Photo by Sebastian Pichler Cases generally settle, but almost always originate in IEP meetings where the school district has failed to be transparent with the family for the benefit of the child so they can be safe from harm at school, while being educated and without being segregated.
Some examples of legal victories:
OAH Case No. 2016110289
OAH Decision, Case Number 2016110289, issued April 24, 2017, ordered the District to conduct an IEP meeting “honestly” and “transparently” to consider allowing “Student’s ABA insurance funded aide to accompany Student on campus.” (Emphasis added). This Order resulted in the child’s one-on-one ABA therapist being allowed to support her at school where she has been included in the general education setting ever since. https://www.documents.dgs.ca.gov/oah/seho_decisions/2016110289%20Corrected.Pdf
OAH Case No. 2016040211 OAH Decision, Case Number 2016040211, issued August 8, 2016, Ordered the District to fund residential placement, among other significant relief. The Decision found the District denied Student a free and appropriate public education by offering a home-schooling placement at each IEP meeting for several years despite knowing that Student was historically and actively psychotic with a serious emotional disturbance, and that the home-schooling placement did not provide Student with educational benefit. https://www.californiaspecialedlaw.com/oah-hearing-decisions/2016040211.pdf
OAH Consolidated Case No.'s 2019040859 & 2019070446 OAH Decision, Consolidated Case Numbers 2019040859 & 2019070446, issued January 2, 2020, Ordered significant compensatory education for the Student and training for school staff in how to comply with the law. The Decision found the District’s excuses for failing to provide the child a free and appropriate public education to be unpersuasive. “Lompoc argues that Student should not receive compensatory education . . .[while] she did not attend school . . . Lompoc argues Student’s lack of attendance indicates she is not interested in attending school. . . this argument is not found to be persuasive. . . No evidence was presented establishing that Student did not have an interest in attending school. The fact that student returned, day after day, despite her substantial daily difficulties, weighs against such a conclusion. . .What has been established is that Lompoc offered inadequate behavioral and communication skills supports, and no IEP subsequent to the March 5, 2019, change of placement outside the IEP process. . . Lompoc also argues that compensatory education should be reduced due to Mother’s failure to cooperate . . . However, the Ninth Circuit has made it clear that the obstinance of a parent does not excuse a district’s obligation to a child. (Doug C., supra, 720 F. 3d at p. 1045.) https://www.californiaspecialedlaw.com/wiki/hearing-decisions/oah-2019040859-2019070446/
Tehachapi Unified Sch. Dist. v. K.M.
At the time of the administrative hearing, K.M. was a nine-year old girl eligible for special education under the categories of autism and speech or language impairment. (Doc. No. 1 at 8.) Defendants filed a due process complaint in August 2016, alleging that the district denied K.M. a free appropriate public education ("FAPE") in K.M.'s individualized education program ("IEP") as required by the Individuals with Disabilities Education Act ("IDEA"). (Id.)...On December 1, 2016, the ALJ found that the district substantively deprived K.M.'s guardians of the opportunity to participate in the IEP meetings and therefore denied K.M. a FAPE. (Id. at 28.) The ALJ ordered the district to fully reimburse K.M.'s costs for her having to attend a 2016 summer program at a non-public agency that provides language development services because of the district's deficiencies with regard to her FAPE. (Id. at 29.)...On December 29, 2016, the district appealed the ALJ's decision to this court pursuant to 20 U.S.C. § 1415(i)(2). (See Doc. No. 1.) On September 28, 2018, the court affirmed the ALJ's decision and held that defendants, as the prevailing party, would be allowed to file a separate motion requesting an award of attorneys' fees and costs. (See Doc. No. 40.) Tehachapi Unified Sch. Dist. v. K.M., No. 1:16-cv-01942-DAD-JLT, at *2 (E.D. Cal. Jan. 25, 2019)
K.M. v. Tehachapi Unified Sch. Dist.
At the time this action was filed in October 2017, K. M. was a 9-year-old of average intelligence. (Doc. 2 at 2) However, K.M. has autism, which causes her "difficulty with verbal language skills and acquiring socially acceptable means for expressing protest, fear, frustration, anger, desire for something, sadness, or any other emotion. Though she now speaks, she is still "learning to communicate commensurate with her cognitive ability and chronological age." Id. To address these deficits, her pediatrician prescribed Applied Behavior Analysis, the cost of which was covered by the child's health insurance. Id. The student alleged that the defendants denied her these services while at school because the ABA therapist was not an employee or contracted with the school district. Id.
The student alleged that this refusal forced her to choose between receiving the services or attending school. (Doc. 2 at 3) Consequently, she was not able to attend school regularly. Id. at 10. She missed an entire year of school so she could obtain the ABA treatment. Id. The student alleged that by precluding her from receiving the treatment in the school setting, this detracted from the effectiveness of the therapy. Id. The inability to attend school also caused her to fall further behind in her educational pursuits. Id. at 11. In addition, the student asserts that when she was at school, she was subject to unsafe conditions and was provided inadequate supervision.(Doc.44,4-5)
In April 2017, the administrative law judge issued a determination after holding a due process hearing. (Doc. 2 at 12-13) The order required the school district to "'hold an [Individualized Educational Plan] meeting for the purpose of openly and honestly discussing and considering the ABA prescription and Mother's request that [Defendant] allow [K.M.'s] ABA insurance funded aide to accompany Student on campus. [Defendant] is ordered to provide training to its administrative and special education personnel regarding parental participation in the IEP process under the IDEA.'" Id. at 13. The resulting IEP permitted the student to have the ABA therapist at school beginning in August 2017 but only if the IEP continues to condone it and the right to these ongoing services at school could be terminated at any subsequent IEP meeting. Id.
During the litigation, the parties resolved the dispute [through settlement]. (Doc. 44-1) . . . The District argues the Court lacks jurisdiction to consider the motion to enforce the settlement agreement because of the limits placed on the Court's jurisdiction imposed by the Federal Arbitration Act. This argument is flatly disingenuous. . . There can be little dispute that the plaintiff was the "prevailing party" given the value of the settlement to the child. (Doc. 47 at 5-6, 7). It provided the child approximately $650,000 worth of educational services which were "incalculable" in terms of improving her educational opportunities (Id.) and as much as about $825,000 in fees. . . K.M. v. Tehachapi Unified Sch. Dist., Case No.: 1:17-cv-01431 LJO JLT, at *2-15 (E.D. Cal. Oct. 4, 2020)
Cortes v. Kern Cnty. Superintendent of Schools
A.C., and Defendant Kern County Superintendent of Schools-Valley Oaks Charter School Tehachapi ("KCSOS-VOCS" or "Defendant") reached a settlement as part of an administration due process proceeding brought under 20 U.S.C. § 1415, the Individuals with Disabilities Education Act ("IDEA"). The only issue the parties were unable to agree upon was the amount of attorney's fees owed to Plaintiff's counsel, the Law Office of Andrea Marcus ("LOAM"). . .
A.C. is twenty years old and is diagnosed with "Schizoaffective Disorder mixed typed" and "Autistic disordered, social phobia, generalized." ECF No. 16 at 10. The parties have been engaged in various administrative proceedings regarding A.C.'s "significant mental health needs" and placement at an appropriate residential treatment center to "address her educationally related social, emotional, and behavioral issues." Id. at 1; see also ECF No. 19 at 1-6. The parties agreed to place A.C. at the residential treatment center for the San Diego Center for Children ("SDCC") at the end of 2016. See id. A.C. aged out of SDCC when she turned nineteen years old. See ECF No. 16 at 10; ECF No. 19 at 5.
Issues arose when the parties sought to find a suitable residential treatment center for A.C. See generally ECF No. 16 at 5-6; ECF No. 19 at 5-10. First, A.C.'s family resides in Tehachapi, California. ECF No. 16 at 10. Defendant notes there were "no educational options close to [A.C.'s] residence in Tehachapi, California with the necessary mental health supports for [A.C.]." ECF No. 19 at 5. On May 6, 2018, [Parent] filed a request for a due process hearing with the Office of Administrative Hearings ("OAH") against KCSOS-VOCS for: (1) violations of the IDEA and related California law; (2) damages and injunctive relief under IDEA; (3) damages for violations of Section 504 of the Rehabilitation Act; and (4) damages for violations of the Unruh Civil Rights Act (Cal. Civ. Code § 51et seq.). ECF No. 16 at 11; ECF No. 16-1 at 1, 11; see also ECF No. 19 at 7. . .
The parties anticipated a multi-day due process hearing beginning August 22, 2018. ECF No. 16 at 14; ECF No. 16-5 at 3. However, the parties settled the case on August 21, 2018. ECF 16-5 at 10. . . Here, Ms. Marcus has twenty-two years of legal experience, nineteen of which were exclusively dedicated to "special education and children's civil rights law. . .” A careful review of the record shows Plaintiff received substantial relief. Cortes v. Kern Cnty. Superintendent of Sch., 1:18-cv-01355-LJO-JLT, at *1 (E.D. Cal. Aug. 23, 2019)
Wright v. Tehachapi Unified Sch. Dist.
On March 18, 2020, this Court entered an order granting Plaintiffs' motion to enforce judgment and compel Defendant to pay awarded attorney's fees and costs. (Doc. 71.) Plaintiff now seeks an award of attorney's fees and costs incurred by Plaintiff in having to litigate against Defendant regarding that judgment and enforcing payment of same. (Docs. 75, 77.) For the reasons set forth below, Plaintiff's motion is GRANTED. Wright v. Tehachapi Unified Sch. Dist., Case No.: 1:16-cv-01214-JLT, at *1 (E.D. Cal. Apr. 24, 2020)
Wright v. Tehachapi Unified Sch. Dist.
Plaintiffs' son, A.W., "has autism and average cognition." (Doc. 35 at 7) A.W. "was initially assessed for special education in March 27, 2012, while residing within the Jacksonville City Schools District in Alabama." (Doc. 1-1 at 3) A private entity "conducted the assessment and recommended that Student be found eligible for special education under the category of autism." (Id.) In January 2014, A.W.'s family moved to Tehachapi, California. (Doc. 1-1 at 4) . . . According to Plaintiffs, A.W. "is capable of learning, but his autism manifests in behaviors which significantly impact he and his classmates." (Doc. 35 at 7) While attending school, A.W. exhibited "eloping and aggressive behavior," and his "parents pulled him from school.". . . His parents "sought legal help in getting appropriate behavior support using Applied Behavior Analysis ('ABA') methodology to address his behaviors so that A.W. would be safe at school." (Doc. 35 at 7) . . .
On May 5, 2015, Ms. Marcus informed the District that she was representing A.W. and his parents. (See Doc. 37 at 28, 37) In a letter dated May 9, 2015, the District made a "Confidential Letter of Settlement Pursuant to Rule 68 of the Federal Rules of Civil Procedure, Rule 998 of the California Code of Civil Procedure, Rule 408 Federal Rule of Evidence, California Evidence Code section 1152 and 20 United States Code section 1415(i)(3)(D)." (Id. at 28) The District's offer included, but was not limited to, aide support, independent evaluations, and $11,000 in compensatory education. (See id. at 29-31) Plaintiffs did not accept the offer and, instead, "filed a due process hearing request with the Office of Administrative Hearings on May 12, 2015." (Doc. 37 at 21; Doc. 1-1 at 1) In a letter dated October 16, 2015, the District made another "Offer of Settlement," indicating the terms were "slightly revised from the May 9, 2015 letter." (Doc. 25 at 157) The District offered to fund independent educational evaluations; compensatory education up to $11,000 through August 1, 2018; a functional behavioral analysis; have the teachers and aides assigned to A.W. receive Applied Behavior Analysis ("ABA") training regarding "techniques for students with autism; and hold an IEP meeting following the assessments. (Id.) . . . [that offer was denied]...
The hearing officer [in the administrative hearing, below] issued a decision on December 31, 2015. (Doc. 1 at 5) The hearing officer determined that the District "denied Student a FAPE at the November 6, 2014 IEP team meeting when it failed to provide Student with appropriate behavior services and to offer a behavioral assessment." (Doc. 1-1 at 2) In addition, the hearing officer found A.W. "missed 34 days of school as a direct result of Tehachapi's FAPE violation," and was "to 34 hours of individual instruction as compensatory education for the time [he] did not attend school due to parental safety concerns." (Id. at 29) The hearing officer ordered:
Within 10 school days of its receipt of this Decision, Tehachapi shall hold an IEP meeting to adopt an interim behavior plan.
Within 21 days of Student returning to attend school, Tehachapi shall begin to conduct a functional behavior assessment pursuant to the February 24, 2015 Consent for Assessment. An IEP team meeting shall be held to review the functional behavior assessment within 45 days of the commencement of the functional behavior assessment.
For all days that Student attends school, Tehachapi shall continue to provide Student with a one-to-one ABA-trained aide with supervision by a Board Certified Behavior Analyst for two hours per week, until the IEP team convenes an IEP meeting to review the functional behavior assessment and determines Student's behavior needs.
Tehachapi shall provide Student with 34 hours of individual instruction as compensatory education by a certified special education teacher or certified non-public school or certified non-public agency after regular school hours. Student will have 12 months from receipt of this Decision to utilize the hours. (Id. at 1-1 at 29-30) . . .
On August 16, 2016, Plaintiffs initiated the action now before the Court by filing a complaint against the District, seeking "to recover reasonable attorneys' fees and expenses incurred in connection with an administrative proceeding. . . Here, it is undisputed that Plaintiffs are a "prevailing party" within the meaning of the Act. (See generally Doc. 37 at 10-22) . . .the Court finds that given the specific knowledge of special education law required to establish the reasonableness of the fees requested related to the tasks undertaken and the results achieved at the administrative hearing, it was appropriate for Plaintiffs to continue to be represented by the Law Offices of Andrea Marcus in seeking a fee award from the District Court. . .
The District argues that "the remedies that Student obtained through the due process hearing were not better - even from the Parent's perspective - than what was previously offered by Tehachapi." (Doc. 37 at 21) . . . Plaintiffs argued that a key distinction between the District's offer and the relief ordered was the provision for "one-to-one ABA-trained aide with supervision by a Board Certified Behavior Analyst." Plaintiffs observed that while the District offered to train the teachers and aide assigned to A.W. with the ABA techniques, there was no offer to have the aide supervised by the Board-Certified Behavior Analyst. Indeed, the District acknowledged at the hearing that the implementation of such supervision would be costly. Further, the hearing officer directed actions to be taken in a much more immediate time-frame, such as directing the District to hold an IEP meeting within ten days of the decision "to adopt an interim behavior plan" and hold an IEP meeting following a functional behavior assessment within forty-five days, rather than the sixty days offered by the District. (Compare Doc. 1-1 at 29-30 with Doc. 37 at 29-30)
Given the provision for a Board-Certified Behavior Analyst and the deadlines ordered by the hearing officer, the Court finds the District's offers of settlement were not more favorable to the parents than the relief ordered. Wright v. Tehachapi Unified Sch. Dist., Case No.: 1:16-cv-01214 - JLT, at *1 (E.D. Cal. Aug. 4, 2017)
Markham v. Tehachapi Unified Sch. Dist.
“Plaintiff. . . filed a complaint seeking attorney's fees and costs related to a due process hearing before California's Office of Administrative Hearings ("OAH"). ECF No. 1. On April 4, 2018, Defendant Tehachapi Unified School District filed a motion to dismiss under Federal Rule of Civil Procedure ("Rule") 12(b)(6),” . . . While the due process hearing would not have taken place but for the school's refusal to allow Plaintiff her requested mode of behavior therapy, and the transactions are somewhat related, they constitute separate factual nuclei. Plaintiff's right to bring this civil action to determine whether she is entitled to attorney's fees and the amount, if any, of those fees is derived from the IDEA's fee shifting provision. The right to bring this action was created only after K.M. prevailed in the IDEA due process hearing. Contrary to Defendant's argument, the mere fact that Plaintiff included facts regarding the history of this attorney's fees action in complaints filed in both K.M. and this case does not conclusively establish that the claims arise from the same nucleus of fact. See ECF No. 5 at 7-8. Plaintiff included those facts as background material, not as the substance of her claim in this matter. ECF No. 8 at 8. Accordingly, the Court concludes that the fourth factor does not weigh in favor of the identity of the claims at issue here. . . For the foregoing reasons, Defendant's motion to dismiss is DENIED. Markham v. Tehachapi Unified Sch. Dist., 1:18-cv-00303-LJO-JLT, at *9-10 (E.D. Cal. June 20, 2018)
Tehachapi Unified Sch. Dist. v. K.M.
At the time of the administrative hearing, defendant was a nine-year-old girl eligible for special education under the categories of autism and speech or language impairment. (Doc. No. 1 at 8.) Defendant's autism adversely impacted her speech skills and slowed the development of her language abilities. (Id. at 9.) Defendant stopped talking for several years during which she only used manual signs and gestures to communicate. (Id.) She became verbal again in 2014 when she was seven years old. (Id.) In March and April of 2016, defendant's verbal abilities remained limited. (Id.) Defendant became frustrated and displayed aggressive behavior when she could not communicate her needs and wants. (Id. at 10.) . . . plaintiff made its offer of speech services for the extended school year without an IEP team discussion of defendant's potential for regression of her speech and language skills during the summer break or for her limited recoupment of those skills during the following school year. (Id.) Defendant's parent did not consent to the March and April 2016 IEP offers. (Id. at 19.). . .
In mid-May, defendant's parent informed plaintiff in writing of her intention to place defendant at Lindamood Bell Learning Processes, a non-public agency that provides language development services, for the 2016 summer period and requested that plaintiff fund defendant's attendance to this program. (Id.) Plaintiff sent the parent a written notice denying her request on June 6, 2016. (Id.) Nonetheless, defendant completed the Talkies program at Lindamood Bell from June 13, 2016 to July 22, 2016, which taught her sentence structure and how to use words to describe pictures and events. (Id. at 20.) The executive director of the program, Anne Perry, testified that these skills form the basis for pragmatic communication. (Id.) Following the six-week program, defendant showed a ten-month growth in her receptive vocabulary, demonstrating a significant development of her language and communication abilities. (Id.) . . Defendant filed a due process complaint, which initiated the hearing process, on August 12, 2016. (Id. at 7.) . . . As formulated by the ALJ, the hearing concerned the issue of whether plaintiff denied defendant a FAPE in defendant's March 2016 IEP by predetermining the speech and language services that it offered based on the availability of personnel and not on defendant's needs for speech service. (Id. at 8.) . . . the ALJ issued a decision on December 1, 2016, finding that plaintiff went to the IEP meetings with a predetermined offer of speech and language services and thereby substantively deprived defendant's parent the opportunity to participate in the IEP meeting and subsequently denied defendant a FAPE. (Id. at 28.) The ALJ also ordered plaintiff to fully fund defendant's 2016 summer program at Lindamood Bell, including mileage costs. (Id. at 29.) Plaintiff has appealed from the decision of the due process hearing by filing this action pursuant to 20 U.S.C. § 1415(i)(2). (Doc. No. 1 at 1.) . . .
The ALJ reviewed a notarized and certified transcription of the March 31, 2016 meeting and also had witnesses testify as to what occurred during that meeting. Although plaintiff contends that the issue of speech services was discussed over multiple days, the ALJ decision did not find Mr. Ferrell's testimony persuasive in that respect. For instance, Mr. Ferrell "testified that he did not offer additional one-to-one speech services [to defendant] because there was nothing to support that [defendant] required additional minutes of individual speech and language services." (Id. at 16.) The ALJ found, however, that "Mr. Ferrell's testimony was not compelling because he did not solicit Ms. Winchell's opinion or that of any of the other team member (sic) as to whether Student required more speech services to address her significant communication deficits." (Id.) In short, the evidence regarding the April 19, 2016 meeting also supported the ALJ's conclusion that plaintiff "unilaterally determined its offer of speech and language services prior to the IEP meeting and presented the offer without the intention of changing that offer." (Id. at 19.). . .
There is no legal or logical support for Tehachapi's contention that it was free to disregard Parent and Student's procedural safeguards pursuant to its theory of stay put. If Tehachapi's theory is given credence, whenever a student invoked stay put, a procedural violation could never result in a denial of FAPE. (Doc. No. 1 at 28.) The court also does not find plaintiff's argument on this point to be persuasive because the procedural requirements of the IDEA are to ensure meaningful parent participation in the formulation of an IEP, rather than merely signing off on a predetermined final product. M.C. by and through M.N. v. Antelope Valley Union High Sch. Dist., 858 F.3d 1189, 1197 (9th Cir. 2017) (noting that a unilateral amendment of an IEP is a per se procedural violation of the IDEA because it impairs parents' right to participate at every step of the IEP drafting process); see also Tamalpais Union High School District v. D.W., 271 F. Supp. 3d 1152, 1161 (N.D. Cal. 2017). If the court were to accept plaintiff's argument, a stay put order would always preclude a procedural violation resulting in the denial of FAPE, which does not facilitate meaningful parental participation. This cannot be. Accordingly, the court rejects plaintiff's argument and concludes that the ALJ did not abuse her discretion in applying the stay put doctrine. . . .Additionally, the ALJ cited the decision in Anchorage for the proposition that "[a]n agency cannot eschew its affirmative duties under the IDEA by blaming the parents." (Doc. No. 1 at 24.) The ALJ assessed plaintiff's efforts to discuss defendant's request for additional individual student and language services, observing that "[t]he law requires Tehachapi to engage in an open discussion about Student's speech therapy needs and her request for increased services, and to show a willingness to entertain an alternative offer." (Id.) Mr. Ferrell testified at the hearing that the district did not have an open discussion about K.M.'s needs because her parents did not make a specific request for additional minutes of speech and language services. (Id. at 16.) The ALJ addressed Mr. Ferrell's testimony in this regard by citing the decision in Anchorage to show that the district could not blame the parents for failing to ensure meaningful participation. See Anchorage, 689 F.3d at 1055. . .
Plaintiff argues that the ALJ erred by abusing her discretion in awarding reimbursement to defendant for a private reading program that did not relate to the student's due process complaint regarding speech and language services. (Doc. No. 25 at 26.) Plaintiff argues that despite having broad discretion to craft a remedy, the ALJ abused her discretion by awarding "equitable relief that is not tied to the procedural violation or the needs of the Student." (Id. at 27.)
The court disagrees with plaintiff's assessment in this regard. The impasse that was reached at the March 31, 2016 IEP meeting involved speech and language services. (Doc. No. 1 at 14-17.) As an alternative to the services offered by plaintiff, defendant's parents enrolled her in a program at Lindamood Bell focusing on vocabulary development. (Id. at 18.) The factual record developed before the ALJ reflects that the purpose of the Talkies program "was to develop language, not to target [defendant's] IEP speech goals." (Id.) However, after six weeks in that program, defendant could "verbalize six to seven-word sentences, and make requests using complete sentences." (Id.) Given defendant's history of being unable to communicate effectively, defendant's improved communication abilities, following her participation in the Talkies program, demonstrates that the services she received at Lindamood Bell were directly related to IEP speech goals of helping her verbalize complete sentences. (See id. at 11-14, 19.) The Talkies program provided the services and educational opportunity that defendant was denied when plaintiff predetermined its offer of speech and language services at the March 2016 IEP meeting.
Given the evidence of record, plaintiff has not carried its burden on appeal of demonstrating that the ALJ erred by awarding defendant reimbursement for the Talkies program. . . . In the final issue presented on appeal, plaintiff contends that defendant is not entitled to the attorney's fees she is likely to seek . . . As suggested by plaintiff in its reply brief, defendant's request for the award of fees is premature. The prevailing party, in this the defendant, should file a separate motion for attorneys' fees and costs pursuant to Local Rule 293(a). (Doc. No. 28 at 2.). . . For all the reasons set forth above . . Plaintiff's arguments on appeal are rejected and the ALJ decision is affirmed. Tehachapi Unified Sch. Dist. v. K.M., No. 1:16-cv-01942-DAD-JLT, at *5-16 (E.D. Cal. Sep. 28, 2018)
Ninth Circuit Court of Appeals, Case: 17-16970, 11/20/2018
The record reflects that Appellees were primarily concerned about A.W.’s dangerous behavior at school, and the district court correctly concluded that the Administrative Law Judge’s Order offered comparatively more favorable provisions than Appellant’s May 2015 settlement offer for managing A.W.’s behavior. We deny Appellant’s motion for judicial notice of extraneous materials submitted in connection with its argument, but we note that those materials would not alter our analysis. The district court also did not abuse its discretion in calculating the amount of Appellees’ fee award. The court carefully examined the evidence and . . . reasonably concluded that no additional reductions were necessary to account for Appellees’ partial success, particularly given that Appellees obtained the relief that was most important to them. . . Finally, the district court did not abuse its discretion in calculating the lodestar using hourly rates from the Central District of California. Although courts ordinarily look to the prevailing market rates in the community where the fee action was brought, Blum v. Stenson, 465 U.S. 886, 895 (1984), they may look outside the forum when the relevant community lacks attorneys with “the degree of experience, expertise, or specialization required to handle properly the case.” Gates v. Deukmejian, 987 F.2d 1392, 1405 (9th Cir. 1992). Appellant acknowledges that qualified counsel was unavailable in Appellees’ community, and it offers no support for the argument that the district court was required to examine the availability of counsel in other communities within the Eastern District of California before considering the prevailing rates of the Central District. AFFIRMED. UNPUBLISHED DECISION, Ninth Circuit Court of Appeals, Case: 17-16970, 11/20/2018
Ninth Circuit Court of Appeals, Case: 17-16210, 11/19/2018
The district court did not abuse its discretion in allowing Quatro to present the testimony of Gustavo Cortes and Brenda Markham, whose names were not included in Quatro’s initial disclosures, and by relying on their testimony as part of Quatro’s case-in-chief. Even if Quatro should have disclosed Cortes’ and Markham’s names earlier under Federal Rule of Civil Procedure 26(a)(1)(A)(i), we can fairly discern from the record that the late disclosure was substantially justified and harmless, and therefore excusable under Federal Rule of Civil Procedure 37(c)(1). See Conn. Gen. Life Ins. Co. v. New Images of Beverly Hills, 482 F.3d 1091, 1096 (9th Cir. 2007) (holding we may review the record independently to determine if the district court has abused its discretion in applying Rule 37). It was substantially justified because it was triggered by the District’s own late disclosure of three declarations two weeks before trial, and it was harmless because each party was able to present its arguments about the fee dispute. Although the District says it was prejudiced, it has not identified any evidence it would have presented had it been afforded earlier notice of the testimony. UNPUBLISHED DECISION, Ninth Circuit Court of Appeals, Case: 17-16210, 11/19/2018
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