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Brenneise v. San Diego Unified School District

November 7, 2008

TYLER BRENNEISE, ALLISON; BRENNEISE, AND ROBERT BRENNEISE, PLAINTIFFS,
v.
SAN DIEGO UNIFIED SCHOOL DISTRICT, DEFENDANT.



The opinion of the court was delivered by: Hayes, Judge

ORDER

The matters before the Court are the (1) Motion for Certificate of Appealability (Doc. # 25) filed by San Diego Unified School District, and (2) Motion to Dismiss (Doc. # 36) filed by San Diego Unified School District.

Background

This action arises under the Individuals with Disabilities Education Act ("IDEA"), 84 Stat. 175, as amended, 20 U.S.C. §§ 1400, et seq. (2000 ed. and Supp. IV), which "confers upon disabled students an enforceable substantive right to public education in participating States, and conditions federal financial assistance upon a State's compliance with the substantive and procedural goals of the Act." Honig v. Doe, 484 U.S. 305, 310 (1988).

A. Factual Allegations*fn1

Tyler Brenneise is a teenage boy with autism and late diagnosed Phenylketonuria, a genetic metabolic disorder. Tyler ingests part of his diet through daily gastrostomy tube ("G-Tube") feedings. Tyler is eligible for special education and related services under the IDEA. Allison and Robert Brenneise are Tyler's parents.*fn2 San Diego Unified School District ("San Diego Unified") is a public school district organized and existing under the laws of the State of California, and is located within San Diego County.

In October 2003, Tyler's parents removed him from his school placement because they disagreed with the implementation of Tyler's Individualized Education Program ("IEP") by San Diego Unified. In July 2006, Tyler's parents provided conditional consent to an extended school year ("ESY") IEP, which called for Tyler to return to a school placement and attend Coronado Academy within the Coronado Unified School District. The ESY IEP required San Diego Unified to convene an IEP meeting by August 30, 2006 to develop an IEP for Tyler for the 2006-2007 school year.

On or about July 31, 2006, the Brenneises filed a request for a compliance complaint investigation ("CDE Compliance Complaint") with the California Department of Education ("CDE"). The CDE Compliance Complaint challenged San Diego Unified's implementation of the ESY IEP.

On August 30, 2006, as required by the ESY IEP, San Diego Unified convened a meeting to develop an IEP for Tyler for the 2006-2007 school year. The Brenneises did not provide consent to San Diego Unified's proposed August 30, 2006 IEP.

On November 27, 2007, the CDE issued a ruling with respect to the CDE Compliance Complaint. The CDE found San Diego Unified non-compliant with the IDEA for failing to implement Tyler's ESY IEP, and ordered San Diego Unified to provide Tyler with compensatory education.

On or about November 29, 2006, after convening several more IEP meetings to develop an IEP for Tyler for the 2006-2007 school year and failing to obtain the Brenneises' consent to any of San Diego Unified's proposed IEP offers, San Diego Unified filed a request for a due process hearing with the Office of Administrative Hearings ("OAH"). San Diego Unified requested that the OAH establish that its assessment of Tyler was appropriate.

On December 4, 2006, San Diego Unified convened another meeting to develop an IEP for Tyler for the 2006-2007 school year. The Brenneises did not provide consent to San Diego Unified's proposed December 4, 2006 IEP. San Diego Unified amended its due process complaint with the OAH to request that the OAH establish that the December 4, 2006 IEP offer was compliant with the IDEA.

On or about January 29, 2007, the Brenneises cross-filed a request for a due process hearing with the OAH. The Brenneises alleged that San Diego Unified's August 30, 2006 and December 4, 2006 IEPs denied Tyler a free and appropriate public education ("FAPE") in violation of the IDEA. The Brennieses also moved to consolidate their due process filing with San Diego Unified's pending due process filing. The OAH granted the motion for consolidation.

B. The OAH Decision

The OAH convened the consolidated due process hearing on May 14, 2007 - June 1, 2007, June 11, 2007 - June 13, 2007, June 19, 2007 - June 20, 2007, and July 11, 2007 - July 20, 2007. On or about October 3, 2007, the OAH issued a written decision ("the OAH Decision"), which identified 18 separate issues, and concluded: "The Student prevailed on issues 10, 14 and 15. The District prevailed on the remaining issues." OAH Decision, p. 75.

With respect to issue 10, the OAH Decision concluded that the December 4, 2006 IEP "failed to provide for specialized physical health care services Student would need to access his education and failed to provide an appropriate plan to transition Student from his home placement to a school placement." OAH Decision, p. 66. With respect to issue 14, the OAH Decision concluded that the Brenneises met their burden of proving that Tyler's "one-to-one behavioral aide was not the appropriate person to assist [Tyler] with his G-Tube feeding." Id. at 69. The OAH Decision modified the December 4, 2006 IEP to require Tyler's G-Tube feedings to occur daily in the nurse's office where a "school nurse will be present and will personally assist the student with the student's G-Tube feeding." Id. at 74. With respect to issue 15, the OAH Decision concluded that the Brenneises met their burden of proving that the "August 30 and December 4 IEPS denied [Tyler] a FAPE because they failed to include appropriate transition plans which identified the services to be performed during the operation of the plan and failed to permit Student's parents to be part of the decision making process on the educational placement of the child." Id. at 71.

C. The Brenneises' Complaint

On January 4, 2008, the Brenneises filed a Complaint against San Diego Unified (08cv28, Doc. # 1). The first claim for relief alleges that the Brenneises are a "party aggrieved" by the OAH Decision in that the "OAH decision erred in holding in favor of San Diego Unified with respect to issues 1-5 (Issues Related to Assessments); issues 6-9 (Issues Related to the August 30, 2006 Proposed IEP); issues 11-13 (Issues Related to the December 4, 2006 Proposed IEP); and issues 16-18 (Issues Related to both IEPs)." Complaint, ¶ 21. The second claim for relief alleges that the Brenneises are a prevailing party with respect to the due process proceedings and are therefore entitled to reimbursement of reasonable attorneys' fees incurred during the course of the due process proceedings. The third claim for relief alleges that Tyler has been denied a FAPE in violation of the IDEA on grounds that San Diego Unified has "failed and refused to comply with the OAH Decision" with respect to the transition plan and with respect to Tyler's G-Tube feedings. Brenneises' Complaint, ¶¶ 30-31. The fourth claim for relief alleges that the Brenneises are entitled to reimbursement of reasonable attorneys' fees incurred in connection with their successful CDE Compliance Complaint.

D. San Diego Unified's Complaint

On January 4, 2008, San Diego Unified filed a Complaint against the Brenneises, their attorney Steven Wyner and the law firm of Wyner & Tiffany (08cv39, Doc. # 1). The first cause of action alleges that the OAH Decision "wrongfully ordered [San Diego Unified] to modify the IEP to require a school nurse to be present to personally assist [Tyler] with his g- tube feedings and wrongfully concluded that [Tyler] would not have been safe at school under the December 4, 2006 IEP." San Diego Unified Complaint, ¶ 20. The first cause of action further alleges that the "OAH erroneously concluded that the [transition] plan denied [Tyler] a FAPE." Id., ¶¶ 23, 24. The second cause of action requests attorneys' fees on grounds that the Brenneises, Steven Wyner and the law firm of Wyner & Tiffany acted in bad faith and for an improper purpose with respect to the due process proceedings and subsequent litigation. The third cause of action requests a declaration that the "IDEA's fees shifting provisions do not entitle a parent to reimbursement for fees and costs incurred in filing a compliance complaint" with the CDE, and that "the IDEA provides [San Diego Unified] with the discretion to substitute one qualified provider for another in compliance with [Tyler's] IEP and that [San Diego Unified] cannot be compelled to contract with non-certified NPAs in violation of State law." Id., ¶¶33, 35.

E. The Motions to Dismiss

On March 12, 2008, the Brenneises filed a "Motion to Dismiss Second Cause of Action against All Parties with Prejudice; to Dismiss Third Cause of Action against Steven Wyner and Wyner and Tiffany with Prejudice" ("Brenneises' Motion to Dismiss") (08cv39, Doc. # 19). The Brenneises moved to dismiss San Diego Unified's second cause of action for attorneys' fees against all parties on grounds that their Complaint was neither meritless nor frivolous. The Brenneises also moved to dismiss ...


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