the Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400 et seq. ("IDEA"), and now moves for an award of those fees. Defendant also requests summary judgment in its favor, arguing Plaintiff is not a "prevailing party" as defined by Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Resources, 532 U.S. 598, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001). Defendant alternatively contends Plaintiff is not a "prevailing party" because Plaintiff obtained only de minimis results through the parties' settlement agreement.

The Court finds that notwithstanding Buckhannon, Plaintiff must be deemed a prevailing party in light of Barrios v. California Interscholastic Federation, 277 F.3d 1128 (9th Cir.), cert. denied, 537 U.S. 820, 123 S.Ct. 98, 154 L.Ed.2d 28 (2002), Ostby v. Oxnard Union High, 209 F.Supp.2d 1035 (C.D.Cal.2002), and policies underlying the IDEA. The Court further concludes Plaintiff received more than de minimis results, and is entitled to an award of $7,036.25 in attorney's fees plus $328.33 in expert consultant fees.

THE IDEA

The IDEA seeks "to ensure that all children with disabilities have available to them a free appropriate public education [`FAPE'] that emphasizes special education and related services designed to meet their unique needs and prepare them for employment and independent living." 20 U.S.C. § 1400(d)(1)(A). To implement the IDEA, schools must prepare a written Individualized Education Program ("IEP") for each disabled child. Id. § 1414(d); Ojai Unified Sch. Dist. v. Jackson, 4 F.3d 1467, 1469 (9th Cir.1993). "[T]he IEP sets out the child's present educational performance, establishes annual and short-term objectives for improvements in that performance, and describes the specially designed instruction and services that will enable the child to meet those objectives." Honig v. Doe, 484 U.S. 305, 311, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988); 20 U.S.C. § 1414(d). The statute guarantees parents of disabled children an opportunity to participate in the identification, evaluation, and placement process. 20 U.S.C. §§ 1414(d)(1)(B)(i), 1415(b)(1). Parents who object to their child's "identification, evaluation, or educational placement," or have a complaint regarding the provision of a FAPE for their child, can file an administrative complaint and are entitled to an impartial due process hearing. Id. §§ 1415(b)(6), (f)(1); Ojai, 4 F.3d at 1469. At the due process hearing, parents have a right to be accompanied and advised by counsel, present evidence, and confront, cross-examine, and compel the attendance of witnesses. 20 U.S.C. § 1415(h). Parents aggrieved by a hearing officer's findings and decision can file a civil action in either federal or state court. Id. § 1415(i)(2); Ojai, 4 F.3d at 1469. The IDEA also provides for an "award [of] reasonable attorneys' fees as part of the costs to the parents of a child with a disability who is the prevailing party." 20 U.S.C. § 1415(i)(3)(B).

BACKGROUND

Plaintiff Lisa Noyes' daughter, Jennifer Noyes, is a special education student in the Defendant school district with "learning disability" status due to her Attention-Deficit/Hyperactivity Disorder ("ADHD"). (Complaint ¶ 9; Noyes Decl. ¶¶ 1-2.) Jennifer attended ninth grade at Santana High School during the 2001-2002 school year until April 26, 2002. (LeReche Decl. ¶ 2.)

On April 26, 2002, Jennifer hit a physical education staff member after the staff member opened a door, accidentally hitting Jennifer in the arm. (Plt's Exh. 2; Def's Exh. B at 1; Noyes Decl. ¶ 6.) Jennifer was suspended for five days, and recommended for expulsion. (Plt's Exh. 2; Def's Exh. B at 1.) Jennifer's IEP team met on May 1, 2002, and determined Jennifer's act was a manifestation of her disability. (Def's Exh. B at 2; LeReche Decl. ¶ 5.) The IEP team recommended the expulsion process he discontinued. (Def's Exh. B at 2.) At the meeting, school officials informed Plaintiff that Jennifer could not return to Santana High School, and would not be allowed to attend Santana High School for the summer 2002 session. (Noyes Decl. ¶¶ 9, 12.) The IEP team members reviewed the educational placement options for Jennifer. They decided that Jennifer would enroll in an independent study program through June 13, 2002, and then attend summer school at West Hills High School, another school within Defendant's school district. (Plt's Exh. 3; Noyes Decl. ¶¶ 10, 12; Def's Exh. C.) The IEP team determined Jennifer needed to attend an anger management program, and required her family to pay for the service. (Plt's Exh. 3; Noyes Decl. ¶ 13.) Jennifer was not able to complete the program because the family's insurance did not provide coverage. (Plt's Exh. 4 at 1; Noyes Decl. ¶ 13; Def's Exh. E at 1.)

Plaintiff retained Kathleen Edwards, Ed.D., an educational advocate, in May 2002. (Def's Exh. D; Noyes Decl. ¶ 14; Edwards Decl. ¶ 1.) Dr. Edwards requested an emergency IEP meeting to determine Jennifer's placement and the services Defendant offered to Jennifer. (Def's Exh. D.) An emergency IEP meeting was held on June 14, 2002. (Plt's Exh. 4; Def's Exh. E.) At the meeting, Dr. Edwards requested Defendant provide Jennifer counseling services as part of her IEP. (Plt's Exh. 4 at 1; Def's Exh. E at 1; Noyes Decl. ¶ 15; Edwards Decl. ¶ 2.) Dr. Edwards also requested placement in a non-public school, reimbursement for out-of-pocket expenses incurred by Jennifer's parents for therapy since May 1, 2002, an occupational therapy assessment, an assistive technology assessment, and a referral to San Diego County Children's Mental Health Services under state law referred to as "AB 2726." (Plt's Exh. 4 at 4-5; Def's Exh. E at 4-5.)

Defendant declined the request to place Jennifer in a non-public school, explaining that Jennifer could receive counseling services at Santana High school, which was the smallest comprehensive campus with smaller class sizes, and her credits were appropriate for her grade level. (Plt's Exh. 4 at 1; Def's Exh. E at 1.) Defendant also refused to reimburse Plaintiff for Jennifer's therapy fees incurred after May 1, 2002. (LeReche Decl. ¶ 2.) One week after the IEP meeting, Defendant referred Jennifer for an occupational therapy assessment. (Def's Exh. F.) Although Defendant had indicated at the IEP team meeting that counseling services could be offered at Santana High School, it did not provide such services to Jennifer. (Plt's Exh. 4 at 1; Def's Exh. E at 1; Noyes Decl. ¶ 16; Edwards Decl. ¶ 2.) Instead, Defendant referred Jennifer to the San Diego County Children's Mental Health Services for an AB 2726 assessment of her social and emotional status. (Def's Exh. G.)

Jennifer attended summer school at West Hills High School, where she completed five credits of math. (Plt's Exh. 5; Def's Exh. H.) Jennifer met with the occupational therapist during the summer. (Plt's Exh. 5; Def's Exh. H.) At an August 21, 2002 IEP meeting, Plaintiff and Jennifer indicated they wanted Jennifer to return to Santana High School on August 26, 2002. (Plt's Exh. 5; Def's Exh. H.) Jennifer was allowed to return to Santana High School, and the IEP team agreed Jennifer would take two special education classes and one general education class. (Plt's Exh. 5; Def's Exh. H; LeReche Decl. ¶ 3.) The meeting notes indicate Jennifer was going to be referred to the Safe School's coordinator for anger management classes. (Plt's Exh. 5; Def's Exh. H.) Defendant also referred Jennifer to an assistive technology consultation. (Def's Exh. I.)

The parties dispute whether Jennifer was allowed to take physical education when she returned to Santana High School. Plaintiff maintains Jennifer was not allowed to sign up for physical education classes and was prohibited from "hanging around" the quad area in front of the physical education building. (Noyes Decl. ¶¶ 18, 20; Plt's Exh. 8 at 2.) Marilyn LeReche, Defendant's Director of Special Education, maintains Defendant never prohibited Jennifer from taking a physical education class at any school. (LeReche Decl. ¶ 3.)

The next IEP team meeting was on October 4, 2002. (Def's Exh. J.) The IEP team reviewed the results of the assistive technology assessment, which revealed Jennifer would benefit from a keyboard class. Id. at 1. The results of Jennifer's occupational therapy assessment indicated Jennifer needed two sessions of occupational therapy focusing on adequate letter formation. Id. The IEP team meeting notes reflect that the County's Children Mental Health Services had notified the Defendant an assessor would be assigned for Jennifer's AB 2726 assessment, but as of the date of the IEP team meeting, Plaintiff had not received any information from, nor been contacted by the County. Id. The notes also indicate Jennifer was going to start anger management classes the following week. Id. at 2. The team placed Jennifer in 33% special education classes, and 67% general education classes....