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Z.F, A Minor, By and Through His Parents M.A.F and J.F. and v. Ripon Unified School District (Rusd); Ripon Unified School

March 21, 2013

Z.F, A MINOR, BY AND THROUGH HIS PARENTS M.A.F AND J.F. AND M.A.F. AND J.F. INDIVIDUALLY; L.H., AND J.H., MINORS, BY AND THROUGH THEIR PARENTS J.A. AND J.R.H. AND J.A. AND J.R.H. INDIVIDUALLY; A.N., A MINOR, BY AND THROUGH HIS PARENTS, G.N. AND M.R., AND G.N. AND M.R. INDIVIDUALLY, PLAINTIFFS, ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED,
v.
RIPON UNIFIED SCHOOL DISTRICT (RUSD); RIPON UNIFIED SCHOOL DISTRICT BOARD OF TRUSTEES; SAN JOAQUIN COUNTY OFFICE OF EDUCATION; VALLEY MOUNTAIN REGIONAL CENTER (VMRC); MODESTO CITY SCHOOLS; MODESTO CITY SCHOOLS BOARD OF EDUCATION; AND DOES 1 -- 200,
DEFENDANTS.



The opinion of the court was delivered by: Garland E. Burrell, Jr. Senior United States District Judge

ORDER DENYING PLAINTIFFS' MOTION FOR CLASS CERTIFICATION AND MOTION FOR JOINDER OF DEFENDANTS AND RELATED COUNTER-CLAIM

Plaintiffs seek certification under Federal Rule of Civil Procedure ("Rule") 23(a) and 23(b)(3) of the following class: "All children assessed with [Autism Spectrum Disorder ("ASD")] who resided within the jurisdictional boundaries served by [Defendant Valley Mountain Regional Center] from November 9, 2005 to present and who may have benefitted from [Applied Behavior Analysis] services." (Pls.' Mem. of P.&A. in Supp. of Mot. for Class Certification ("Class Mot.") 7:17-8:3, ECF No. 153.)*fn1 Plaintiffs "propose[d amending] the class definition" in their reply brief "to conform to the [following] three categories[,]" to remove any ambiguity as to the class definition:

(1) those children assessed with ASD who did receive services under the [Early Intensive Behavioral Treatment Program] but had to accept illegal conditions and waive rights; (2) those children assessed with ASD who were denied services due to the illegal criteria; and, (3) those children assessed with ASD who were never informed of the right to receive [Early Intensive Behavioral Treatment Program] services. (Pls.' Reply to Class Mot. 1:16-23, ECF No. 181.)

Plaintiffs also move to add Tracy Unified School District, Stockton Unified School District, Lodi Unified School District, Sylvan Union School District, Stanislaus County Office of Education, and the Stanislaus County Special Education Local Plan Area ("SELPA") as Defendants "in place of DOE Defendants 1-6." (Pls.' Mot. for Joinder of Defs. ("Joinder Mot.") 2:19-28, ECF No. 164.)

Defendants oppose both motions.*fn2

I. BACKGROUND

This action concerns the provision of intensive applied behavior analysis ("ABA") to children diagnosed with ASD within a certain geographic region of California. Plaintiffs allege that they are diagnosed with ASD and were denied access to intensive ABA services in violation of Section 504 of the Rehabilitation Act ("RA"), Title II of the Americans with Disabilities Act ("ADA"), and California's Unruh Civil Rights Act.

Plaintiffs allege that "[c]urrently, in 'Region 6' of California, . . . [there exists] an inter-agency, co-funded program called the "Early Intensive Behavioral Treatment" ("EIBT") program[, which] provides intensive one-to-one behavior treatment based on the UCLA/Lovaas model (a.k.a. Applied Behavior Analysis or ABA)." (Pls.' Second Am. Compl. ("SAC") ¶ 13.) Plaintiffs allege "the EIBT program is described in its entirety in a contract called the "EIBT Program, Procedures & Guidelines [(the "EIBT Guidelines")] . . . ." (Id. at ¶ 15.)

Plaintiffs allege that families "in Region 6 do not have access to intensive one-to-one behavioral treatment outside of the EIBT arrangement." (Id. at ¶ 14.) "Entrance [to], continuation [of], and exit [from intensive ABA services] is based upon the child's ability to meet the EIBT [Guidelines,] which by [their] own terms [are] not uniquely tailored to the unique needs of each student." (Id.)

Plaintiffs allege that they "requested [intensive] ABA services . . . but were denied access to intensive [ABA] treatment . . . because of the [EIBT Guidelines'] eligibility criteria, referral process, and/or the actions of agencies and individuals involved with the agreement . . . ." (Id. at ¶ 17.) The named plaintiffs "were [subsequently] able to obtain, either through settlement or through an award from the California Office of Administrative Hearings, ABA services without the necessity of proceeding through the EIBT/PPG program." (Class Mot. 6:13-17.) Plaintiffs allege that use of the EIBT Guidelines "operates as a programmatic barrier under the [ADA] and Section 504 of the [RA] because it denied all Plaintiffs access to an intensive ABA program . . . ." (SAC ¶ 19.)

II. DISCUSSION

A. Class Certification

Plaintiffs move to certify the above-defined class, arguing certification is proper under Rule 23(a). Plaintiffs further argue that their proposed class meets the predominance and superiority elements of Rule 23(b)(3). (Class Mot. 17:23-19:20.)

Each Defendant opposes Plaintiffs' class certification motion on multiple grounds. (See ECF Nos. 171, 173, 174.) Defendants contend that Plaintiffs have not met their burden of proof on the four required elements of Rule 23(a), and Plaintiffs have not ...


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