Bueno v. Bass Lake Joint Union Elementary School District

Opinion

1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 8 DAISY BUENO, individually and as CASE NO. 1:21-CV-0436 AWI HBK guardian ad litem of S.B., a minor, 9 ORDER RE: MOTION FOR CIVIL Plaintiffs CONTEMPT 10 v. 11 BASS LAKE JOINT UNION 12 ELEMENTARY SCHOOL DISTRICT,

13 Defendant

14 15 I. Background 16 Plaintiff S.B. is a developmentally disabled student with exceptional needs who lives 17 within the bounds of Defendant Bass Lake Joint Union Elementary School District (“Bass Lake”). 18 Plaintiff Daisy Bueno (“Ms. Bueno”) is S.B.’s legal guardian. In May 2019, Ms. Bueno and Bass 19 Lake began the process of determining what education services would be appropriate for S.B. On 20 October 2, 2019, Ms. Bueno requested a due process hearing before the California Office of 21 Administrative Hearings (“OAH”). The parties then reached a settlement agreement in November. 22 In the following months, disputes again arose between the parties and Ms. Bueno filed a second 23 OAH complaint on June 26, 2000, which became Case Number 2020060992. Administrative Law 24 Judge Judith Pasewark heard the matter on several days between October 20 and November 5, 25 2020. Judge Pasewark issued her ruling on December 23, 2020 (“OAH Decision”) concluding 26 that Bass Lake denied S.B. a free appropriate public education (“FAPE”). Doc. 1-1. Plaintiffs 27 filed the present case on March 16, 2021, alleging violations of Section 504 of the Rehabilitation 28 Act and the Americans with Disabilities. Act. 1 The OAH Decision imposed a stay put Individualized Education Plan (“IEP”) under the 2 terms of the Individuals with Disability Education Act (“IDEA”). Unfortunately, S.B. fell ill and 3 was hospitalized in Palo Alto, CA at various times in 2020 and 2021. In addition, the COVID-19 4 pandemic was creating difficulties in regular function for everyone, including schools. S.B.’s IEP 5 was not being fully implemented for a variety of reasons. On September 10, 2021, Plaintiffs 6 sought a preliminary injunction to enforce the IEP. Doc. 10. Bass Lake opposed the motion. Doc. 7 18. On November 30, 2021, Plaintiffs’ motion was granted. Doc. 21. Plaintiffs filed the present 8 motion on February 10, 2022, alleging that Bass Lake has not complied with the terms of the IEP 9 and were thus violating this court’s injunction; the motion sought sanctions under civil contempt. 10 Doc. 23. Bass Lake opposes the motion. Doc. 24. 11 12 II. Legal Standards 13 Courts “have inherent power to enforce compliance with their lawful orders” through civil 14 contempt orders. Shillitani v. United States, 384 U.S. 364, 370 (1966); Shell Offshore Inc. v. 15 Greenpeace, Inc., 815 F.3d 623, 629 (9th Cir. 2016). Civil contempt includes “a party’s 16 disobedience to a specific and definite court order by failure to take all reasonable steps within the 17 party’s power to comply.” Reno Air Racing Ass’n, Inc. v. McCord, 452 F.3d 1126, 1130 (9th Cir. 18 2006) (quoting In re Dual-Deck Video Cassette Recorder Antitrust Litig., 10 F.3d 693, 695 (9th 19 Cir.1993)). 20 “In a civil contempt action, ‘[t]he moving party has the burden of showing by clear and 21 convincing evidence that the contemnors violated a specific and definite order of the court. The 22 burden then shifts to the contemnors to demonstrate why they were unable to comply.’” Federal 23 Trade Comm’n v. Enforma Nat. Prod., Inc., 362 F.3d 1204, 1211 (9th Cir. 2004) (citations 24 omitted). “The contempt need not be willful; however, a person should not be held in contempt if 25 his action appears to be based on a good faith and reasonable interpretation of the court’s order.” 26 Reno Air Racing Ass’n v. McCord, 452 F.3d 1126, 1130 (9th Cir. 2006) (quotations omitted). 27 “Judicial sanctions in civil contempt proceedings may, in a proper case, be employed for 28 either or both of two purposes: to coerce the defendant into compliance with the court's order, and 1 to compensate the complainant for losses sustained. Where compensation is intended, a fine is 2 imposed, payable to the complainant. Such fine must of course be based upon evidence of 3 complainant’s actual loss, and his right, as a civil litigant, to the compensatory fine is dependent 4 upon the outcome of the basic controversy.” United States v. United Mine Workers, 330 U.S. 258, 5 303-4 (1947) (citations omitted). “If the fine, or any portion of the fine, is coercive, it should be 6 payable to the court, not [the opposing party].” Gen. Signal Corp. v. Donallco, Inc., 787 F.2d 7 1376, 1380 (9th Cir. 1986). 8 9 III. Discussion 10 Plaintiffs’ motion to enforce the IEP was granted on November 30, 2021. Doc. 21. Much 11 of what the parties dispute in their briefing covers actions and omissions from before that date. 12 This order will only address Bass Lake’s actions after November 30, 2021. 13 14 A. Compliance With the IEP 15 Plaintiffs argue that Bass Lake has not complied with the stay put injunction and has not 16 fulfilled the requirements of S.B.’s IEP. In particular, Plaintiffs point out that the IEP requires the 17 following services: 18 a. 20 hours per week of home-based functional academics; b. 20 hours per week of nursing services pursuant to the terms contained in the 19 November 14, 2019 IEP amendment; c. 60 minutes per week of direct vision services; 20 d. 60 minutes per week of vision consultation services; e. 30 minutes per week of orientation and mobility services; 21 f. 30 minutes per month of orientation and mobility consultation services; g. 120 minutes per week of direct physical therapy services; 22 h. 60 minutes of physical therapy consultation services provided 10 times per year; i. 60 minutes per week of direct occupational therapy; 23 j. 30 minutes per month of deaf and hard of hearing consultation; k. 120 minutes per week of direct speech and language services; and 24 l. 60 minutes per month of speech and language consultation. 25 Doc. 23-1, p. 74-75. Ms. Bueno has provided a declaration dated February 9, 2022 stating that: 26 5. During December 2021, the District provided six hours of service as follows: a. Nursing services for four hours; 27 b. Occupational therapy for one hour; c. Vision services for thirty minutes; and 28 d. Orientation and mobility services for thirty minutes. 1 ….

2 7. The District has not provided any services to S.B. since December 2, 2021. 3 Doc. 23-2, 2:3-9. 4 In opposition, Bass Lake has argued that it “has been laboring to provide S.B. with all of 5 the services, but has not been able to provide some of the required services due to circumstances 6 beyond its control, including the global pandemic brought about by COVID-19 and the impact it 7 had both on the DISTRICT and its staff, in handling the many additional challenges, including but 8 not limited to contact tracing, as well as the shortages experienced in labor market, retirements and 9 resignations.” Doc. 24, 2:11-15. Diane Hagood, Bass Lake’s special education coordinator, has 10 provided a declaration dated March 1, 2022 that sets out what Bass Lake has done comply with 11 the IEP. With respect to actions after November 30, 2021, Bass Lake appears to have addressed 12 some but not all of the specific list of services (items a through l) the IEP required to be provided. 13 In sum, Bass Lake argues that it “has taken all reasonable steps with[in] its power to comply.” 14 Doc. 24, 7:20. 15 In reply, Plaintiffs state “There are so many misrepresentations contained in Bass Lake’s 16 Opposition it is not possible to respond to each one.” Doc. 25, 2:1-2. This response is not 17 sufficient. Without proper declarations to specifically contradict Ms. Hagood’s statement, her 18 declaration (together with Ms. Bueno’s declaration) will be used to determine what services were 19 provided after November 30, 2021. 20 For item a (30 hours per week of home-based functional academics), Ms. Hagood stated 21 “9. For example, the DISTRICT recruited, through the Maxim Agency, a teacher specifically to 22 work with S.B. named Lewis Marques. Mr. Marquez accepted the position and moved from 23 Arizona to Coarsegold. He participated in one Google Meets session to observe the Trexo 24 demonstration, and then resigned and returned to Arizona.” Doc. 24-1, 2:18-21. Ms. Hagood 25 provides no indication that any academic services have been provided after November 30, 2021. 26 For item b (20 hours per week of nursing services), Ms. Hagood stated “13. Nursing 27 services for S.B. recently resumed in her home on Tuesday, February 8, 2022, although BUENO 28 did not mention that in her declaration dated the day after, February 9, 2022.” Doc. 24-1, 3:13-14. 1 Additionally, Ms. Bueno stated that Bass Lake provided four hours of nursing services in 2 December 2021. Doc. 23-2, 2:4. The parties also continue their dispute from prior briefing 3 regarding whether certain specific services that a nurse might perform would require a doctor’s 4 prescription. See Doc. 24, 5:3-6:3; Doc. 25, 4:5-26. That dispute is not material in this motion as 5 it is plain that S.B. was not provided anything close to 20 hours of nursing services a week. 6 For items c and d (60 minutes per week of direct vision services and 60 minutes per week 7 of direct vision consultation services), Ms. Hagood stated “18. As for the Visual Impairment 8 Specialist, the DISTRICT hired Justin Adams. An employee of Madera County Superintendent of 9 Schools, to provide services to S.B. Mr. Adams provides services based on his and Plaintiffs’ 10 availability.” Doc. 24-1, 4:10-12. Ms. Hagood did not give any further information about when 11 vision services or consults were actually provided to S.B. Ms. Bueno stated that 30 minutes of 12 vision services were provided in December 2021. Doc. 23-2, 2:6. 13 For items e and f (30 minutes per week of orientation and mobility services and 30 minutes 14 per month of orientation and mobility consultation services), Ms. Hagood stated “15. As for the 15 Orientation and Mobility Specialist, the DISTRICT hired Steve Wimbish, an employee of Madera 16 County Superintendent of Schools, to provide services to S.B. Mr. Adams provides services based 17 on his and Plaintiff’ availability. Attached hereto as Exhibit ‘A’ is a true and correct copy of his 18 service log.” Doc. 24-1, 3:23-26. The log only documents services provided in October and 19 November 2021, outside the time frame at issue in this motion. Doc. 24-1, Ex. A. Ms. Bueno 20 stated that 30 minutes of orientation and mobility services were provided in December 2021. Doc. 21 23-4, 2:7. 22 For items g and h (120 minutes per week of direct physical therapy services and 60 23 minutes of physical therapy consultation services provided 10 times per year), Ms. Hagood stated 24 “14. As for physical therapy for S.B., the DISTRCT has contacted the Hawaii-California Elks 25 Program which advised that they will only coordinate directly with the parents and so that 26 information was passed along to BUENO.” Doc. 24-1, 3:20-22. Ms. Hagood did not give any 27 further information about when physical therapy services or consults were actually provided to 28 S.B. 1 For item i (60 minutes per week of direct occupational therapy), Ms. Hagood stated “17. 2 As for the Occupational Therapist, the DISTRICT hired Judith Weiss, an employee of Madera 3 County Superintendent of Schools, to provide services to S.B. Ms. Weiss provides services based 4 on her and Plaintiffs’ availability. Attached hereto as Exhibit ‘C’ is a true and correct copy of her 5 service log.” Doc. 24-1, 4:6-9. The log shows 45 minutes of service was provided on December 2, 6 2021 and 20 minutes of consultation was provided on February 1, 2022. Doc. 24-1, Exhibit C. 7 This is roughly consistent with Ms. Bueno’s statement that one hour of occupational therapy was 8 provided in December 2021. Doc. 23-2, 2:5. 9 For item j (30 minutes per month of deaf and hearing consultation), Ms. Hagood stated 10 “16. As for the Deaf and Hard of Hearing Specialist, the DISTRICT hired Nannette Oswald, an 11 employee of Madera County Superintendent of Schools, to provide services to S.B. Ms. Oswald 12 had attempted on three occasions to schedule consults with BUENO, but to no avail. Attached 13 hereto as Exhibit ‘B’ is a true and correct copy of an email from her explaining her attempts.” 14 Doc. 24-1, 4:1-5. The email, dated February 17, 2022 from Ms. Oswald to Ms. Hagood states that 15 she contacted Ms. Bueno on December 20, January 20, and February 17 for consultation and 16 “explained [to Ms. Bueno that Ms. Oswald] will most likely show up there in person in March.” 17 Doc. 24-1, Ex. B. 18 For items k and l (120 minutes per week of direct speech and language services and 60 19 minutes per month of speech and language consultation), Ms. Hagood stated “10. The DISTRICT 20 hired a Speech and Language Pathologist, Kendra Albanese of Granite Mountain Home Health, to 21 work with S.B., however, in December last year, she too resigned and was not willing to continue 22 with S.B.” Doc. 24-1. 2:22-24. Ms. Hagood provides no indication that any speech and language 23 services or consult has been provided after November 30, 2021. 24 Ms. Hagood also stated that “19. In addition to the calls and visits made to local health 25 agencies in Fresno, Madera, Mariposa counties, ACC Providers and physical therapists, the 26 DISTRICT is and has been utilizing the services of the following agencies to recruit individuals to 27 fill the positions needed for S.B.: [list of 11 agencies].” Doc. 24-1, 4:13-26. Bass Lake also argues 28 that “Plaintiffs are not always available to accept the services when they are available.” Doc. 24, 1 9:13. 2 Even if Ms. Hagood’s statement was to be credited as correct despite the discrepancies 3 with Ms. Bueno’s statement, this record clearly shows that Bass Lake did not fully or even 4 substantially comply with the requirements of the IEP. Given the great disparity between the few 5 hours documented and the total number of hours that are required, Bass Lake can be said to have 6 only provided minimal service. The COVID-19 pandemic has caused great difficulties for persons 7 and organizations around the world. But, that does not excuse complete non-compliance with the 8 IEP. “When the child’s last implemented IEP cannot be implemented due to a change in 9 circumstances, stay-put requires that the student receive a placement that, as closely as possible, 10 replicates the last placement.” R.F. v. Delano Union Sch. Dist., 224 F. Supp. 3d 979, 985 (E.D. 11 Cal. 2016), citing Van Scoy ex rel. Van Scoy v. San Luis Coastal Unified Sch. Dist., 353 F. Supp. 12 2d 1083, 1086 (C.D. Cal. 2005). Even with the present difficulties, Bass Lake must at least 13 substantially comply with the IEP. The Northern District of Georgia has found that 14 notwithstanding the pandemic, “only scheduling a student for half of the instruction required by 15 his IEP” was a failure to implement the IEP. T.H. v. Dekalb Cty. Sch. Dist., 564 F. Supp. 3d 1349, 16 1359 (N.D. Ga. 2021). As for Bass Lake’s assertion that Plaintiffs’ lack of cooperation may have 17 impeded the provision of some services, Bass Lake has provided no evidence of any specific 18 incident where that might have excused any of the IEP obligations. However, the record does 19 appear to show that Bass Lake’s efforts have been increasing. 20 Plaintiffs have established that Bass Lake failed to comply with this court’s injunction and 21 the IEP over the period December 1, 2021 through February 10, 2022. Sanctions to ensure that 22 Bass Lake makes greater effort to provide S.B. all of her services are warranted. 23 24 B. Sanctions 25 Plaintiffs ask for sanctions in the form of a monetary penalty. They estimate that the IEP 26 specified “approximately 48 hours per week of services” and that “approximately ten weeks, have 27 passed since the Court issued its Order.” Doc. 23, 4:10-13. In the OAH Decision, Judge Pasewark 28 awarded Plaintiffs 500 hours of compensatory education services, specifying “The cost for 500 1 hours of compensatory services shall not exceed the sum of $75,000.” Doc. 23-1, at 73. Plaintiffs 2 use that language to value the cost of all education services at $150 per hour. Plaintiffs request 3 compensatory sanctions in the amount of $66,825 (48 hours per week x 10 weeks x $150 per hour) 4 and that “Any compensatory sanctions awarded to Plaintiffs would be deposited into a special 5 needs trust for the benefit and care of S.B. Plaintiffs would require the District to fund the 6 establishment of such trust, which is estimated to be around $6,000.” Doc. 23, 4:15-17 and 4:25- 7 27. Plaintiffs also seek to be awarded $7,200 per week in coercive sanctions to ensure future 8 compliance and an order for Bass Lake to contact the California Department of Education for 9 assistance in implementing the IEP. Doc. 23, 4:17-24. Additionally, Plaintiffs seek attorney’s fees 10 and costs associated with the present motion. Doc. 23, 4:24-5:1. 11 Bass Lake objects to using weeks instead of school days to calculate sanctions because the 12 school district was not in session for two weeks for winter holidays. Bass Lake also asserts that 13 the $75,000 figure Judge Pasewark used in the IEP was a “cap…not intended to establish the 14 reasonable value of such services.” Doc. 24, 9:7-8. 15 On this point, Bass Lake’s arguments are reasonable. For compensatory damages, 16 Plaintiffs bear the burden of proof. See In re 1601 W. Sunnyside #106, 2010 Bankr. LEXIS 4903, 17 at *17 (Bankr. D. Idaho Dec. 30, 2010) (“In order to recover such damages, the party asserting 18 compensatory damages must specifically prove not only the right to damages, but also the amount 19 of damages”). Plaintiffs base their sanctions request on an estimate of 10 weeks of no services 20 being delivered. This does not take into account the school calendar or the fact that there were 21 some minimal services that Bass Lake did provide in this time. There is also some dispute 22 between the declarations of Ms. Bueno and Ms. Hagood. Instead of a more specific accounting, 23 Plaintiffs seek sanctions based on an overinclusive estimate of time. The same is true of cost. 24 Plaintiffs have not provided any evidence of the actual cost of the specific services that Bass Lake 25 should have provided. While Judge Pasewark’s language in the IEP is instructive, it is not 26 sufficient. Further, Plaintiffs’ request for compensation for educational services based on civil 27 contempt overlaps and intertwines with Plaintiffs’ substantive claims in this case. The U.S. 28 Supreme Court has noted that this form of sanction “must of course be based upon evidence of 1 | complainant’s actual loss, and his right, as a civil litigant, to the compensatory fine is dependent 2 | upon the outcome of the basic controversy.” United States v. United Mine Workers, 330 U.S. 258, 3 | 303 (1947). These issues merit against an award of compensatory sanctions in this form. 4 Instead, courts commonly award attorney’s fees as compensation: “A court may award the 5 | aggrieved party the attorney’s fees and costs incurred in obtaining the finding of contempt as a 6 | compensatory contempt sanction.” Harrington v. Tackett, 2022 U.S. Dist. LEXIS 95466, at *2 (D. Nev. May 27, 2022) (citing Donovan v. Burlington N., 781 F.2d 680, 684 (9th Cir. 1986)); see 8 | also RG Abrams Ins. v. Law Offices of C.R. Abrams, 2022 U.S. Dist. LEXIS 228226, at *27 9] (C.D. Cal. Dec. 19, 2022). This part of Plaintiffs’ request for sanctions may be granted. If the 10 | parties’ continuing attempts at resolving this case through settlement do not bear fruit and Bass 11 | Lake fails to comply with the injunction to implement the IEP in the future, other forms of 12 | sanctions may be warranted. 13 14 IV. Order 15 Plaintiffs’ motion for civil contempt is GRANTED. Bass Lake is reminded of its 16 | obligation to comply with court orders and to implement S.B.’s IEP. Plaintiffs may seek 17 | attorney’s fees and costs for this civil contempt motion. 18 19 IT IS SO ORDERED. 59 | Dated: _ April 28, 2023 —. 7 Zz : Z Cb Led — SENIOR DISTRICT JUDGE 21 22 23 24 25 26 27 28

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