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A.V. v. Lemon Grove School District

United States District Court, S.D. California

July 11, 2017

A.V. By and Through His Guardians Ad Litem ANDREA VAZ ANTUNES and ANTONIO VAZ ANTUNES, Plaintiff,


          Cathy Ann Bencivengo United States District Judge

         This matter comes before the Court on Plaintiff A.V.'s (“A.V.”) Motion for Attorneys' Fees Under the Individuals with Disabilities Education Act (“IDEA”). [Doc. No. 30.] The motion has 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 grants in part the motion.

         I. BACKGROUND

         A.V. is a 12-year-old boy who resides within the Lemon Grove School District (“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. In the years that followed, District provided A.V with a free appropriate public education (“FAPE”) in both public and non-public schools and periodically assessed A.V. to evaluate his educational needs and progress and made any necessary adjustments. Beginning in December 2014, District and Parents began discussing where A.V should be placed moving forward but could not reach an agreement regarding which school A.V. should attend.

         On April 24, 2015, Parents on behalf of A.V. filed a due process hearing request with the Office of Administrative Hearings (“OAH”). [Administrative Record (“A.R.”). at 1-8.] The OAH complaint was amended on May 13, 2015, to include District's offer to placement at Sierra Academy (“Sierra'), a non-public school. [Id. at 13-24, 36.]

         On May 26, 2015, District responded to Plaintiff's OAH complaint by making the required statutory settlement offer. [Doc. No. 21-2 at 119-121.] Subject to proof, District offered to reimburse Parents for the tuition and mileage reimbursement that they had paid to the non-public school Banyan Tree Foundations Academy (“Banyan”), dating back to January of 2015 to the end of the 2014-2015 school year. [Id.] District propounded that it would provide A.V. with a FAPE at Sierra and provide transportation to and from the school. [Id.] As an alternative to Sierra, District would authorize A.V.'s attendance at NewBridge, his Parents' school of choice, but Parents would be entirely responsible for transporting their son at no cost to District. [Id.] On June 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 123-24.] On August 28, 2015, District filed a complaint with the OAH to determine whether its offer of Sierra Academy constituted a FAPE. [A.R. at 67-74.]

         On 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.[1] [Doc. No. 1-1.] 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 30-33.] 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 individualized education program (“IEP”) team meeting. [Id. at 34-36.] 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 36-41.] 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.[2] [Id. at 45-47.]

         On April 4, 2016, A.V., by and through his Parents as guardians ad litem, filed a complaint in the Southern District of California for partial reversal of the decision of the OAH pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § a FAPE with regard to the January 23, 2015 IEP team meeting by: (a) failing to offer a specific non-public school placement; and (b) failing timely to provide A.V. with a copy of the January 23, 2015 IEP document and meeting notes?; (3) Did the District's April 25, 2015 offer of placement at Sierra deny A.V. a FAPE, because: (a) District predetermined its offer of placement at Sierra; (b) District made the offer through correspondence between its attorney and A.V.'s attorney instead of at an IEP meeting; and, (c) District failed to convene an IEP team meeting to discuss A.V.'s placement subsequent to making the offer of placement?; (4) Did District deny A.V. a FAPE at the May 20, 2015 IEP meeting, by: (a) Failing to have a non-public school representative from Sierra present; and, (b) denying A.V's parents the opportunity to meaningfully participate in the meeting?; (5) Did District deny A.V. a FAPE by failing to conduct a vision therapy assessment at any time after the December 15, 2014 IEP meeting?; (6) Did District deny Student a FAPE from December 15, 2014, to the [date of the OAH hearing], by failing to make an appropriate and/or sufficient offer of occupational therapy, speech and language therapy, or vision therapy services?; (7) Did District offer A.V. a FAPE in the least restrictive environment in the triennial IEP dated December 15, 2014, as amended in January 23, 2015, and May 20, 2015?; (8) Does the settlement agreement between the parties, executed on February 28, 2014, and March 3, 2014, limit or otherwise preclude any remedy to which A.V. might otherwise be entitled for prevailing on any issue brought in this case? [A.R. At 1061-62.] 1400 et seq.[3] [Doc. No. 1]. On June 22, 2016, District filed a cross-complaint seeking partial reversal of the decision rendered by the OAH.[4] [Doc. No. 14.]

         On November 4, 2016, the parties filed cross motions for summary judgment. [Doc. Nos. 23, 24.] On February 24, 2017, this Court issues an Order affirming the ALJ's decision and denying both motions for summary judgment. [Doc. No. 29.] The Court also found that A.V. was a prevailing party at the ALJ hearing.

         On March 6, 2017, Plaintiff filed his application for attorneys' fees, requesting a total of $122, 477.73. [Doc. No. 30-2 at 14-15.] Defendant filed its opposition [Doc. No. 31] and Plaintiff filed his reply [Doc. No. 32].


         The IDEA provides that “the court, in its discretion may award reasonable attorneys' fees as part of the costs to a prevailing party who is the parent of a child with a disability.” 20 U.S.C. § 1451(i)(3)(B). “The prevailing party inquiry does not turn on the magnitude of the relief obtained.” Farrar v. Hobby, 506 U.S. 103, 111 (1992). Rather “‘a prevailing party' is one who ‘succeed[s] 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) (quoting Parents of Student W. v. Puyallup Sch. Dist., No. 3, 31 F.3d 1489, 1498 (9th Cir. 1994)).[5]

         The most useful starting point for determining attorney's fees awarded under the IDEA is by performing the lodestar calculation - the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). For a fee request to be adjudged reasonable it must “exclude from this initial fee calculation hours that were not ‘reasonably expended.'” Id. at 434. See also Webb v. Bd. Of Educ. of Dyer Cnty., Tenn., 471 U.S. 234, 242 (1985) (Where a statute provides for fee shifting in connection with litigation, “[t]he time that is compensable under [that statute] is that ‘reasonably expended on the litigation.'”). Counsel for the prevailing party are therefore cautioned to “make a good faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary.” Hensley, 461 U.S. at 433.

         Generally, a partially prevailing plaintiff may not recover fees for her unsuccessful claims because “the level of a plaintiff's successes is relevant to the amount of fees to be awarded.” Aguirre v. L.A. Unified Sch. Dist., 461 F.3d 1114, 1118-1121 (9th Cir. 2006) (adopting the Supreme Court's degree of success principles enumerated in Hensley to attorney's fees awarded under the IDEA). In these situations, a district court has discretion in deciding whether to attempt to identify specific hours that should be eliminated, or it may simply reduce the award to account for the limited success. Hensley, 461 U.S. at 437.


         Having previously awarded Plaintiff prevailing party status, [6] the Court will turn to the requested fee amount to determine whether it's reasonable.

         With his motion, Plaintiff submits a declaration from his counsel along with supporting documentation that provide an itemized description of the time spent by his counsel on this matter beginning on August 21, 2014 and ending on March 1, 2017. [Doc. No. 30-3.] The declaration also sets forth counsel and his colleagues' qualifications and hourly rates. Plaintiff requests a total fee award in the amount of a total of $122, 477.73, demanding reimbursement of $74, 105.90 for the fees associated with the due process hearing and $48, 371.47 in fees associated with the district court claim. [Doc. No. 30-2 at 14-15.] Defendant does not dispute the hourly rate but takes issue with Plaintiff's inclusion of fees to cover attendance at IEP meetings or other general representation activities which occurred prior to the initiation of the administrative proceeding. [Doc. No 31 at 6-11.] Additionally, Defendant claims that Plaintiff may not recover fees incurred after his rejection of the district's pre-hearing settlement offer. [Id. at 11-18.] Finally Defendant asserts that the fee award must be reduced to reflect Plaintiff's degree of success and Plaintiff may not recover attorneys' fees for his district court appeal. [Id. at 18-23.]

         A. Inclusion of fees incurred after rejection of district's pre-hearing settlement offer

         Defendant argues that Plaintiff should not recover fees for any work performed by his attorney subsequent to the rejection the timely written offer it tendered on May 28, 2015. Further, Defendant asserts that the ALJ's award was “not more favorable to the parents that the offer of settlement” and that it was unreasonable for Parents to reject its offer. In response, Plaintiff contends that he was justified in rejecting Defendant's offer because it did not include a provision to pay for his attorney's fees and maintained a provision that limited the District's ...

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