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Mary Struble, As Conservator For Cs v. Fallbrook Union High School and District

September 18, 2012


The opinion of the court was delivered by: Honorable Larry Alan Burns United States District Judge


Plaintiff filed this action as conservator for CS, bringing claims under the Individuals with Disabilities Act (IDEA). She sought review of a decision by California's Office of Administrative Hearings (OAH), arguing that Defendant failed to offer and provide a free appropriate public education ("FAPE"). On January 27, 2011, the Court issued an order upholding the decision by California's Office of Administrative Hearings (OAH) but remanding for determination of two issues. Following a hearing, the OAH issued its decision. Plaintiff maintains she prevailed at that hearing, and has moved for attorney's fees which she says are authorized under 20 U.S.C. § 1415(I)(e)(B). The total sought amounts to $143,905.45. The motion was opposed and heavily briefed, and is now ready for adjudication.

Initially, Defendant filed an objection to Plaintiff's reply brief (Docket no. 65, objecting to Docket no. 63), but the parties filed a joint motion to withdraw that objection (Docket no. 66). The joint motion is GRANTED and the objection is deemed withdrawn.

Plaintiff's motion for an award of attorney's fees (the Motion) was relatively brief, outlining the procedural history of the case, citing authority for the principle that the Court was authorized to award fees, and requesting the award. It was supported by a declaration substantiating the amount of fees charged. Defendant's opposition was quite lengthy, challenging the degree of success obtained and the appropriateness and reasonableness of the fees. Defendant does not oppose an award of some fees and costs, but argues the amount should be much lower: a total of $23,378.15 in fees and costs for work performed by Ellen Dowd, Esq. and $18,840.32 in fees and costs performed by Tania Whiteleather, Esq. Plaintiff's reply brief addressed the opposition and therefore included more substantial arguments.

Legal Standards

Under 20 U.S.C. § 1415(i)(3)(B)(i)(I), the Court, in its discretion, may award reasonable attorney's fees as part of the costs, to a prevailing party who is a parent of a child with a disability. See Aguirre v. Los Angeles Unified School Dist., 461 F.3d 1114, 1117 (9th Cir. 2006) (parent seeking award of attorney's fees must be a prevailing party and must seek reasonable attorney's fees). The Court's discretion is limited by § 1415(i)(3)(C)--(F).

For a party to prevail, there must be a "material alteration of the legal relationship of the parties." Shapiro v. Paradise Valley Unified Sch. Dist. No. 69, 374 F.3d 857, 865 (9th. Cir.2004) (citing Buckhannon Board & Care Home, Inc. v. W. Va. Dep't of Health & Human Resources, 532 U.S. 598, 604 (2001)). "A prevailing party is one who succeeds on any significant issue in litigation which achieves some of the benefit the parties sought in bringing the suit." Van Duyn ex rel. Van Duyn v. Baker Sch. Dist. 5J, 502 F.3d 811, 825 (9th Cir. 2007) (citation omitted).The success must materially alter the parties' legal relationship, cannot be de minimis and must be causally linked to the litigation brought. Id. (citation omitted).

Where a plaintiff achieves only partial success, the Court must consider the degree of success obtained; this does not change the "prevailing party" inquiry, but does affect the size of the award. See Aguirre, 461 F.3d at 1119--20. A party who prevails at the administrative hearing but not at the district court level can recover fees for the administrative portion of the litigation even if fees are not awarded at the district court level. See Van Duyn v. Baker Sch. Dist. 5J, 502 F.3d 811, 825--26 (9th Cir. 2007).

The Court is required to support its determinations regarding attorney fees with a discussion of the most relevant criteria among those set forth in Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir.1975). They are: (1) the time and labor required; (2) the novelty and difficulty of the questions involved; (3) the skill required to perform the legal service properly, (4) whether the attorney, by accepting the case, was precluded from accepting other employment; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the undesirability of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases. Id. But see In re Bluetooth Headset Products Liability Litigation, 654 F.3d 935, 942 n.7 (9th Cir. 2011) (citation omitted) (noting that whether the fee was fixed or contingent is no longer a valid factor). The court "need not discuss each of the guidelines, so long as it discusses those most relevant to the particular case." Quesada v. Thomason, 850 F.2d 537, 539 (9th Cir.1988) (citation omitted). "The Kerr analysis is a variation of the lodestar analysis in that each of the Kerr factors is relevant to determining whether the number of hours or the hourly billing rate, or both, are reasonable in a particular case." M.L. v. Fed. Way Sch. Dist., 401 F.Supp.2d 1158, 1169 (W.D.Wash. 2005). See also In re Bluetooth, 654 F.3d at 942 n.7 (citing Hensley, 461 U.S. at 434 n.9) (explaining that many of the Kerr factors are subsumed within the lodestar calculation). Discussion

The most relevant of the Kerr factors, in the Court's view, are the results obtained, Plaintiff's counsel's customary fees (compared with fees charged by other attorneys, and viewed in light of the skill required), and the time and labor required. The Court considers not just the actual time and labor, but the time and effort reasonably expended. As with most cases, this essentially amounts to a lodestar calculation. See In re Bluetooth, 654 F.3d at 942 n.7 (citation omitted) (noting that, except in "rare and exceptional cases," analysis of Kerr factors typically results in an award of the amount calculated by the lodestar method).

Results Obtained

First, for purposes of an attorney's fees award, Plaintiff is a prevailing party. The fact that she prevailed only on some claims does not change this, although obtaining only limited success may be a reason to reduce the fee award. The case took some time to adjudicate, resulting in less of a recovery in terms of semesters of education for CS, but Plaintiff is not to blame for the delay, which is mostly attributable to circumstances beyond her control.

Because of the procedural posture and complexity of the claims, and the fact that they were largely based on an administrative record, the Court referred them to Magistrate Judge Cathy Ann Bencivengo for a report and recommendation. After receiving objections, the Court adopted the report and recommendation as modified, stayed the case, and remanded for a hearing on two issues. The length of time required for adjudication of her claims meant that CS spent less time receiving the education she sought for him. But, going into this case, she could not know that, nor could she foresee or prevent most other delays.*fn1 At the same time, Plaintiff did have some degree of control over the education CS received. For example, at the time she filed her complaint, CS was not enrolled in any school. Only several months later did he enroll. Plaintiff is, of course, entitled only to reasonable fees, so fees associated with unnecessary or unreasonable portions of the litigation will not be awarded.

Fifteen issues were originally presented for to an administrative law judge (the ALJ) for adjudication. (Report and Recommendation ("R&R"), Docket no. 44, at 3:13--28.) Initially, Plaintiff prevailed as to three of those issues, which concerned CS's options for graduation, and handwriting goals. The ALJ therefore concluded that some measure of compensatory education was appropriate, but the question of what type or amount of compensatory education that was required was more difficult. (Id. at ...

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