T.B. v. San Diego Unified Sch. Dist., Case No.: 08cv28–MMA (JMA)

• Decision Date: 23 February 2018
• Docket Number: Case No.: 08cv28–MMA (JMA)
• Parties: T.B., et al., Plaintiffs, v. SAN DIEGO UNIFIED SCHOOL DISTRICT, Defendant.
• Court: U.S. District Court — Southern District of California

293 F.Supp.3d 1177

T.B., et al., Plaintiffs,

v.SAN DIEGO UNIFIED SCHOOL DISTRICT, Defendant.

Case No.: 08cv28–MMA (JMA)

United States District Court, S.D. California.

Signed February 23, 2018

Steven Wyner, Wyner Law Group, PC, Torrance, CA, for Plaintiffs.

Amy R. Levine, San Francisco, CA, Sarah Leilani Wanda Sutherland, San Diego, CA, for Defendant.

ORDER AFFIRMING IN PART TENTATIVE RULINGS;

ADOPTING REPORT AND RECOMMENDATION OF SPECIAL MASTER;

GRANTING IN PART AND DENYING IN PART PLAINTIFFS' SUPPLEMENTAL MOTION FOR ATTORNEYS' FEES AND COSTS;

GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTION FOR ATTORNEYS' FEES

HON. MICHAEL M. ANELLO, United States District Judge

On February 9, 2018, the parties in this action appeared before the Court for a final hearing regarding the award of attorneys' fees and costs to Plaintiffs ("the Brenneises") under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1415(i)(3). After considering the oral arguments of counsel, upon review of the entirety of the record and for the reasons set forth below, the Court AFFIRMS IN PART its previously issued tentative rulings, ADOPTS Special Master John H. L'Estrange, Jr.'s Report and Recommendation, and GRANTS IN PART and DENIES IN PART the Brenneises' supplemental motion for attorneys' fees and costs. In addition, the Court GRANTS IN PART and DENIES IN PART the Brenneises' motion for attorneys' fees incurred between January 19, 2017 and December 29, 2017. The Court AWARDS the Brenneises $934,364.10 in attorneys' fees and costs.

BACKGROUND ¹

The original focus of this lengthy litigation was whether Defendant San Diego Unified School District ("the District") complied with the IDEA by providing Plaintiff T.B. a free appropriate public education ("FAPE") for the 2006–2007 school year. The parties first litigated the dispute over the course of 27 days during the summer of 2007 in a due process hearing before the State of California's Office of Administrative Hearings ("OAH"), Special Education Division. On October 3, 2007, Administrative Law Judge ("ALJ) Susan Ruff issued a 75–page written decision ("OAH Decision"), concluding that the District had failed to provide T.B. with a FAPE for the 2006–2007 school year.

By the time the ALJ issued her decision, a new school year (2007–2008) had begun. The parties continued to discuss modifications to an Individualized Education Program ("IEP") that would comply with the OAH Decision, govern the new school year, and permit T.B. to attend school. Ultimately, they failed to reach mutually agreeable terms.²

In January 2008, both parties appealed the OAH Decision to this Court. See 20 U.S.C. § 1415(i)(2)(A) ("any party aggrieved by the findings and decision made under this subsection, shall have the right to bring a civil action...in a district court of the United States, without regard to the amount in controversy."). The Brenneises sought judicial review of those aspects of the OAH Decision upon which the District prevailed, as well as statutory attorneys' fees. See Doc. No. 1. The District separately sought review of the aspects of the OAH Decision that went in the Brenneises' favor. See Doc. No. 1, Case No. 08cv39. The Court consolidated the two appeals. See Doc. No. 22.

In June 2010, the Court issued an order finding that the ALJ correctly determined that the District denied T.B. a FAPE for the 2006–2007 school year. See Doc. No. 118. Thereafter, the Brenneises moved for an award of approximately $1.4 million in attorneys' fees and costs. See Doc. No. 159. In March 2012, the Court issued a ruling granting in part, and denying in substantial part, the request for fees. See Doc. Nos. 237, 238. The Court determined that the Brenneises are a prevailing party under the IDEA, and entitled to an award of attorneys' fees and costs. See Doc. No. 238 at 13. However, the Court applied a statutory bar on fees pursuant to 20 U.S.C. § 1415(i)(3)(D), and awarded the Brenneises a total of only $55,433.91 in attorneys' fees and costs. See id. at 33. In sum, the Court found that the Brenneises were not entitled to any fees or costs incurred after May 4, 2007, when they rejected a final pre-hearing settlement offer from the District. See id. at 24. The Brenneises appealed the Court's limited award of attorneys' fees, as well as other adverse rulings of the Court. See Doc. No. 252.

On July 31, 2015, the United States Court of Appeals for the Ninth Circuit vacated the Court's award of attorneys' fees and costs, and remanded the matter for further consideration. See T.B. v. San Diego Unified Sch. Dist. , 806 F.3d 451 (9th Cir. 2015). The Ninth Circuit concluded, inter alia , that the District's settlement offer was not more favorable from the perspective of the Brenneises, such that this Court should not have enforced the statutory bar on post-settlement offer fees and costs. Id. at 477. The circuit court also determined that the Court did not sufficiently explain its calculation of fees and costs. Id. at 485.

In December 2015, the Brenneises filed a motion in the Ninth Circuit seeking attorneys' fees related to their prosecution of the appeal. See Doc. No. 86, App. Case No. 12–56060. Thereafter, the parties filed a joint motion requesting that the Ninth Circuit refer the case to mediation. See App. Doc. No. 90. The circuit court granted the motion, and the parties participated in an unsuccessful mediation. See Doc. No. 276. The Ninth Circuit subsequently issued an order granting the Brenneises' motion for attorneys' fees, in part, concluding that the Brenneises are entitled to a fee award, but directing this Court to calculate the amount of the award. See Doc. No. 291.

On February 17, 2016, the District filed a petition for writ of certiorari with the Supreme Court. See App. Doc. No. 99. On April 18, 2016, the Supreme Court denied the petition for writ of certiorari. See App. Doc. No. 106. On May 16, 2016, the Court spread the Ninth Circuit's mandate and resumed jurisdiction over the action. See Doc. Nos. 285, 286.

In November 2016, the assigned magistrate judge held a mandatory settlement conference on the issue of attorneys' fees and costs, but the parties did not reach a settlement. See Doc. No. 330. On January 18, 2017, the Brenneises filed a supplemental motion for attorneys' fees and costs, which the District opposed. See Doc. Nos. 340, 344.

On March 17, 2017, the Court provided notice to the parties pursuant to Federal Rule of Civil Procedure 53(b)(1) of the forthcoming appointment of a Special Master in this case. See Doc. No. 353. The Court's Order provided as follows:

Pursuant to Rule 54(d)(2)(D), the Court may appoint a Special Master to assist the Court in determining an award of attorneys' fees. Upon due consideration, the Court finds that the determination of reasonable hourly rates for the Brenneises' counsel and their staff, the reasonable hours expended at each stage of this litigation, the lodestar calculation, and the resulting fee award, will be unusually complex and place an exceptional burden on the Court. Accordingly, appointment of a Special Master to accomplish these tasks in an effective and timely manner is appropriate.

Id. at 1–2.³ On April 14, 2017, the Court appointed John H. L'Estrange, Jr. as a Special Master "to assist the Court in determining an award of attorneys' fees and non-taxable costs to the plaintiffs in this action under the IDEA." Doc. No. 360 at 1. The Court instructed the Special Master to make the following determinations:

a. A reasonable hourly rate for the following individuals for work performed on this case on behalf of the plaintiffs at each stage of this litigation: Steven Wyner, Marcy Tiffany, Dana Wilkins, Dona Wright, and D. Shawn Nicholson. In doing so, the Special Master must keep the following in mind:

i. The Court previously determined that San Diego is the relevant legal community. This ruling may not be revisited.

ii. The Court previously determined that the above-named individuals would be compensated at the following rates for any work performed before May 4, 2007, during the administrative phase of this litigation: Steven Wyner and Marcy Tiffany at $425 per hour; Dana Wilkins at $125 per hour; and Dona Wright at $95 per hour. The Special Master is authorized to revisit this ruling in light of the Ninth Circuit's conclusion that this Court should not have applied the statutory bar on post-settlement offer fees, and the resulting vacatur of the fee award.

iii. The Court previously declined to use current billing rates for past work performed. The Special Master is authorized to revisit this ruling, keeping in mind that no "bonus or multiplier" may be used to calculate the plaintiffs' fee award. 20 U.S.C. § 1415(i)(3)(C).

b. The number of compensable hours reasonably expended by the above-named individuals for work performed on this case on behalf of the plaintiffs at each stage of this litigation. In order to do so, the Special Master must make the following determinations, and is authorized to revisit the Court's previous rulings as to any or all of these issues:

i. Whether any particular billing entries should be reduced or denied based on specific objections to those entries, including: sufficiency of the billing records, firm overhead, overstaffing and duplication, and travel.

ii. Whether any particular billing entries should be reduced or denied pursuant to 20 U.S.C. § 1415(i)(3)(D)(ii).

iii. Whether any particular billing entries should be reduced or denied based on the apportionment of time between successful and unsuccessful claims.

iv. Whether any particular billing entries should be reduced or denied for time spent on common aspects of the litigation, including tasks related to settlement, case management, client communications, and preparation of the administrative record.

c. Based on the reasonable hourly rates and the reasonable amount of hours expended during the course of this litigation, the lodestar for each of the above-named individuals,

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