United States District Court, S.D. California
A.V. By and Through His Guardians Ad Litem ANDREA VAZ ANTUNES and ANTONIO VAZ ANTUNES, Plaintiff,
LEMON GROVE SCHOOL DISTRICT, Defendant.
ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT [DOC.
NOS. 23, 24]
CATHY ANN BENCIVENGO UNITED STATES DISTRICT JUDGE
matter comes before the Court on Plaintiff A.V.'s
(“A.V.”) Motion for Summary Judgment [Doc. No.
23] and Defendant Lemon Grove School District's
(“District”) Cross Motion for Summary Judgment
[Doc. No 24]. The motions have been fully briefed and the
Court finds it suitable for determination on the papers
submitted and without oral arguments in accordance with Civil
Local Rule 7.1(d)(1). For the reasons set forth below, the
Court DENIES both motions and upholds the decision of the
Administrative Law Judge (“ALJ”).
a 12-year-old boy who resides within the District and suffers
from dyslexia, auditory working memory, and visual processing
deficits. A.V. was first determined to be eligible for
special education in December 2007.
beginning of 2014, Andrea Vaz Antunes (“Mother”)
and Antonio Vaz Antunes (“Father”) (collectively
“Parents”) removed A.V. from the District school
and placed him in Banyan Tree Foundations Academy
(“Banyan”) a non-public school. [Administrative
Record (“A.R.”) at 1216-17. On March 3, 2014,
Parents and District entered into a settlement agreement.
[Id. at 1008-19.]
settlement agreement required District to reimburse Parents
for tuition they had already paid at Banyan, as well as to
set up an account for reimbursement expenses for tuition and
transportation costs between the date of the settlement
agreement and December 19, 2014. [Id.] Under the
agreement District was required to conduct A.V.'s
triennial assessment during the Fall of 2014 and convene a
triennial Individual Educational Program
(“IEP”) meeting between October 19, 2014, and
December 19, 2014. [Id. at 1010.]
December 15, 2014, an IEP team meeting was held which
included Parents, A.V.'s advocate, Dr. Sara Frampton, and
individuals from Banyan and District. [Id. at
328-358.] The meeting lasted two hours and some, but not all,
of A.V.'s assessment results were discussed.
[Id. at 353-56] Determining a placement for A.V. was
a topic of discussion but no decision was reached and no
offer was made. [Id. at 2329.] Dr. Frampton
requested District continue to fund A.V.'s education at
Banyan past December 19, 2014, District's legal counsel
responded that the request would be discussed with
Parents' counsel. [Id. at 353.] District did not
identify a District school where A.V. should enroll while his
IEP was being developed. The meeting adjourned with all team
members agreeing to reconvene as soon as possible in order to
complete the IEP. [Id. at 355, 1315.]
email exchange subsequent to the December IEP meeting, Dr.
Frampton and District's legal counsel discussed possible
non-public school options for A.V., including NewBridge.
[Id. at 958-59.] On December 20, 2014,
District's legal counsel informed A.V.'s
representatives that District was taking the position was
that it had not caused any delay in convening the triennial
IEP mandated by the settlement agreement and stated that
District would not continue the funding of Banyan.
[Id. at 964.] The communication did not identify
which District school or classroom A.V. should report to and
no offer of an alternative placement pending development of
A.V.s new IEP was provided. [Id.] The email
continued “Lemon Grove is open to considering all
placement options at the upcoming IEP team meeting, including
Banyan Tree.” [Id.] On December 30, 2014,
A.V.'s legal counsel requested that District, given the
lack an offer of a free appropriate public education
(“FAPE”) from District, continue to fund Banyan.
[Id. at 360-61.] District did not respond to this
January 21, 2015, Parents' counsel were provided with a
draft of A.V.'s goals that were to be discussed at the
upcoming IEP team meeting. [Id. at 1035-51.] The
email stated that Dr. Burkett had been unsuccessful in her
attempts to contact Steve Mayo, Director of NewBridge, to
discuss whether NewBridge would be an appropriate placement
option for the team to discuss at the upcoming meeting.
[Id. at 1035; see also 1543-44, 1605-06.]
January 23, 2015, IEP team meeting was reconvened.
[Id. at 363-64.] The IEP team reviewed the results
of all District assessments and Banyan progress reports.
[Id; see also 1749-55.] Modifications were made to
A.V.'s eligibility categories and proposed goals for A.V.
were agreed upon. [Id.] The team agreed that neither
a general education classroom nor a special day classroom at
a District school would meet A.V.'s needs. [Id.
at 364.] District offered A.V. placement at a non-public
school but did not believe that Banyan was an appropriate
facility. [Id. at 1756-57, 1826, 2148-49.]
Dr. Frampton and Parents wanted A.V. to remain at Banyan to
the end of the 2014-2015 school year but suggested NewBridge
as an option for a non-public school. [Id. at 364,
2252.] District's representatives would not agree to A.V.
remaining at Banyan but did not propose an alternative
school. [Id. at 364, 1766]. Dr. Burkett informed
Parents that District would investigate other possible
non-public placements and propose an alternative school.
[Id. at 2253.]
the initial IEP team meeting in December 2014, District and
Parents engaged in settlement discussions which ended in
April 2015 with no agreement having been reached.
[Supplemental Record (“S.R.”) at
4-90. In the wake of the breakdown of the
settlement discussions Dr. Burkett began investigating
possible non-public school placements for A.V. [A.R. at
1763-64.] Sierra was identified as a potential option for
A.V. that had an immediate opening. [Id. at 1764-65,
1772.] During this period, A.V. remained at Banyan, with
Banyan temporarily waiving tuition charges for him. [A.R. at
April 24, 2015, Parents on behalf of A.V. filed a due process
hearing request with the Office of Administrative Hearings
(“OAH”) (“the OAH Complaint”).
[Id. at 1-8.] The OAH complaint was amended on May
13, 2015, to include District's offer to place A.V. at
Sierra Academy. [Id. at 13-24, 36.]
April 26, 2015, District's legal counsel wrote to
A.V.'s legal counsel offering A.V. immediate placement at
Sierra once Parents consented to the offer of placement.
[Id. at 367-69.] In the letter, District agreed to
reimburse Parents for tuition at Banyan subject to proof and
documentation of attendance. [Id.; see also
1785-86.] A copy of the IEP document developed at the
December 15, 2014, and January 23, 2015, IEP meetings was
enclosed. [Id. at 370-404.]
6, 2015, District's counsel wrote to A.V.'s legal
counsel asking for any revisions A.V. or his representatives
were proposing regarding his IEP. [Id. at 405-06,
978.] District reiterated its offer of placement at Sierra
and offered to facilitate Parents' tour of Sierra.
[Id. at 405, 978, 1780-81.] May 20, 2015, was
proposed as the next IEP team meeting date. [Id. at
405, 407, 978-79.] Before the May IEP team meeting, Parents
toured Sierra without involving the District. [Id. at
20, 2015 an IEP team meeting was convened. [Id. at
411-38.] A.V.'s Parents, legal representatives for both
parties, Dr. Frampton, and numerous District employees were
present. [Id. at 411.] No representative from Sierra
attended the meeting.[Id. at 1515-16.] Numerous issues
of concern to Parents were discussed and the IEP was modified
and revised in the two hour meeting. [Id. at 411.]
District made an offer of placement and services to A.V. that
included: placement at a non-public school, with round-trip
transportation; speech and language therapy twice a week, for
25 minutes a session; occupational therapy services 30
minutes a week; and social work services of 1, 200 minutes a
year. [Id.] The District reiterated that it was
offering placement at Sierra, which had an immediate opening
and was closer to his home and had a reading teacher and
reading interventions. [Id. at 411, 1795-97.]
NewBridge did not have an opening for A.V. and was further
away than Sierra. [Id; see also 1544, 1795-96.] Dr.
Frampton requested District fund Banyan for the remaining
three weeks of the school year, and stated that NewBridge
would serve A.V. well and had an opening starting at the
beginning of the extended school year. [Id.]
District agreed to respond to these requests by the end of
the school year. [Id.]
26, 2015, District responded to Plaintiff's OAH
complaint. [Id. at 986-92.] In its' response
District extended its April 26, 2015, non-confidential
settlement offer to the end of the school year and agreed to
reimburse Parents for Banyan tuition and mileage
reimbursement dating back to January of 2015 to the end of
the 2014-2015 school year. [Id. at 991, 1786-87.]
District continued to offer Sierra as FAPE. [Id. at
5, 2015, Parents declined District's May 28, 2015,
Statutory Settlement Offer claiming that the terms of the
offer were overly broad and lacked specificity. [Id.
at 601-602, S.R. at 123-24.] On June 20, 2015, Parents'
counsel served notice on District of Parents' intent to
change A.V.'s placement from Banyan to NewBridge for the
2014-2015 extended school year. [A.R. at 994.]
24, 2015, Parents' counsel contacted District with a
proposed resolution of the OAH matter, sought reimbursement
for Banyan and mileage expenses, requested reimbursement for
extended school year at NewBridge, placement at NewBridge for
the 2015-2016 school year, and student's stay-put
placement at NewBridge pending an IEP meeting at the
beginning of the school year, an attorney fees and costs in
the amount of $6, 000.00. [Id. at 603-04.]
1, 2015, Parents enrolled A.V. at NewBridge, for the extended
school year at a cost of $2, 250. [Id. at 1525,
1551.] Parents were billed $1, 825 a month for tuition for
the regular school year, which did not include charges for
related services. [Id. at 1550.]
August 28, 2015, District responded to the notice of
placement reiterating that District had decided against
funding A.V.'s placement at NewBridge and that Sierra
could provide A.V. with a FAPE in the least restrictive
environment. [Id. at 996-98.] District stated that
it had investigated Dr. Frampton's concerns regarding
Sierra and concluded, that contrary to her assertions, Sierra
does not serve children with significant social and emotional
issues and disagreed with her assertion that NewBridge was
better than Sierra. [Id. at 996-97.] District
specifically referenced “Dr. Frampton's comment
made at the May 20th IEP that NewBridge is the ‘perfect
fit' for [A.V.].” [Id. at 997.] On the
same day District filed a complaint with the OAH to determine
whether its offer of Sierra Academy constituted a FAPE.
[Id. at 67-74.]
September 2, 2015, the OAH consolidated A.V. and
District's cases. [Id. at 88-90.] In October and
November of 2015 a six day OAH hearing was held before
Administrative Law Judge Darrell Lepkowsky. On January 8,
2016, the ALJ issued a Decision. [Id. at 1060-108.]
The ALJ found that A.V. was denied a FAPE between December
20, 2014 and April 26, 2015, because District failed to make
an appropriate, specific offer of placement between December
20, 2014, and April 26, 2015. [Id. at 1089-92.]
Further, the ALJ concluded that the District did not
predetermine its offer of placement at Sierra and was not
required to make the offer at an IEP team meeting.
[Id. at 1093-95.] Additionally, the ALJ held that
the failure to have a representative from Sierra at the May
20, 2015, IEP team meeting was not a FAPE violation and that
Parents had meaningfully participated in the meeting.
[Id. at 1095-97.] Furthermore, the ALJ found that
the settlement discussions did not limit A.V.'s remedies,
and held that A.V.'s Parents were entitled to
reimbursement for A.V.'s tuition at Banyan from January
5, 2015, to June 10, 2015, totaling $27, 030, and for mileage
costs for transporting A.V. to Banyan in the amount of $1,
604.67. [Id. at 1102-06.]
April 4, 2016, A.V., by and through his Parents as guardians
ad litem, filed a complaint for partial reversal of the
decision of the Office of Administrative Hearings
(“OAH”) pursuant to the Individuals with
Disabilities Education Act (“IDEA”), 20 U.S.C.
§ 1400 et seq. [Doc. No. 1]. On June 22, 2016,
District filed a cross-complaint seeking partial reversal of
the decision rendered by the OAH. [Doc. No. 14.]
complaint Plaintiff alleges that the ALJ erred in holding
that Defendant's April 25, 2015, offer of placement at
Sierra was not a predetermination (Issue 3(a)). [Doc. No 1
¶ 21.] Further, Plaintiff alleges that the ALJ was
incorrect in ruling that the failure to have a non-public
school representative at the May 20, 2015, IEP meeting was
not a denial of FAPE (Issue 4(a)). [Id. ¶ 22.]
Relatedly, Plaintiff also claims that the ALJ incorrectly
ruled that Parents were not denied a meaningful opportunity
to participate in the May 20, 2015, IEP meeting (Issue 4(b)).
[Id.] Plaintiff also seeks reimbursement of
reasonable attorneys' fees as the prevailing party in the
OAH proceeding, as well as attorneys' fees incurred as a
result of filing this action. [Id. ¶ 24.]
cross complaint includes multiple challenges to the ALJ's
findings. First, Defendant contends that the OAH erred when
it ruled that Plaintiff was denied a FAPE. (Issues 1, 2a, 7).
[Doc. No. 14 ¶ 22.] Second, Defendant asserts that the
ALJ erred in allowing Plaintiff an award of remedies and by
deciding that Parents were entitled to tuition reimbursement
for A.V.'s time at Banyan after December 20, 2014 (Issue
8). [Id. ¶¶ 25, 26, 28.] Relatedly,
Defendant argues that the ALJ did not give due weight to the
ongoing settlement discussions between the Parties or the
offers made by the District, or fully consider the
District's efforts to resolve Plaintiff's placement
(Issue 8). [Id. ¶¶ 23, 24.] Fourth,
Defendant argues that Plaintiff should be not be accorded
prevailing party status. [Id. ¶ 30.]
November 4, 2016, the parties filed cross motions for summary
judgment. [Doc. Nos. 23, 24.]
Individuals with Disabilities Education Act
(“IDEA”) ensures 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 further education, employment, and
independent living.” 20 U.S.C. § 1400(1)(A). The
Act requires state and local education agencies to identify
children with disabilities and develop annual individualized
educational programs [“IEPs”] for every child.
Id. § 1414. Further, the IDEA obligates schools
and education agencies to fully involve parents in the
formulation, review, and revision of their child's IEP.
Bd. of Educ. Of Hendrick Hudson Cent. Sch. Dist.,
Westchester Cnty. v. Rowley, 458 U.S. 176, 208 (1982)
(“Congress sought to protect individual children by
providing for parental involvement in the development of
state plans and polices, , and in the formulation of the
child's individual educational program.”)
IDEA provides that in actions challenging an administrative
decision “the court shall review the records of the
administrative proceedings; shall hear additional evidence at
the request of a party; and basing its decision on the
preponderance of the evidence, shall grant such relief as the
court determines is appropriate.” 20 U.S.C. §
1415(i)(2)(C). The district court reviews the administrative
decision under a modified de novo standard. Ojai
Unified Sch. Dist. v. Jackson. 4 F.3d 1467, 1471-73 (9th
Cir. 1993). But courts are cautioned not to view the
provision as “an invitation to the courts to substitute
their own notions of sound educational policy for those of
the school authorities which they review.” Gregory
K. v. Longview Sch. Dist., 811 F.2d 1307, 1311 (9th Cir.
1987) (citations omitted); Ojai, 4 F.3d at 1472.
the reviewing court shall give due weight to the
administrative proceedings and consider its' findings
carefully. See Rowley, 458 U.S. at 206; Van Duyn
ex rel. Van Duyn v. Baker Sch. Dist. 5J, 481 F.3d 770,
775 (9th Cir. 2007); Ojai 4 F.3d at 1474. Particular
deference is to be given when the hearing officer's
administrative findings are thorough and careful or based on
the credibility of live witnesses. See Union Sch. Dist.
v. Smith, 15 F.3d 1519, 1524 (9th Cir. 1994); Amanda
J. ex rel. Annette J. v. Clark Cnty. Sch. Dist., 267
F.3d 877, 889 (9th Cir. 2001). However, “[h]ow
much deference to give state educational agencies,
, is a matter for the discretion of the courts.”
Gregory K., 811 F.2d at 1311 (emphasis in original).
analyzing whether a FAPE was available to a student under the
IDEA, the court must determine if the State has complied with
the procedures set forth in the Act and if the IEP is
“reasonably calculated to enable the child to receive
educational benefits. Rowley, 458 U.S. at 206-207.
See also K.D. ex rel. C.L. v. Dept. of Educ., Haw.,
665 F.3d 1110, 1114 (9th Cir. 2011) (citing Amanda
J., 267 F.3d at 881) (“A state must comply both
procedurally and substantively with the IDEA.”).
“However, procedural violations may be harmless
“if they do not ‘result in a loss of
educational opportunity or significantly restrict parental
participation.” K.D, 665 F.3d at 1122-23
(quoting L.M. v. Capistrano Unified Sch. Dist., 556
F.3d 900, 910 (9th Cir. 2009)).
party seeking relief bears the burden of demonstrating that
the ALJ's decision should be reversed. J.W. v. Fresno
Unified Sch. Dist., 626 F.3d 431, 438 (9th Cir. 2010).
motion, Plaintiff argues that District's April 23, 2015,
offer of placement at Sierra was improper because it was a
predetermination. [Doc. No. 23 at 17-25. Further,
Plaintiff asserts that the ALJ was incorrect in ruling that
the failure to have a non-public school representative at the
May 20, 2015, IEP meeting was not a denial of FAPE.
[Id. at 24-29.] In its' papers, District assert
that it offered A.V. a free appropriate public education.
[Doc. No. 24-1 at 19-24.] Further, District contends that the
ALJ's award of reimbursement was in error. [Id.
explained in more detail below, the preponderance of the
evidence supports the ALJ's decision that: (a) there was
no predetermination; (b) there was no denial of FAPE because
of a procedural violation; (c) A.V. was denied a FAPE between
December 20, 2014 and April 26, 2015; and (d) reimbursement
was proper. The Court defers to the ALJ's fact and policy
findings because she presided over a lengthy hearing,
reviewed hundreds of pages of documents, and provided a
thorough and careful analysis of the issues. Union
Sch. Dist., 15 F.3d at 1524.
ALJ Correctly Decided that School District's Offer of
Placement at Sierra Was Not a Predetermination in Violation
Plaintiff's procedural contentions is that placement at
Sierra Academy was improper because it was a
predetermination, in violation of the IDEA. First, Plaintiff
argues that the offer of Sierra was independently developed
without parent participation. [Doc. No. 23 at 18-20.] Second,
Plaintiff asserts that the District's offer of Sierra was
a “take it or leave it offer” thereby denying
Parents and the IEP team an opportunity to be involved in the
placement decision. [Id. at 20-21.] Finally,
Plaintiff argues that the ALJ was incorrect in ruling that
“District had not predetermined the offer of Sierra
because it ‘was not required to identify a specific
non-public school in Student's IEP.” [Id.
at 21:7-9.] In opposition, District argues that the offer of
Sierra was not the selection of A.V's “educational
placement option, ” it was simple a location decision.
[Doc. No. 26 at 13.] Further, District asserts that the
educational placement decision was made at the January 23,
2015, IEP team meeting with full participation from
A.V.'s Parents. [Id.]
is a procedural violation that deprives a student of a FAPE
in those instances where placement is determined without
parental involvement in developing the IEP. Ka.D. ex rel.
Ky.D. v. Solana Beach Sch. Dist., No. 08-CV-622 W, 2010
WL 2925569, at *4, (S.D. Cal. July 23, 2010) aff'd sub
nom. Ka.D. ex rel. Ky.D. v. Nest, 475 Fed.Appx. 658
(9th Cir 2012) (citing Deal v. Hamilton Cnty. Bd. of
Educ., 392 F.3d 840, 857 (6th Cir.2004)). See also,
e.g., K.D., 665 F.3d 1124 (“A school district
violates the IDEA if it predetermines placement for a student
before the IEP is developed or steers the IEP to the
predetermined placement.”) (citing W.G. v. Bd. of
Tr. of Target Range Sch. Dist. No. 23, 960 F.2d 1479,
1484 (9th Cir.1992), superseded by statute on other grounds,
as recognized in R.B. v. Napa Valley Unified Sch.
Dist., 496 F.3d 932 (9th Cir.2007)); Z.F. Ripon
Unified Sch. Dist., No. 2:11-CV-02741-KJM-GCH, 2013 WL
127662, at *6 (E.D. Cal, Jan. 9, 2013)
(“Predetermination occurs when an educational agency
has made a determination prior to the IEP meeting, including
when it presents one educational placement option at the
meeting and is unwilling to consider other
alternatives.”) (citation omitted).
requires that the placement be based on the IEP, and not vice
versa. Spielberg v. Henrico Cnty. Pub. Schs., 853
F.2d 256, 259 (4th Cir. 1988). But while “IDEA
guarantees a free appropriate education, it does not,
however, provide that this education will be designed
according to the parent's desires.” Shaw v.
Dist. of Columbia, 238 F.Supp.2d 127, 139 (D.D.C. 2002).
An IDEA procedural violation is redressable only when it
denies parents meaningful participation in the IEP process or
causes a deprivation of educational benefits. J.L. v.
Mercer, 592 F.3d 938, 953 (9th Cir. 2009).
decision, the ALJ directly addressed Plaintiff's
predetermination argument and found that A.V. had not
demonstrated that District predetermined his placement at
Sierra.[A.R. at 1093-95.] The ALJ concluded that:
District here considered Student's request for placement
at NewBridge. However, that school was initially unavailable
and could not be offered. District later determined that
Sierra would meet Student's needs, a fact to which
Student has stipulated. District was not required to offer
Parents' preferred placement. District engaged in a
thorough discussion of Student's placement needs with
Parents and their representatives at the January 23, 2015 IEP
team meeting. There is no evidence that Parents'
participation in that discussion was hindered in any way. The
decision to ...