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Lozano, Smith law firm
Lozano Smith lawyers escape to
Fagen Friedman Fulfrost
Fagen Friedman Fulfrost
U.S. District Judge Oliver W. Wanger, in his 2005
sanctions order, ordered all 80 lawyers in the
Lozano Smith law firm to take ethics classes. In the
Robert Moser case, the judge said that Elaine Yama
and her firm engaged in "repeated misstatements of
the record, frivolous objections to plaintiff's
statement of facts, and repeated
mischaracterizations of the law."
Judge Wanger's words also exactly describe what
has happened in many San Diego cases, thanks to
San Diego County Office of Education-Joint Powers
Authority favoritism toward certain law firms.
Shamefully, it is a panel of school superintendents
who choose these lawyers. Superintendent Terry
Ryan of Grossmont Union High School District has
made it clear in board meetings that he wants only
lawyers WHO WILL MAKE SURE THE SCHOOL
DISTRICT WINS, not one who will advise the district
to follow the law.
The federal court found the following characteristics
in the law firm in the Moser case:
1. A culture of misrepresentation and deception
2. The firm clearly suffers from a lack of
professionalism or a lack of understanding of the
law.
3. Many of Lozano’s filings cannot be interpreted as
anything other than bad-faith attempts to mislead
the court, obscure the real facts, and to obstruct
and/or harass the plaintiff, either to wear down the
plaintiff or to win a victory that is clearly unjustified
by either the facts or the law.
4. While isolated errors or misstatements might be
excused, given the size of the record, the sheer
volume of misstatements, the only reasonable
inference that can be drawn is that lawyers
intended to obstruct at every step and stand
education law, as well as labor law, the penal code,
and the constitutions of California and the United
States, on their heads.
sanctions order, ordered all 80 lawyers in the
Lozano Smith law firm to take ethics classes. In the
Robert Moser case, the judge said that Elaine Yama
and her firm engaged in "repeated misstatements of
the record, frivolous objections to plaintiff's
statement of facts, and repeated
mischaracterizations of the law."
Judge Wanger's words also exactly describe what
has happened in many San Diego cases, thanks to
San Diego County Office of Education-Joint Powers
Authority favoritism toward certain law firms.
Shamefully, it is a panel of school superintendents
who choose these lawyers. Superintendent Terry
Ryan of Grossmont Union High School District has
made it clear in board meetings that he wants only
lawyers WHO WILL MAKE SURE THE SCHOOL
DISTRICT WINS, not one who will advise the district
to follow the law.
The federal court found the following characteristics
in the law firm in the Moser case:
1. A culture of misrepresentation and deception
2. The firm clearly suffers from a lack of
professionalism or a lack of understanding of the
law.
3. Many of Lozano’s filings cannot be interpreted as
anything other than bad-faith attempts to mislead
the court, obscure the real facts, and to obstruct
and/or harass the plaintiff, either to wear down the
plaintiff or to win a victory that is clearly unjustified
by either the facts or the law.
4. While isolated errors or misstatements might be
excused, given the size of the record, the sheer
volume of misstatements, the only reasonable
inference that can be drawn is that lawyers
intended to obstruct at every step and stand
education law, as well as labor law, the penal code,
and the constitutions of California and the United
States, on their heads.
| After Judge Wanger's order, Did Lozano, Smith change its tactics? No. The lawyers involved just went to other law firms, so they could continue the same practices without scrutiny. |
Education Law Firm Slammed by
Federal Judge
Federal Judge
| A Few Judges and Prosecutors are getting tired of lawyers who violate the law |
| ACSA Online - Events - Pupil Services and Special Ed... - Published on: 1/14/2000 Last Visited: 9/1/2000 Howard Fulfrost, attorney, Lozano Smith Acknowledging that school districts may not have the resources to fulfill their obligations to all children with disabilities, the Individuals with Disabilities Education Act permits school districts to use private schools and agencies as a means of carrying out federal and state special education mandates.After attending this workshop, a school administrator will know how to, among other things :. Distinguish among the three types of private school students with disabilities and a school district's obligations to each under the IDEA and related California law ;.Develop a policy for serving parentally placed private school students ;. http://www.acsa.org/events/Pupil_Svcs_Special_Ed This link has been broken by ACSA (Association of California School Administrators): Here's the message I got: "Page Not Found "The page you are looking for is currently unavailable." |
| Howard Fulfrost Shareholder Location: Santa Monica Howard J. Fulfrost is a shareholder in the Santa Monica office and co-chair of the firm’s Special Education Practice Group. Mr. Fulfrost brings to the firm a wealth of knowledge regarding students with disabilities and special education. He represents and advises school districts, county offices of education, and Special Education Local Plan Areas with regard to all aspects of special education law. A favored presenter at the firm's Special Education Legal Consortia, Mr. Fulfrost is frequently asked to speak throughout the country on a variety of special education legal topics. Prior to joining the firm, he was employed as staff counsel for the Division of Special Education at Los Angeles Unified School District, the second largest school district in the nation. In that position, he represented the District in hundreds of due process cases and provided ongoing legal support to every level of District administration in all areas of special education law. Before law school, he completed his Master of Arts degree in Developmental Psychology at Teachers College, Columbia University, and coordinated a community-based program in two New York City high schools. As an undergraduate, he was a student teacher in special education at the in-patient school at UCLA's Neuropsychiatric Institute. His having been named a Southern California Rising Star for 2004 and 2005 evidences Mr. Fulfrost’s position as a leading education attorney in California. Mr. Fulfrost earned his law degree from the University of San Francisco School of Law in 1993. He holds a Master of Arts degree from Columbia University and a Bachelor of Arts from the University of California, Los Angeles. Howard Fulfrost Lozano Smith 2800 28th Street, Suite 240 Santa Monica, CA 90405-6205 Phone: (310) 382-5300 Fax: (310) 382-5310 hfulfrost@lozanosmith.com |
After a federal judge ordered the
lawyers at his firm to take an ethics
class, Howard Fulfrost left Lozano
Smith law firm.
He apparently is trying to hide this fact:
lawyers at his firm to take an ethics
class, Howard Fulfrost left Lozano
Smith law firm.
He apparently is trying to hide this fact:
Howard Fulfrost's current biography on his
law firm site states:
"Prior to joining the firm, Mr. Fulfrost was an
associate, and then a shareholder, with
another California education
law firm. While at that firm, he was co-
chairperson of the Special Education
Practice Group – leading its growth to
California’s largest and most well-
recognized special education practice."
law firm site states:
"Prior to joining the firm, Mr. Fulfrost was an
associate, and then a shareholder, with
another California education
law firm. While at that firm, he was co-
chairperson of the Special Education
Practice Group – leading its growth to
California’s largest and most well-
recognized special education practice."
| Here's the bio Mr. Fulfrost posted on the website of his prior firm, Lozano Smith. The original web address was http://www.lozanosmith.com/attorneyprofile.asp?aid=64. This page was cached by ZoomInfo. |
Lying, obstruction cited in sanctions for law firm
Fresno's Lozano Smith, attorney ordered to train in ethics
By Erin Kennedy
The Fresno Bee,
January 18, 2005
U.S. District Court Ruling
Fresno law firm Lozano Smith and its attorney Elaine Yama have been sanctioned by a
federal judge for lying, misrepresenting law and facts, and intentionally dragging out a case
involving a school district and a special education student.
U.S. District Court Judge Oliver Wanger fined the law firm, Yama and Bret Harte Union High
School District in Calaveras County $5,000 each.
He also ordered Yama to take 20 hours of ethics courses and Lozano
Smith to conduct ethics training for all of its attorneys and
shareholders.
Lozano Smith is one of the largest education law firms in the state and the main legal
representation for Fresno Unified, Clovis Unified and many other local school districts...
Fresno's Lozano Smith, attorney ordered to train in ethics
By Erin Kennedy
The Fresno Bee,
January 18, 2005
U.S. District Court Ruling
Fresno law firm Lozano Smith and its attorney Elaine Yama have been sanctioned by a
federal judge for lying, misrepresenting law and facts, and intentionally dragging out a case
involving a school district and a special education student.
U.S. District Court Judge Oliver Wanger fined the law firm, Yama and Bret Harte Union High
School District in Calaveras County $5,000 each.
He also ordered Yama to take 20 hours of ethics courses and Lozano
Smith to conduct ethics training for all of its attorneys and
shareholders.
Lozano Smith is one of the largest education law firms in the state and the main legal
representation for Fresno Unified, Clovis Unified and many other local school districts...
Howard Fulfrost was a shareholder
at Lozano Smith when the firm
billed Bret Harte Union High School
District $500,000 for a case that
could have been settled years
earlier for $8,000.
at Lozano Smith when the firm
billed Bret Harte Union High School
District $500,000 for a case that
could have been settled years
earlier for $8,000.
| Howard Fulfrost: member of the School Attorney Advisory Board LRP's Special Education School Attorneys Conference Jan. 29 - 31, 2009 San Antonio Marriott Rivercenter San Antonio, Texas School Attorney Advisory Board MELINDA BAIRD, Law Office of Melinda Baird, Jacksboro, Tenn. JACK CLARKE, JR., Best, Best & Krieger, Riverside, Calif. HOWARD FULFROST, Fagen Friedman & Fulfrost LLP, Los Angeles ZVI GREISMANN, Montgomery County Board of Education, Rockville, Md. VIOLA LORDI, Wilentz, Goldman & Spitzer P.A., Woodbridge, N.J. KATHLEEN MEHFOUD, Reed Smith LLP, Richmond, Va. GARY RUESCH, Quarles & Brady LLP, Milwaukee, Wis. JIM WALSH, Walsh, Anderson, Brown, Schulze & Aldridge, P. C., Austin, Texas CHARLES WEATHERLY, Weatherly Law Firm, Atlanta, Ga. JULIE WEATHERLY, Resolutions in Special Education, Mobile, Ala. GERALD ZELIN, Drummond Woodsum, Portsmouth, N.H. ..."Once again the conference covered many relevant aspects of special ed for the school attorney. It covered the basics, introduced concepts and provided practical practice pointers for all. Whether you’re a novice to special education or an experienced practitioner, this conference will enlighten you." Fred Compton Roetzel & Andress, Akron, Ohio "This is the most worthwhile conference I've attended. Every single presenter provided specific, helpful advice that I will use in my practice." Karen Haase Harding & Shultz, Lincoln, Neb. Who Should Attend "Registration Criteria "To encourage open dialogue and discussion, participation in this conference is limited. Registrants MUST BE ATTORNEYS who do not currently represent parties with special education interests adverse to school districts." [Maura Larkins' note: What exactly is it that participants WOULDN'T SAY if they knew that someone with opposing interests was present? Would they keep certain illegal tricks and tools of the trade secret? LPR Publications Founded in 1977 by Kenneth Kahn, then a practicing employment law attorney, LRP Publications has been serving business and education professionals for more than three decades. Originally known as Labor Relations Press, the company first published case reporters for the legal profession. As the company expanded into other specialty areas, it became known as LRP Publications. Today, LRP publishes two industry-leading magazines, Human Resource Executive® and Risk & Insurance®, as well as hundreds of newsletters, books, videos and case reporters in the fields of: • human resources • federal employment • workers' compensation • public employment law • disability • bankruptcy • education administration and law Complementing these suites of resources are dedicated Web sites including Title1admin.com, EducationDaily.com®, SpecialEdConnection. com®, cyberFeds.com® and HREOnline.com™. For a complete list of our resources, visit www. shoplrp.com. LRP Publications also provides top-quality training and professional development in national conferences and trade shows, plus an ever-growing offering of live audio conferences and Webinars... |
| Another lawyer made the same jump, but put it a different way: |
Legal Office – To assist the District in its
negotiations with the United Educators of
San Francisco (UESF), Laurie Juengert,
recently switched law firms – from
Lozano Smith to Fagen, Friedman &
Fulfrost. New contract, new firm. Fagen
Friedman & Fulfrost LLP - $40,000 –
General Fund Unrestricted
SA N FR A N C I S C O UN I F I E D SC H O O L DI
S T R I C T
A G E N D A
REGULAR MEETING OF THE BOARD OF
EDUCATION
TUESDAY, FEBRUARY 27, 2007
6:00 P.M.
IRVING G. BREYER BOARD MEETING ROOM
555 FRANKLIN STREET, FIRST FLOOR
SAN FRANCISCO, CALIFORNIA 94102
Board of Education: Mark Sanchez - President Kim-
Shree Maufas Norman Yee – Vice President Hydra
B. Mendoza Jane KimJill WynnsEric Mar, Esq.
Student Delegates to the Board of Education: Diana
Suen Lea Elliott Interim Superintendent of Schools:
Gwen Chan
| Escape from Lozano Smith |
Federal Court sanctions order against Lozano Smith in Moser v. Bret
Harte School District in Fresno (full decision can be found below)
Harte School District in Fresno (full decision can be found below)
| San Diego Education Report |
| SDER |
San Diego
Education Report
Education Report
| SDER |
| SDER |
| SDER |
Elaine Yama
Moser v. Bret Harte Union High School District Sanction
Order
Order to Show Cause for Sanction for Attorney’s Violations
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
ROBERT MOSER,
Plaintiff,
v.
BRET HARTE UNION HIGH SCHOOL DISTRICT,
Defendant.
CIV-F-99-6273 OWW SMS
ORDER RE: SANCTIONS FOR ATTORNEY’S VIOLATIONS OF DUTY OF CANDOR
AND NOT TO IMPEDE, OBSTRUCT, OR TO VEXATIOUSLY MULTIPLY )
PROCEEDINGS
I. INTRODUCTION
This matter is before the court on an Order to Show Cause why sanctions should
not be imposed against attorneys of record Elaine Yama (“Yama”), the law firm of
Lozano, Smith and their client, Bret Harte Unified School District (“District” or
“Defendant”), following their egregious conduct in this appeal from an administrative
hearing.
II. BACKGROUND
The Order to Show Cause issued as the culmination of lengthy and contentious
proceedings involving an appeal from an administrative hearing by a Bret Harte
student, Robert Moser (“Plaintiff”). Plaintiff was a student enrolled at Defendant Bret
Harte Union High School District from 1994 – 1998. Plaintiff alleged that Defendant
denied him a free and appropriate public education (“FAPE”) under the Individuals
With Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400 et seq. See Docket
(“Doc.”) #1. On October 13, 14, 15 and 16, 1998, and January 19, 20, 21, 22, 25
and 26, 1999, an administrative hearing was heard before William Reyes, Hearing
Officer of the California Special Education Hearing Office. Plaintiff appealed the
decision of the Hearing Officer on August 27, 1999. Jurisdiction applied under 20 U.
S.C. § 1415(e)(2)©) and 28 U.S.C. § 1331. See id. at ¶2.
In 2001, Trial de Novo briefs were submitted by both parties. Docs. 20, 25, 28, 33,
34, 35 & 41. On August 20, 2001, Defendant filed a motion to dismiss the complaint
pursuant to rule 41(b) of the Federal Rules of Civil Procedure for failure to comply
with court orders. Doc. 37. Defendant also made numerous evidentiary objections.
At the November 19, 2001, hearing on the motion to dismiss, the court informed the
parties that if they wished to supplement the administrative record they must make a
motion to do so. On November 20, 2001, the motion to dismiss was denied. Doc. 53.
At a scheduling conference on December 11, 2001, the court again reminded the
parties of the proper procedure for supplementing the administrative record and a
schedule was set for motions to supplement the record. A scheduling conference
order issued December 12, 2001, which: 1) acknowledged the administrative record
was finally complete and accurate; 2) required the record be sequentially paginated
and Bates numbered; 3) set dates for the parties to move to supplement the record;
4) ordered each party submit statements of chronological material and relevant
facts and statement of disputed facts or objections to the chronological statements
of the opposing party; and 5) established the briefing deadlines for cross-motions
for summary judgment. See Doc. 55.
The June 14, 2002, Amended Scheduling Order called for any motions to further
supplement the administrative record to be filed by June 24, 2002. No party filed
such a motion, yet Defendant filed a “Further Opposition To Plaintiff’s Motion to
Supplement Evidentiary Record” on July 8, 2002. At this time the parties were
reminded to comply with the Federal Rules of Procedure and were warned that the
case had already been unduly extended over three years as a result of the parties’
inability to follow court orders or basic rules of Federal Civil Procedure.
Cross-motions for summary judgment, statements of chronological facts,
oppositions and reply briefs were filed between June and August, 2002. The
evaluation of the matter was significantly delayed due to both parties’ repeated
incorrect, irrelevant or unsupported citations to the Administrative Record in their
Chronological Statements of Facts and Defendant’s repeated misstatement of the
facts contained in the Administrative Record.
A hearing was held on August 9, 2003. On October 17, 2003, a Memorandum
Decision and Order granting Plaintiff’s motion for summary judgment and denying
Defendant’s motion for summary judgment was filed. On the same day an Order to
Show Cause issued, sua sponte, ordering Ms. Yama, Lozano, Smith and their client,
Bret Harte Unified School District to show cause why they should not be sanctioned
for misrepresenting facts and law, violating their duty of candor, and willfully and
vexatiously multiplying the proceedings, under FRCP Rule 11, 28 U.S.C. § 1927,
and the court’s inherent power.1
Briefs opposing sanctions were filed by Lozano, Smith and Ms. Yama. Briefs
supporting sanctions were filed by Plaintiff. The District did not file any separate
briefs opposing sanctions despite being ordered to show cause. A hearing was held
on January 26, 2004. Ms. Yama, counsel of record, appeared with independent
counsel, James Wilkins. Jerome Behrens of Lozano, Smith appeared on behalf of
the District and Lozano Smith. Maureen Graves appeared on behalf of the Plaintiff.
At the conclusion of the hearing, parties were given additional time to file
supplemental papers. Plaintiff was given permission to submit 15 interrogatories to
Defendant, Bret Harte Unified School District, in order to enable the court to
evaluate the level of the public entity Defendant’s participation in counsel’s
wrongdoing.
II. LEGAL STANDARDS
The power of federal judges to impose sanctions for abuses of process is quite
broad. Gas-A-Tron of Ariz. v. Union Oil Co., 534 F.2d 1322 (9th Cir.), cert. denied
sub nom. Shell Oil Co. V. Gas-A-Tron of Ariz., 429 U.S. 861, 97 S.Ct. 164, 50 L.Ed.
2d 139 (1976). The power to sanction derives from several sources: federal
statutes (including federal procedural rules), Local Rules of Court, and the District
Court’s inherent power. Local Rules of the Eastern District Court provide:
Failure of counsel or of a party to comply with these Rules or with any order of the
Court may be grounds for imposition by the Court of any and all sanctions
authorized by statute or Rule or within the inherent power of the Court.
L.R. 11-110.
1 The Memorandum Decision and Order of October 17, 2003 (Doc. 102) is
incorporated by this reference.
The decision to award sanctions is a matter within the court’s sound discretion. See
Dahl v. City of Huntington Beach, 84 F.3d 363, 367 (9th Cir. 1996); Wages v.
Internal Revenue Service, 915 F.2d 1230, 1235 (9th Cir.), cert. denied, 498 U.S.
1096, 111 S.Ct. 986, 112 L.Ed.2d 1071 (1991); Erickson v. Newmar Corp., 87 F.3d
298, 303 (9th Cir. 1996). “For a sanction to be validly imposed, the conduct in
question must be sanctionable under the authority relied on.” Cunningham v.
County of Los Angeles, 879 F.2d 481, 490 (9th Cir.) (Internal quotations omitted),
cert. denied, 493 U.S. 1035, 110 S.Ct. 757, 107 L.Ed.2d 773 (1990).
A. Rule 11
Federal Rule of Civil Procedure 11 (“Rule 11″) gives the court authority to issue
sanctions against a party whose attorney of record signs a “pleading, written
motion, or other paper” is not well grounded in fact, is not warranted by existing law,
is not made in good faith, or is brought for any improper purpose. Christian v.
Mattel, Inc., 286 F.3d 1118, 1131 (9th Cir. 2002). Imposition of sanctions is not
limited to attorneys, but may be
imposed on parties as well. Rule 11 addresses the problems of frivolous filings and
abuse of judicial procedures as a tool for harassment. Stewart v. American Intel Oil
& Gas Co., 845 F.2d 196, 201 (9th Cir. 1988); Zaldivar v. City of Los Angeles, 780
F.2d 823, 830 (9th Cir. 1986), abrogated on other grounds by Cooter & Gell v.
Hartmarx Corp., 496 U.S. 384 (1990).
The Ninth Circuit has stated:
Under the provisions of Rule 11, when an attorney signs a pleading, he [or she] is
certifying that he [or she] has read it and that to the best of his [or her] knowledge,
information and belief, formed after a reasonable inquiry, it is well grounded in fact
and is warranted by existing law or a good faith argument for the extension,
modification, or reversal of existing law, and that it is not interposed for an improper
purpose. Rule 11 further provides that if the pleading is signed by the attorney in
violation of the rule, the court shall impose . . . an appropriate sanction.
Stewart v. American International Oil & Gas Co., 845 F.2d 196 (9th Cir. 1988).2
Rule 11 creates and imposes on a party or counsel an affirmative duty to
investigate the law and facts before filing. Rachel v. Banana Republic, Inc., 831 F.
2d 1503, 1508 (9th Cir. 1987) and further obliges an attorney to dissuade a client
from pursuing specious claims, thereby avoiding possible sanctions by the court, as
well as unnecessary costs of litigating a worthless claim. Mohammed v. Union
Carbide Corp., 606 F.Supp. 252 (E.D. Mich. 1985).
Whether to impose sanctions is determined by the reasonableness of inquiry into
the law and facts, not the good or bad faith of the signatory. G.C. & K.B.
Investments v. Wilson, 326 F.3d 1096, 1109 (9th Cir. 2003); c.f. Mars Steel Corp. V.
Continental Bank N.A., 880 F.2d 928, 932 (7th Cir. 1989) (“[A] paper filed in the
best of faith, by a lawyer convinced of the justice of his client’s cause, is
sanctionable if counsel neglected to make “reasonable inquiry” beforehand.”). A
pleading, motion or other paper well grounded in fact and law cannot be sanctioned
regardless of subjective intent. Zaldivar, supra. Conversely, a party is responsible
for innocent, good faith mistakes of law or for carelessness of counsel, because
reasonably inquiry would reveal a mistake, and counsel who is careless has not
made reasonable inquiry. Lloyd v. Schlag, 884 F.2d 409, 412 (9th Cir. 1989).
2 The mandatory nature of sanctions under Rule 11 (“shall”) was changed after this
case, under the 1993 amendments to the rule. [CITE] A court may impose sanctions
under the rule for a violation but is no longer required to do so.
A filing is frivolous under Rule 11 if it is unreasonable when viewed from the
perspective of a competent attorney admitted to practice before the district court. G.
C. & K.B. Investments, 326 F.3d 1096, 1109; In re Grantham Bros., 922 F.2d 1438,
1442 (9th Cir.), Zaldivar, 780 F.2d at 831. “A district court confronted with solid
evidence of a pleading’s frivolousness may in circumstances that warrant it infer that
it was filed for an improper purpose.” Townsend v. Holman Consulting Corp., 929 F.
3d 1358, 1365 (9th Cir. 1990). Sanctions under Rule 11 are not limited to instances
in which a pleading as a whole is frivolous, or of a harassing nature. Rather,
sanctions may be imposed for improper or unwarranted allegations even though at
least one non- frivolous claim has been pled if an attorney has not conducted a
“reasonable inquiry” under the circumstances of a case. Id. at 1362-65. Monetary
sanctions may not be awarded against a represented party for a violation of Rule 11
subdivision (b)(2).
B. Local Rules of the Eastern District of California
In addition to L.R. 11-110 cited above, the Local Court Rules of the Eastern District
of California provide:
In the event any attorney subject to these Rules engages in conduct which may
warrant discipline or other sanctions, any Judge . . . may initiate proceedings for
contempt under 18 U.S.C. § 401 or Fed. R. Crim. P. 42, or may, after reasonable
notice and opportunity to show cause to the contrary, take any other appropriate
disciplinary action against the attorney. In addition to or in lieu of the foregoing, the
Judge . . . may refer the matter to the disciplinary body of any Court before which
the attorney has been admitted to practice.
L.R. 83-184(a).3
Neither the Local Rules nor the Federal Rules provide clear definition of “other
appropriate disciplinary action,” for
attorney conduct that does not warrant criminal contempt. Nonetheless, district
judges have an “arsenal of sanctions” they can impose for unethical behavior,
Erickson v. Newmar Corp., 87 F.3d at 303, including monetary sanctions, contempt,
dismissal and disqualification of counsel. Id. The Rules of Professional Conduct and
State Bar Rules of California may also be consulted. See L.R. 83-180(e) (adopting
California Rules of Professional Conduct and decisions of any Court applicable
thereto as standards of professional conduct in Eastern District Courts); see also, e.
g., Frazier v. Heebe, 482 U.S. 641, 645 (1987) (district courts have clear statutory
authority to promulgate rules governing the admission and conduct of attorneys who
appear before them).
3 The criminal contempt power under 18 U.S.C. § 401 authorizes punishment by
fine or imprisonment, at the court’s discretion, for contempt of its authority, and for
misbehavior of any person in the court’s presence “or so near thereto as to obstruct
the administration of justice.” Rule 42 punishes as criminal contempt conduct “the
judge saw or heard . . . or [ ] committed in the actual presence of the court.” Fed. R.
Crim. P. 42(b).
Under ABA Model Rules of Professional Conduct, “[a] lawyer shall not knowingly: (1)
make a false statement of fact or law to a tribunal or fail to correct a false statement
of material fact or law previously made to a tribunal by the lawyer; (2) fail to disclose
to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be
directly adverse to the position of the client and not disclosed by opposing counsel;
or
(3) offer evidence that the lawyer knows to be false.” American Bar Association
Model Rules of Professional Conduct, Rule 3.3 (5th Ed. 2003). The consequences
of violating these rules depend upon whether the violation was intentional and/or
systematic:
6.11 Disbarment is generally appropriate when a lawyer, with the intent to deceive
the court, makes a false statement, submits a false document, or improperly
withholds material information, and causes serious or potentially serious injury to a
party, or causes a significant or potentially significant adverse effect on the legal
proceeding.
6.12 Suspension is generally appropriate when a lawyer knows that false
statements or documents are being submitted to the court or that material
information is improperly being withheld, and takes no remedial action, and causes
injury or potential injury to a party to the legal proceeding, or causes an adverse or
potentially adverse effect on the legal proceeding.
6.13 Reprimand is generally appropriate when a lawyer is negligent either in
determining whether statements or documents are false or in taking remedial action
when material information is being withheld, and causes injury or potential injury to a
party to the legal proceeding, or causes an adverse or potentially adverse effect on
the legal proceeding.
6.14 Admonition is generally appropriate when a lawyer engages in an isolated
instance of neglect in determining whether submitted statements or documents are
false or in failing to disclose material information upon learning of its falsity, and
causes little or no actual or potential injury to a party, or causes little or no adverse
or potentially adverse effect on the legal proceeding.
American Bar Association Standards for Imposing Lawyer Sanctions, Standard 6.1
(1992).
Under California law, an attorney may only use methods “as are consistent with
truth, and never to seek to mislead the judge or any judicial officer by an artifice or
false statement of fact or law.” Cal. Bus. & Prof. Code § 6068(d). “In presenting a
matter to a tribunal, a member: (A) Shall employ, for the purpose of maintaining the
causes confided to the member such means only as are consistent with truth; (B)
Shall not seek to mislead the judge, judicial officer, or jury by an artifice or false
statement of face or law; ©) Shall not intentionally misquote to a tribunal the
language of a book, statute, or decision; (D) Shall not, knowing its invalidity, cite as
authority a decision that has been repealed or declared unconstitutional.” California
Rules of Professional Conduct, Rule 5-200 (1992).
C. 28 U.S.C. § 1927
Section 1927, Title 28 United States Code, provides: “Any attorney . . . who so
multiplies the proceedings in any case unreasonably and vexatiously may be
required by the court to satisfy personally the excess costs, expenses, and
attorneys’ fees reasonably incurred because of such conduct.”
Section 1927 “applies only to unnecessary filings and tactics once a lawsuit has
begun.” In re Keegan Management Co. Sec. Litig. (Keegan Management Company
v. Moore), 78 F.3d 431, 435 (9th Cir. 1995). For sanctions to apply under 1927, the
court must make a determination of recklessness. See Fink v. Gomez, 239 F.3d 989
(9th Cir. 2001) (“[R]ecklessness suffices for § 1927, but bad faith is required for
sanctions under the court’s inherent power.”); see also, B.K.B. v. Maui Police Dept.,
276 F.3d 1091, 1107 (2002). Section 1927:
[o]nly authorizes the taxing of excess costs arising from an attorney’s
unreasonable and vexatious conduct; it does not authorize imposition of sanctions
in excess of costs reasonably incurred because of such conduct.
Similarly, cases that have considered the district court’s inherent power to sanction
attorneys for litigating in bad faith have related such sanctions to the amount of fees
incurred by the opposing party, and have not based sanctions on increased costs
experienced by the court.
Blodgett, 709 F.2d at 610-11 (citations omitted). Section 1927 sanctions cannot be
imposed on a non-attorney. Zaldivar, 780 F.2d at p. 831.
D. Inherent Authority
While the district court should issue sanctions under a rule or statute if possible,
Lockary v. Kayfetz, 974 F.2d 1166, 1170 (9th Cir. 1992); it is not so limited and may
rely on its inherent powers to sanction misconduct. Id.; In re Akros Installations, Inc.,
834 F.2d 1526, 1532 (9th Cir. 1987).
A sanction imposed under the court’s inherent power requires a specific finding of
bad faith. Roadway Express, 447 U.S. 752, 767 (1980); Primus Auto Fin. Services v.
Batarse, 115 F.3d 644, 648 (9th Cir. 1997); Yagman v. Republic Ins., 987 F.2d 622,
628 (9th Cir. 1993) (In sanctioning counsel, “[c]ourts may not invoke [inherent]
powers without a specific finding of bad faith”); Zambrano v. City of Tustin, 885 F.2d
1473, 1478 (9th Cir. 1989) (“To insure that restraint is properly exercised, we have
routinely insisted upon a finding of bad faith before sanctions may be imposed
under the court’s inherent power.”) Bad faith “does not require that the legal and
factual basis for the action prove totally frivolous; where a litigant is substantially
motivated by vindictiveness, obduracy, or mala fides, the assertion of a colorable
claim will not bar assessment of attorneys’ fees.” Mark Ind., Ltd. v. Sea Captain’s
Choice, Inc., 50 F.3d 730, 732 (9th Cir. 1995) (internal quotation marks and
citations omitted).
Under the court’s inherent authority, sanctions may be imposed on an attorney or a
party to the suit. See Roadway Express, 447 U.S. at 766.
III. ANALYSIS
Lozano, Smith’s, Ms. Yama’s, and the District’s actions in these proceedings have
greatly increased the work of Plaintiff’s attorney and the Court itself, as well as
delayed the just resolution of the case. The objectionable acts fall into four general
categories: (1) bad faith, frivolous objections, (2) misstatement and
mischaracterization of facts contained in the administrative record, (3)
misstatements of the applicable law, and (4) intentional obstruction of the speedy
and just resolution
of the dispute. Taken as a whole, they show that Defendant and its counsel made a
concerted effort to distort, if not outright deceive, the court when shaping the court’s
view of both the record and applicable law in the case. By consistently presenting
untruths and half-truths, Defendant and its counsel obstructed the fair, just, and
expeditious resolution of the proceedings. These actions were undertaken in
violation of, and with reckless disregard for counsel’s duties to the court. When
evaluated as a whole, the actions of counsel and the District amount to bad faith
and are sanctionable.
A. Examples of Counsel’s Actions
The Order to Show Cause detailed some, but not all, of the many frivolous
objections and misstatements of fact contained in Defendant’s Motion for Summary
Judgment briefs.4 See Doc. 101, October 17, 2003, Order to Show Cause for
Sanctions. Counsel has acknowledged these errors, but claims they are innocent
mistakes or misunderstandings. The District has not responded in any way.
1. Frivolous Objections
(1) The District “disputes” Plaintiff’s statement that “Robert enrolled at Bret Harte
Union High School District for 9th Grade” in August 1994. Defendant refuses to
admit this “undisputed fact” because, “Plaintiff fails to cite administrative record.”
4 Many of these same misstatements are contained in Defendant’s Trial De Novo
brief as well. See Docket No. 25.
Regardless of Plaintiff’s failure to cite the administrative record, it is indisputable
that Robert enrolled at Bret Harte for 9th grade.
(2) Plaintiff testified that an accommodation made by Ms. Nanik, “actually increased
Robert’s workload by shifting from multiple choice to writing assignments.” UF 96,
Doc. 78. Defendant objects to Plaintiff’s undisputed fact: “argument and conclusion.
Misstates testimony. J. Moser did not testify that Plaintiff’s workload was ‘shifting
from multiple-choice to writing assignments.’”
Defendant’s objection is frivolous. Mrs. Moser testified exactly to that effect: Q
[Graves]: “when Ms. Nanik decided to have him do something else, other than
taking the test at home, did this involve more writing on Robert’s part?” A[Mrs.
Moser]: “Yes.” AR 1882:17-20. A[Moser]: “And then, they wanted to have Robert,
instead of taking the test home, to read the whole chapter, which is fine. That’s what
he did. But then, to answer all of those questions on the back, which was more than
just taking a test, you know, ‘because you have like an A or B. It’s A, B, or C choice.
So, it was a lot easier for him to do that. It took a lot more time and energy, which he
really didn’t have, to be doing numerous questions and answering all that long
stuff.” AR 1882:4-11.
(3) Defendant’s objection to undisputed fact No. 98 once again misstates the
obvious. The document speaks for itself. Defendant complains “plaintiff’s references
to ‘long-standing frustration’ and ‘depression’ and ‘hired an advocate’ are
statements not referenced within the document. The document clearly references
Robert’s frustration and depression as well as Mrs. Moser’s frustration. The
document does not mention the hiring of an advocate.
The document is a letter sent by Mrs. Moser on June 17, 1997, to Superintendent
Wilamek (received June 18, 1997), Ronald Lewis, Jan Edwards, Principal of Bret
Harte High School, and the Bret Harte School Board. Mrs. Moser’s letter specifically
states Robert was depressed and refusing to participate in class due to this
depression, and his frustration with his teachers. AR 3335. Mrs. Moser expressed
her frustration with the school directly: “as far as I can tell, the teachers and
administration have done absolutely nothing they have been asked repeatedly to
do, nor have they done anything to help my son.” Mrs. Moser concludes:
Just for your information, Robert is not a ‘lazy’ student, just trying to get out of
work. In fact, in spite of his illness, he has gone out of his way to take entry tests in
math and English for Columbie College, and, he has passed both. He is going for
surgery Thursday and even though he should be laid up for 14 days (not to mention
8 weeks of not being able to move his torso), he is still taking classes.
To say I am disgusted with the treatment we have received is definitely an
understatement. We had to change schools, move our home, and have had
continuous conflict with teachers and administration [sic] who are not willing to go a
little out of their way to help a student who is truly ill! Why weren’t we told from the
beginning that, because of Robert’s illness, he had a right to be transported to
school? Why weren’t we told about the ‘504′ plan? Why are the teachers and
administration now so difficult and unwilling to cooperate?
I am asking [for] your help. My son and family have been through enough. Please
intervene and give my son the help he needs and is entitled to his last two years of
high school. If we do not receive a satisfactory response and solution by June 30, I
will file a complaint with the O.C.R. [Office of Civil Rights] and the appropriate State
Department.
AR 3334-3336; 3337-3339.
(4) A diagnosis of chronic fatigue syndrome and depression is written on a doctor’s
note dated 9/12/97. Plaintiff contends this note was forwarded to the District. UF
97a, Doc. 78. Defendant objects to whether or not this diagnosis was actually
forwarded to the school: “argument and conclusion. Misstates evidence. Fails to cite
record.” Id.
Defendant makes no statement as to whether or not the District actually received
the doctor’s note.
Defendant’s objection is inexplicable. The 504 accommodation plan states explicitly,
“Robert will meet with Mrs. Haskell weekly on Fridays from 10:00 to 10:30 a.m. They
will confer on his progress, and discuss any academic difficulties he may be having.”
(5) Defendant objects to Plaintiff’s undisputed fact #15, which states: “In eighth
grade, without an assessment or IEP, it was noted on a parent conference report
that Robert would receive “special ed assistance from 1:15-2:00 in Ms. Johnson’s
room.” (Page 3783). Defendant’s objection, “Misstates evidence. Page 4368 IEP
dated 1/13/93 specifically states that ‘although student does not qualify for special
education services, he will participate in after school study hall three times a week
for homework.”
Defendant’s objection is unintelligible in context and meritless. The cited form in
Plaintiff’s undisputed fact, AR 3783, states exactly what Plaintiff contends it states:
“Vallecito Union School District Parent Conference Report” dated 12/93 states “4.
Special ed assistance from 1:15-2:00 in Ms. Johnson’s room.” The form was
completed prior to the Triennial
IEP review where Robert was exited from special education. The IEP form cited by
Defendant, dated one month later, on 1/13/93, “Formal tests do not suggest the
presence of a processing disorder; does not qualify for special education; Robert
will participate in after school study hall 3x/wk for homework.”
The objection obstructs the court’s undisputed fact finding process.
(6) Defendant objects to Plaintiff’s undisputed fact #16, “Robert saw a physician
who diagnosed chronic fatigue syndrome.” (Page 4259). Defendant’s objection:
“Disputed. Page 4259 is a doctor’s notes [sic] which is signed by the doctor on 6-21-
95. Also, see Plaintiff’s Fact No. 58, which references page 3383 (the same
document as 4259), and indicates the appropriate date of 6-21-95.
Defendant’s objection is confusing at best, misleading at worst. The documents
cited (AR 4259 and AR 3383) both have 8/5/95 as the date “was seen at this office
on” and the diagnosis “Chronic Fatigue Syndrome.” Under “other” it states, “unable
to participate in PE from ‘95 through ‘96.” The document is signed by the physician,
Dr. Lake, on 6/21/95. Plaintiff’s Undisputed fact lists 8/94 as the date Robert saw
the physician, who diagnosed CFS. Both copies of the document support this
statement. The fact that the doctor signed the note in June of 1995, to provide an
excuse from P.E. has nothing to do with the fact that Robert was seen in August of
1994 and diagnosed with Chronic Fatigue Syndrome at that time, as indicated on
both copies of the doctor’s note. Defendant’s objection to the fact as “disputed” is
obstructive, the document speaks for itself;
Defendant’s reference to when the note was cited is a red herring.
(7) The District “disputes” Plaintiff’s statement of undisputed fact #21, Doc. 78, that
“an assessment was conducted” on 9/10/94. Defendant refuses to admit this
“undisputed fact” because, “Plaintiff fails to cite administrative record.”
It was unnecessary for Plaintiff to cite the administrative record because it is
indisputable that an assessment was conducted in Sept-Oct of 1994 and that fact
was best known to the District. This is a bad faith, unjustified objection.
(8) Defendant objects to part of Plaintiff’s undisputed fact #27 which states: “9-10-
94 The ‘concentration, attention span, memory problems of a diverse kind’ and
diffuse processing problems common in narcolepsy were not explored.” (Page
745/line 7 – page 1746/line 21). Defendant’s objection: “argument and conclusion:
misstates testimony of Dr. Patterson, in which there is no reference to ‘The
concentration, . . . were not explored.’”
Again, Defendant’s objection is totally without basis. The cited testimony explicitly
includes the sentence referenced by Defendant:
Graves: I want to um, I’m not sure whether you said what you meant, so I want to
make sure that whether, what you meant. I think you said people with narcolepsy
often have problems with memory and difficulties and things [unintelligible]. My
question was about head injury -
Dr. Patterson: – yeah
Graves: – is that what you are talking about -
Patterson: – and head injuries have the same characteristics. But I was about to
say, and in Robert’s case, uh, he was noted in, in an early assessment as having a
visual memory problem. And um, they really didn’t do a lot of definitive testing from
memory in, in any of the assessments. But it, it is not unusual in kids with head
injuries to find, attention-span difficulties, concentration difficulties, uh, memory
types of difficulties. And those are not memory difficulties that are necessarily
showing up on Wechsler Scales. In other words, you need definitive tests for that,
sometimes what are called neuropsychological tests . . . but no visual testing for
visual memory per se is, was, was done. No -
Graves: – [unintelligible] California Learning Test is an auditory memory?
Patterson: Yeah, auditory memory, yes that’s correct. And so, in, in this particular
case, that would be consistent with brain injury and we’ve never had a neuro-psych
battery administered and we’ve never even had a neuro-psych screen
administered, so we don’t really know but that’s not a typical independence of the
narcolepsy. But many of the same things are found in narcoleptics; concentration,
attention span, memory problems of a diverse kind and sometimes there’s this
deffuse [sic] problem where they have processing problems but it’s hard to put a
definitive label on what it is. It’s a deffuse [sic] neuro-cognitive or neuro-
developmental delay.
(9) Defendant objects to Plaintiff’s undisputed fact #30 which states: “10/25/97
doctor care e-mails, the special education director, testified that ‘it’s very difficult to
tell’ from this document whether Robert was being found eligible for special
education (page 48/line 14 – page 51/210). Defendant’s objection: “Misstates
testimony as cited. K. Mill’s testimony states: ‘it looks like he does not [qualify]
because he’s going to participate in a regular program on a full-time basis.’ See K.
Mills’ testimony, page 48:20-21: ‘I don’t see that he’s determined eligible on this
document.’ See K. Mills’ testimony, page 49:1-17; ‘it doesn’t discuss discrepancy . . .
it seems to infer that its lower than expected. But it doesn’t indicate a discrepancy.’
See K. Mills’ testimony, page 50:3-9[.]”
Defendant’s objection is frivolous. The first two lines of the cited testimony, AR 48:
14-16, explicitly state:
Graves: Okay. Is it your understanding in this IEP meeting Robert was found
eligible or ineligible for Special Education services?
Mills: It’s very difficult to tell.
(10) In Defendant’s objection to Plaintiff’s undisputed fact #31, Defendant restates
the untrue statement that “Robert had not yet been diagnosed.”
The citation provided by Plaintiff as his proposed undisputed fact #31 objected to by
Defendant is AR 4273, Defendant’s IEP report, dated 10/25/94, which states, “Dr.
says he now has chronic fatigue syndrome.” See additional discussion regarding
Ingrid Olson Miller’s testimony that she had the diagnosis as of the IEP meeting
again via her conversation with Robert’s doctor in November ‘94, supra, at p. 11
(N.). The same can be said for Defendant’s frivolous objections to Plaintiff’s
undisputed facts #32 and #33.
These objections deterred the finding of genuinely undisputed facts.
(11) Defendant objects to Plaintiff’s undisputed fact #38, which states, “10/25/94
Robert’s mother was understandably confused by the October 1994 process,
seeing Robert as ‘semiqualified,’ but not ‘quite,’ and thinking the plan was to ‘see
what happened.’ (Page 1865/line 17-27). Defendant’s objection: “argument and
conclusion. Misstates testimony of J. Moser.”
Defendant’s objection is frivolous. Mrs. Moser’s testimony says exactly what is
quoted and cited:
Moser: Uh, yeah, they did, they tested him and uh, he semi-qualified, he kind of
qualified, but they didn’t think he, they didn’t think he quite qualified. I’m not really
sure, other than that I wanted to get whatever service, like he had back when, uh, in
Oak Grove, . . . so, I wanted some kind of service like that, but they said he really
didn’t qualify, so, we just had the [sic], see what happened.
(12) Bret Harte “disputes” Plaintiff’s statement that “Robert was a regular education
student at Arnold High School, a very small and remotely located high school, which
featured behaviorally challenged students and no special education staff.”
Defendant refuses to admit this “undisputed fact” because, “Plaintiff fails to cite
administrative record.”
Regardless of Plaintiff’s failure to cite the administrative record, it is indisputable
that Robert enrolled at Arnold High School his second semester and that Arnold was
a “continuation” type high school for troubled students and had no special
education staff.
The above 13 citations are only a few examples of Defendant’s and its attorneys’
frivolous, vexatious, and obstructive objections to Plaintiff’s statement of undisputed
facts. Defendant and its attorneys continued to make similar frivolous objections
throughout their “amended response and opposition to Plaintiff’s chronological
statement of facts.” Doc. 78. The overall effect of Defendant’s and counsel’s
conduct was to impede and meritlessly increase the work of the Court in the truth
ascertainment process.
2. Misstatement and Mischaracterization of Facts Contained in the Administrative
Record
(1) Defendant contends “Mrs. Moser only wanted transportation, tracking of
progress and some counseling.” UF 48 & 50, Doc. 72. Defendant contends that “At
no time did Mrs. Moser indicate to Mr. Smith that she wanted more
accommodations.” UF 57, Doc. 72.
Mr. Smith’s testimony contradicts Defendant’s claim.5 Mr. Smith testified he believed
the accommodations were sufficient, but, in answer to a question, acknowledged
that he knew Mrs. Moser would not “feel that [Robert] was getting . . . enough
accommodations.” AR 1458:9-19.
(2) Defendant alleges Ms. Pape-Reynoso, Plaintiff’s sophomore learning director,
“communicated with Plaintiff’s teachers about his special physical health needs and
the accommodations required as to assignments.” UF 53, Doc. 72.
Ms. Pape-Reynoso’s testimony contradicts Defendant’s claim:
Q: About how often would you say you . . . spent working with him [Robert] through
the course of the year?
A: I didn’t see Robert very often. Typically, it was a phone call from home
requesting work because he was out and it was coordinating with teachers.
AR 917: 16-22.
Q: Do you recall being . . . given anything to read about Chronic Fatigue
Syndrome?
A: At the . . . student study team meeting, Sheila Silcox did . . . share information . .
. and there was certainly a long discussion . . . in terms of how that would play out.
And, and what kind of support he would need.
Q: . . . And, was anyone going to come out of that meeting and share this
information with Robert’s regular education teachers to your knowledge?
A: Someone probably was, I can’t tell you who that person was. It wasn’t me.
Q: Did teachers talk to you about the Chronic Fatigue Syndrome diagnosis during
Robert’s sophomore year?
A: Usually the contact had more to do with, ‘where is he?’ ‘Here’s the work for him.’
‘Mom said she was coming to get the work.’ ‘She didn’t come.’ ‘Where is it?’ and
those kinds of things.
AR 920:8-26, 921:1-4.
5 Mr. Smith is a school counselor for Defendant. 22
(3) Defendant alleges the school counselor, Mr. Smith, met with Robert “more than
a couple of times a month.” Doc. 72 ¶54 at 16.
Mr. Smith’s testimony shows this is a misrepresentation. Mr. Smith ultimately testified
that he met with Robert several times, “probably not more than –- umm — a couple
of times a month.” AR 1450:14-15; Doc. 72 ¶54 at 16. Mr. Smith testified that Robert
“would never initiate” a meeting and that Mr. Smith himself initiated meetings with
Robert “a couple times a semester. But I can’t remember exactly.” AR 1450:14-26;
Doc. 72 ¶54 at 16.6
(4) According to Defendant, “Mr. Smith, the school counselor, and the learning
director, Saundra Wimberly, tracked Plaintiff’s progress [in 11th grade] . . . Wimberly
testified that Plaintiff would have been able to get an ‘A’ if all his ‘modified
assignments’ had been turned in and judged on their own merit.” Doc. 72 ¶¶71-72
at 20 (disputed) citing Wimberly, AR 133:11-24; Smith AR 1427:18-21; Evaluation
Reports, AR 4205-4209.
These assertions are contradicted by the record. Learning Director Wimberly
testified that her first contact with Robert was at the end of 11th grade, in May-June,
when she mailed out an academic probation letter. AR 133:12-26. Ms. Wimberly
testified she had no knowledge at that time about Robert’s CFS or why Robert failed
two classes and that she “probably” had no further contact with Robert “until the
following year.” AR 134:4-135:2.
6 This blatant misstatement first appeared in Defendant’s Trial De Novo Brief and
was specifically pointed out to Defendant by Plaintiff in his Reply Brief. See Doc. 25
and 28. Ms. Yama’s explanation that this was merely a “mistake,” repeated after
having it specifically pointed out to her, is untenable.
Regarding grading, Ms. Wimberly’s testimony is cited incompletely which creates a
false impression. Her complete testimony shows she really did not know how Robert
was graded:
A: . . . and my understanding was that if Robert . . . was assigned an essay, for
example, at the time, you know, there were no time constraints on it as to due date,
then it would be judged on its own merit and would be possible to earn an A on that
assignment and because he was doing lesser work than the other students, my
understanding was that he would still be able to earn an A based on the number of
assignments that he completed and the quality of the assignments.
Q: Do you recall any explicit discussions of this question of how the grading will
work before yesterday?
A: No, I don’t. What I remember is that . . . though it was never expressed directly,
that the quality of the work is what counted.
Q: Do you recall . . . do you know whether in the final calculation of grades in each
class, were teachers looking at what percentage of the general assignments Robert
had completed, or were they looking at what percentage of his assignments he
completed, or do you know?
A: In some cases, I don’t know. In some cases, I do . . . .
AR 393:3-25, 394:1-2.
Q: And what about the other teachers? Do you know how they were handling the
situation?
A: The best that I can tell you is that I know that they eliminated assignments, so I
made the assumption that they were grading only on the material that he was
assigned.
Mr. Smith’s testimony does not support Defendant’s contention that Mr. Smith
“tracked Plaintiff’s progress” during Robert’s 11th grade year:
A: 97/98 [Robert’s 12th grade] I would have been off completely, 96/97 [Robert’s
11th grade] I was on partial . . . time – I think it was 50 percent . . . I was only her a
certain number of hours a week and I was working mornings . . . and I was seeing
only a small percentage of the typical load that I had.
Q: And the year before that [Robert’s 10th grade, 1996/1997], were you also on
some kind of [unintelligible]?
AR 1427:2-17.
The cite given by Defendant’s attorneys to support Defendant’s contention that Mr.
Smith tracked Robert’s progress during his 11th grade year, actually discusses
Robert’s 10th grade year:
Q: And from 1994 until the end of the 1997 spring semester, did you have the
same position throughout that time?
A: [ ] as far as my counseling responsibilities, pretty much. [] Full-time counseling
and, [], I had some administrative responsibilities (unintelligible) extra duty things
and nighttime things, and all the things that we get to do that are so much fun. [ ] To
help manage lively, young people.
AR 1427:18-24.
(5) The district argues “Section 504 accommodations were provided to Plaintiff
[prior to 12th grade]. Although they were written down and implemented for the past
several years, they were not ever written on a formal 504 Service Plan.” UF 102,
Doc. 72.
The District’s argument is directly contradicted by the evidence it cites in the record;
Superintendent Wilamek did not testify that accommodations were “written down and
implemented for several years.” Superintendent Wilamek testified:
[I]t was my understanding at the time I wrote this letter, that some accommodations
had been made for him. I wasn’t sure whether a complete 504 plan had been written
since the person who was employed in the district was on leave of absence from the
district, so I don’t know what had taken place, and I couldn’t find a formalized 504
plan, because usually there’s a copy of them in my office. So I didn’t find one . . . . I
knew that we made accommodations as far as graduation requirements and
transportation, but I didn’t know what else had been done except that I do recall
having a conversation with a counselor asking to make sure that accommodations
were made in the classroom, etc. . . . but since I couldn’t find [a 504 plan], I decided
we’re going to do it again and do it by the book.
AR 308:1-18.
(6) Defendant states Plaintiff’s English teacher, Vicki Oneto, “provided many
accommodations, including . . . tape recording of answers . . . .” Doc. 72, UF 136.
Ms. Oneto testified:
Q [Stephens]: What kind of adjustments did you make? A [Oneto]: . . . One time he
made a tape recording of [ ] identifications.
(7) Defendant contends “the IEP team met to discuss Plaintiff’s individual transition
plan.” Doc. 72, UF 145 citing ITP plan, AR 4031-4035.
The IEP team and the ITP meeting participants were different. The ITP meeting did
not include Dr. Trotter (school psychologist), Deborah Wright (Robert’s advocate),
any regular education teacher, nor any administrator. The ITP form shows the
following five people in attendance (via their signatures): Robert Moser, Patty
Haskell (resource specialist); Glenda Kinnear (Vocational Tech), Mrs. Moser, and
Sandra Wimberly (Learning Director). AR 4033; AR 2933. By comparison, the
October 6, 1997, IEP team meeting included: Mrs. Moser, Dr. Trotter (School
Psychologist), Mr. Wilamek (Administrator/Superintendent), Mr. Randall (Regular
Education Teacher), Dr. Mills (District Director
of Special Ed.), Ms. Haskell (Resource Specialist), Ms. Wimberly (learning Director)
and Ms. Wright (Robert’s Advocate). AR 4084. The IEP team did not meet to
discuss Robert’s transition plan. The October 6 IEP form puts off discussion of
Robert’s transition until two months later. See AR 4083.
(8) Defendant contends Glenda Kinnea, Vocational Technician, “met with Plaintiff
one hour to 45 minutes one time per week to discuss his interests, refer to
department of rehabilitation, and obtain work experience.” Doc. 72 UF 147 citing
Kinnear AR 600:23-27; 601:1-6; 604:14; 605:23-27; 606:1-6; 608:1-10.
Defendant misrepresents its own witnesses’ testimony:
Q [Graves]: Can you describe your involvement with Robert Moser?
A [ Kinnear]: I didn’t have a lot of involvement with Robert. I was brought into an
IEP meeting for him and, I think, it was January. I’d have to check my records. . . . I
spent, I would say from January of 1997 until he graduated maybe a total of [ ] an
hour and 45 minutes with him. And that includes what’s called an intake meeting with
the department of rehabilitation counselor and an exit meeting with the department
of rehabilitation counselor.
AR 600:23-27, 601:1-3 (emphasis added).
(9) Defendant asserts that “on January 13, 1998, the IEP team met to add two
periods a day to Plaintiff’s schedule for study skills to help with assignments.” Doc.
72 UF 159 (disputed).
There is no record of a January 1998 IEP team meeting to address Robert’s
schedule. The IEP addendum, AR 4001, is dated 1/13/98. The IEP addendum form
states, “Considered a part of the IEP written on ‘10/6/97.’” AR 4001 (10/6/97 is filled
in). The following changes are described on the form, “add two periods a day, 48
minutes a period, five days a week for study skills to Robert’s schedule. This
change will begin at semester 10/98. Continue with goals from the IEP 10/6/97.” AR
4001. The addendum is signed by Mrs. Moser. Ms. Wimberly (listed as
“administrator”) signed the addendum on 1/16/98. Ms. Haskell signed the
addendum on 1/13/98. Ms. Oneto signed the addendum and did not include a date.
See AR 4001. Three school officials signed this form, not the entire IEP team. The
IEP team which met May 28, 1998, consisted of: Mrs. Moser, Robert Moser,
Superintendent Wilamek, Mr. Randall (math teacher), Ms. Haskell (Resource
Specialist), Scott Black (Department of Rehabilitation), Nancy Stephens (District’s
Attorney), Ms. Wimberly (Learning Director), Ms. Graves (Plaintiff’s attorney), Sonya
Bach (nurse), and Dr. Mills (District’s Special Education Director). Mrs. Moser
testified that the schedule change did not occur through an IEP meeting, instead
she “met with Patti [Haskell] in . . . the classroom.” AR 1910:6-12. Ms. Haskell’s
handwritten notes indicate that the schedule change was made unilaterally: “mom
asked about an hr a week. I said the IEP was 30 minutes a week and we would
change that to 1 hr a day [.] [illegible] mom about addendum to change to 48
minutes a day five x a week[, mom] wants update on classes. Sent home addendum
for signature.” AR 3998.
(10) An IEP “exit meeting” was convened on May 28, 1998. Doc. 72 UF 175.
Defendant claims the IEP team determined Plaintiff had met all IEP goals and
objectives. Doc. 72 UF 175.
Page three (of five) of the 5/28/98 “exit” IEP report contains a copy of the 10/6/97
IEP plan “goals and objectives.” Handwritten notes, completed by Patty Haskell,
show Robert had not met 3 of the 5 objectives listed under the “study skills” goal
section. AR 3834. However, the very next page (#4 of 5 in 5/28/98 IEP report), a
blank version of the 10/6/97 “goals and objectives” page has the sentence “district
believes goals and objectives have been met” scrawled across the page. AR 3835.
At best, Defendant misstates the record by only including one of two contradictory
sections of the exit IEP report.
(11) Defendant alleges Plaintiff provided a diagnosis of narcolepsy “after
graduation.” Doc. 72 at ¶186.
The District had notice of the narcolepsy diagnosis on May 28, 1998, as noted on
the IEP “health update” dated May 28, 1998. AR 2779: “Health concerns:
narcolepsy, recently diagnosed – to be confirmed;” signed by school nurse Sonia
Bach.
(12) Defendant’s Undisputed Fact #7 states, “On April 19, 1989, an IEP team
determined Plaintiff was eligible for special education services by a resource
specialist for 1 hour per week through the 5th grade.” (Emphasis added). IEP pp.
4395-4397; IEP May 1991, pp. 4387-4394.
The IEP at AR 4394 specifically states Robert is to see the resource specialist “up
to 60 min daily,” not once per week.
(13) Defendant’s Undisputed Fact #8 states, “In 6th grade, Plaintiff’s services were
reduced to 45 minutes” citing IEP, May 1992, pp. 4379-4381.
AR 4379 states RSP (Resource Services) beginning May 28, 1992, ending January
1993 “one 45 min session 5x each week in written language.”
(14) Defendant’s Undisputed Fact #29 states, “During this IEP meeting, Mrs. Moser
stated that Plaintiff’s physician was considering a diagnoses of chronic fatigue
syndrome. Nurse was to communicate with doctor regarding physical condition,”
citing IEP 10/25/94, 4273; Olsen-Miller 737:17-25; 738:9-11; Harrison 1293:12-13;
Sylcox 854:15-17; Olsen-Miller Notes, 3825-3826. The gist of this assertion was that
no diagnosis of chronic fatigue syndrome had been made as of the October 1994
IEP meeting.
Defendant’s own 1994 IEP report, written evidence and hearing testimony contradict
its claim. The IEP states: “Robert has a history of mono – Dr. Says he now has
Chronic Fatigue Syndrome – nurse will communicate [with] Dr. re: his physical
condition.” AR 4273. Nurse Silcox testified that, at the October 1994 IEP meeting
she believed Robert had been diagnosed with CFS and was eligible for special
education. AR 854:15 855:14. Nurse Silcox wrote a letter to Robert’s doctor, Dr.
Lake, on November 1, 1994, which states:
I am writing you on behalf of Robert’s teachers who continue to be concerned
about Robert’s apparent tiredness and continued lack of interest in any activity –
physical or mental.
I was concerned that he [Robert] might be depressed until I talked with his mother
and she explained that he had mononucleosis and is now diagnosed with Chronic
Fatigue Syndrome. Would you please send us more information on this diagnosis
and prognosis . . . .
If you would rather call than write me please do. Thank you for your help.
AR 4270.
According to Nurse Silcox, she understood Robert to have CFS at the beginning of
his freshman year:
Q: And when he [Dr. Lake] called, do you recollect specifically that he said Chronic
Fatigue Syndrome or did he say they were doing further testing?
A: He said Chronic Fatigue Syndrome. Questions by Defendant’s attorney, Ms.
Stephens, AR 872:21-24.
Q: At this point, was he [Dr. Lake] finished with his testing or was he, was the
diagnosis still in progress?”
A: As far as I knew, the diagnosis was inclusive. That he [Dr. Lake] had decided
that was his diagnosis.
Questions by Defendant’s Attorney, Ms. Stephens, AR 873:22-27. Plaintiff’s
attorney, Mrs. Graves, elicited the same response:
Q: So, when you were speaking with him [Dr. Lake], were you, under the
impression that Robert did have Chronic Fatigue Syndrome:
A: Yes.
AR 880:2-4. Nurse Silcox considered her November, 1994 telephone conversation
with Dr. Lake sufficient documentation of the diagnosis:
Q: In your letter, do you ask him [Dr. Lake] for a written diagnosis or did you tell
him that a phone call would be fine as well?
A: I have found that doctors sometimes felt that [the phone] was much more
expedient and with documenting what he said over the phone, I felt that was
sufficient . . . .
Q: And, did you push him to put something in writing at that point?
A: No.
AR 880:5-22.
Plaintiff points out that in Defendant’s June 21, 2001, Brief at p. 4:22-24 addressing
whether Plaintiff’s CFS was being “considered” or was actually diagnosed, in a
Further Brief dated August 20, 2001, the word “inclusive” was changed to
“inconclusive,” which misrepresented the status of the CFS diagnosis.
(15) Defendant’s undisputed fact #31 states, “Subsequent to IEP meeting, Nurse
Silcox contacted Dr. Lake regarding Plaintiff’s medical condition and information on
diagnoses or prognoses concerning chronic fatigue syndrome. In addition, Nurse
Silcox discussed with family regarding vitamin supplements. Ms. Moser indicated she
was not interested in vitamin therapy. Defendant’s Undisputed Fact #32 states, “In
November 1994, Nurse Silcox spoke with Mr. Lake who indicated that he was
running a few more lab tests on Plaintiff to make sure he was not anemic. Dr. Lake
also indicated that testing of Plaintiff for mononucleosis was not conclusive and that
he was continuing testing and the diagnosis was still in progress. They also
discussed vitamin therapy.” Letter, p. 3393; Silcox 874:1-12. Defendant’s
undisputed fact #34 states, “district going to provide whatever supports possible
until Mom got diagnosis.” Defendant’s undisputed fact #35 states, “staff was
provided information regarding chronic fatigue syndrome.” Doc. 72.
The statements taken together show Defendant was attempting to misleadingly
imply that the CFS diagnosis was still in progress. The letter and Nurse Silcox’s
testimony were about the mononucleosis diagnosis, not the CFS diagnosis. The
letter cited at AR 3393 is a letter from Nurse Silcox dated November 10, 1994, to
Mrs. Moser, which states, in its entirety:
Dear Mrs. Moser: Dr. Lake called and told me he will be running a few more lab
tests on Robert to make sure that he is not anemic and that his organs are working
properly. He feels that retesting later for mononucleosis is not conclusive as once
this test results show positive, which they will once he has had mono, they will
always show a positive result. In this case a positive result is not always conclusive
or active disease.
I asked Dr. Lake about vitamin supplements for Robert, explaining that you stated
he was not a very good eater. He said that a multivitamin tablet without iron would
be a good idea for Robert. He stated that he had never heard of the body not
producing its own vitamins after having taken a vitamin pill. Please discuss the
vitamin issue with Dr. Lake if you continue to have questions regarding their use.
Please call me if I can be of further assistance.
Nurse Silcox’s cited testimony at 874:1-12 is solely about the mononucleosis
diagnosis, not the CFS diagnosis.
(16) Defendant’s undisputed fact #30, listed under 9th grade (1994-1995) states,
“In response to parents’ concern regarding chronic fatigue syndrome, District staff
offered accommodations, including shorter day, no P.E. or electives, transportation,
and classes in personal development and study skills taught by special education
resource specialist, Ms. Olsen-Miller, in order to monitor Plaintiff’s progress and
provide assistance with written expression. The personal development class and the
study skills class provided by resource specialist who would serve both special
education students and “at-risk” regular education students. Olsen-Miller 746:22-
26; 748:3-5; 759:1-2; 781:4-8; Silcox 863:5-12; Harrison 1288:4-27; Olsen-Miller
759:1-2; 775:22-24; Silcox 881:12-18; Harrison 1355:1-4; Olsen-Miller Notes 3825-
3826.
The record contradicts most of Defendant’s claims. Robert was not offered a
shortened day until his second semester when he transferred to a small
continuation-type high school in Arnold, closer to home. AR 291; 4262. Robert was
not provided transportation until his sophomore year, after his mother specifically
requested transportation services, when she learned from a neighbor that Robert
had the right to the accommodation.
AR 4253; Doc. 72, ¶48 at 13. The school placed Robert in a resource specialist’s
class held in the early morning, at a time Robert’s CFS made it difficult for him to
attend. The school was aware of Robert’s CFS and its effect upon his ability to
attend morning classes. See, e.g., Ingrid-Olsen testimony, AR 750:13. Robert was
not exempted from P.E. until his sophomore year. AR 4226; 867. At Arnold, Robert
was required to keep a P.E. log of activity, the same requirement of every student at
Arnold. AR 4262. Plaintiff points out, and the record confirms, that Robert did not
receive any special written language instruction from Ingrid Olsen-Miller:
Q: Did you – you focused your efforts with him on written language?
A: Most of the time it was just progressive works caught up [sic]. He was so
overwhelmed at times. And most of it was in a written form. So, there was assistance
with that, as well as getting caught up.
Q: Did you have time to deal with the spelling concerns particularly the mother had
had?
A: (unintelligible) Sometimes Robert wasn’t always happy with my hovering over his
shoulders, typical teenager. (Laughter) Sometimes he wanted to be left alone, but I
attempted to assist whenever I could.
AR 749:4-13.
(17) At the end of his first semester of 9th grade Plaintiff’s mother transferred her
son from the District High School to Arnold High School without alerting Bret Harte
High School staff or discussing her decision with anyone. Smith, 1444:10-19.
The cited testimony does not support this claim:
Graves: Do you recall finding out at any point why, uh, Robert had transferred to
Arnold High School?
Smith: No.
Graves: Do you recall finding out at any point how they got him in?
Smith: Pardon me?
Graves: Do you recall ever – at any point receiving anything about how things had
gone for Robert at Arnold High School?
Smith: Not until he was getting ready to come back to Bret Harte.
Graves: And then what did you hear?
Smith: Um, that he was coming back.
The claim is a direct falsehood. Testimony from Ingrid Olsen-Miller indicates she
and Mr. Smith were both aware of
Robert’s transfer sometime in November or early December:
I. Olsen-Miller: Well, he responded and I don’t remember if I spoke to him initially in
about the middle of November, or the end of November, or the first couple of days in
December, but sometime in there I approached him for the first time and it – at that
time he informed me that it looked like Robert would be attending Arnold High the
second semester at parents request.
AR 745:1-6.
(18) Defendant’s undisputed fact #44 states: “Plaintiff missed 16 days in the 9th
grade year, which was ‘real good’ for
Plaintiff.” Wilamek 373:18-22.
Mr. Wilamek’s testimony, AR 373:14-22, states Robert was absent for 16 days
during his second semester of 9th grade, at Arnold High School:
Wilamek: This is the attendance from Arnold High School.
Stephens: OK. You can see it’s obviously been sanitized and only Robert Moser’s
name is left on there.
Wilamek: Um hum.
Stephens: What was his attendance? How would you characterize his attendance
in the ninth grade?
Wilamek: Real good. I mean, he was there a semester and he missed 16 days.
Stephens: OK. So missing 16 days is average, or -
Wilamek: Well, a little bit above average. But for Robert, it’s real good.
(19) Defendant’s undisputed fact #125 states: “October 8, 1997, American
Government instructor indicates Plaintiff refused to keep notebook. . . .” Notes, p.
4075.
This “undisputed fact” is an exaggeration. Mrs. Moser testified:
Moser: I never had a problem with Mr. Randall. He provided the work or came over
or Robert could call him on the phone. They worked it out with each other, and even
if Robert was very sick, he made sure that Robert got the core of what he needed to
know, but he didn’t have to do any of the extra.
…
Stephens: OK. What is it about those [Mr. Overton’s] accommodations that you
disagreed with, other than the fact that you did not want to have Robert, uh, ask a
friend for the assignment if he were away for one or two days?
Moser: And that I would pick it up. Uh, what did you ask me again?
Stephens: What other things did you object to in terms of the accommodations that
are listed here, other than the one you said before about not wanting Robert to ask
a friend for the assignment?
Moser: Uh, I don’t think I had any, we didn’t have any problems in Mr. Overton’s
class. [Emphasis added].
…
Stephens: It sounds like Patti was kind of like a central figure, uh, in helping to
coordinate things, Ms. Haskell, is that correct?
Moser: Very necessary and central person. Yes. She put a lot of time, was very
nice.
Stephens: . . . And then, we have accommodations from Ms. Oneto on the same
page? Did you have objections to some of those accommodations?
Moser: No. I was wondering why that [sic] notes weren’t put on the, on the
American Government class? But anyways, uh, these aren’t, this isn’t the 504 plan
that we signed, or we talked about when we met with the teachers, but, in general, I
guess it’s the same. Do I have any problems with any of this?
Stephens: Uh-huh.
Moser: Well, I had to go get, first, the schoolwork out of it, that brown binder that
she talked about, in the classroom, and that was kind of difficult, so, eventually, I
got, I was able to get Patti, got the information and then, I, instead of trying to
contact all of these teachers, Patti became the one that, you know
Stephens: Okay.
Moser: – I think Patti had to contact them, which I think would make it easier for
Patti, it would have been nice if they didn’t see Robert, just send it to Patti, and
then, I pick it up.
Stephens: Uh-huh. Okay. But as far as the accommodations of English, you didn’t
have a problem with that? The last one, of course, is the, uh, physics program. And I’
m not going to go through this again, because I think we spent a lot of time on this,
but these are the accommodations. Uh, you can see at the bottom of the page, uh,
that, uh, all of the teachers signed this document. But you did not sign this
document?
Moser: No. I’ve never seen this document until today.
Stephens: So, we have to assume that Ms. Wright did not share this document with
you, would that be correct?
Moser: Yes. Stephens: If you had seen this document, would have have signed it?
Moser: No.
Stephens: And the reason?
Moser: Because I don’t agree with, uh, a student being responsible, and like I said
before, if Robert was not there, I need to get the work as soon as possible, and, uh,
what other reason here? Uh, I must have lost my train of thought. [Emphasis added].
Stephens: Okay, well, I think you have sort of a sense, Mrs. Moser, of what you’re
requesting.
Moser: And I would have to have seen Patti on here be the coordinator on this. …
Stephens: When you met, when you came in to meet with some of the teachers,
did they, uh, discuss some of these accommodations with you at that time when you
came in for a 7:30 a.m. meeting?
Moser: Yes, we went over, it was a different paper, though. We had a different
paper.
Stephens: . . . Did Ms. Wright, so Ms. Wright didn’t even tell you that that
document existed? That’s your testimony?
Moser: I don’t remember.
Stephens: Okay. And you don’t have any recollection that she advised you not to
sign it?
Moser: Oh, I know she didn’t tell me to sign it or not, I know I wouldn’t sign it by
what’s in there.
J. Moser, 1979-1983:26.
(21) Defendant’s undisputed fact #167 states: “Plaintiff believes he has the ability to
advocate for himself.” R. Moser 2232:1-19.
The cited testimony does not support this generalized statement as Robert stated
he was still uncomfortable about doing it.
Hearing Officer: Okay. Okay. Just one last question. Jack Pool today testified that
he recently had a meeting with you and your Mom and another counselor at
Columbia – Paul, I think his name was. And you talked about, I guess about self-
advocacy a little bit.
R. Moser: Um-hum.
Hearing Officer: Do you feel that you know where to go to get help when you need
it at Columbia?
R. Moser: Um, I think I know where to go, yeah.
Hearing Officer: Okay. There were some discussion [sic] about you needed [sic] to
talk to your instructors
R. Moser: Yeah.
Hearing Officer: – if you have a problem or if you need an accommodation. Do you
feel more comfortable doing that now or –
R. Moser: I feel a little more comfortable. I’m still uncomfortable about doing it.
Hearing Officer: Um-hum. Have you done that this semester with your instructors?
R. Moser: I’ve done it with one of my instructors.
Hearing Officer: And how did it work out?
R. Moser: It’s working out good.
(22) Defendant’s undisputed fact #169 states, “Mr. Randall saw Plaintiff 2 to 3 times
per week and 1 to 2 times per week after school and on weekends. Randall, 1790:3-
9.
The cited testimony is from Dr. Patterson and deals with what Dr. Patterson would
have done: “. . . Well and included uh, information. Now because there is the
possibility that Robert might have been other health impaired, uh, knowing what we
know from the record at this point in time, I probably would have talked to some
teachers and, uh, asked to come in to view Robert across the day a couple of times,
I would have attained his attendance records to see is there a . . .”
(23) Defendant’s undisputed fact #171 states, “Algebra II was not particularly
challenging, so Plaintiff was advanced to trigonometry. Plaintiff understood concepts
of trigonometry very well. In fact, if Plaintiff attended college, he could take pre
calculus.” Randall 1390:24-26; 1391:14-16; 1400:2-11; Randall 1401:1-3.
The cited testimony is as follows:
Randall 1390:24-26:
Randall: I’m gonna guess 15-20. Mainly were relatives.
Stephens: Did he have friends there, too? Randall. Yes.
Randall, 1391:14-16:
Randall: Yes. He was in a regular algebra 2 class and math is one of the areas
where I think Robert has a strong aptitude. And, the course wasn’t particularly
challenging for him. That’s one of the reasons . . .
1400:2-11:
Randall: Yeah. Um, the concern I had with what he has done in trig is that the
material for which he was present for which he did work, he grasped it very well.
Uh, but there were – because of the absences and because of the homework,
there were some topics, some chapters that he had huge holes. And I did not
penalize him for not having that material, but evaluated him based on the materials
he did achieve.
Stephens: Did he have the opportunity to, uh, contact you to – for some tutoring to
make up these deficits?
Randall: Yes.
1401:1-3:
Randall: Yes. We discussed that. He and I discussed it where when he went to
college that the course to continue with would probably be a precalculus class, and
that some of the topics would be ones that he saw . . .
Testimony not cited does indicate Robert was advanced to trigonometry without
meeting the prerequisite (AR 1391:17-23).
(24) Defendant’s undisputed fact #173 states, “Plaintiff was on medications during
his senior year which changed 5-7 times, but failed to inform school. J. Moser 1938:
21-24.
This statement is untrue. The cited testimony does not support the contention that
Plaintiff did not inform the school. The citation also ignores Ms. Stephens’ comments
and Mrs. Moser’s testimony just prior, where Mrs. Moser specifically states she told
the school about the medication changes. The cited testimony is:
Stephens: At this point, I don’t think I need them. How many times would you say
that the medications were changed during Robert’s senior year?
Moser: Five or seven times.
The entire exchange, including the cited testimony, is:
Ms. Stephens: I think that there’s evidence that, uh, Mrs. Moser testified earlier
that, uh, Dr. Stoke had prescribed various medications to deal with depression and
some of these, uh, medications, I think were, what I would call, heavy-duty
medications in terms of psycho-tropic, uh, drugs and that schools should be notified
that the child is going to be taking these kinds of drugs. So, that’s why I wanted to
know if there was ever any attempt to contact the schools about this.
Hearing Officer: You may answer the question.
Moser: Uh, I know that I wrote a letter asking him to, uh, the school asked me to do
something like that, so, I wrote a letter and I think only Dr. Lee responded to the
school. And then, when, when he started taking different medication, I came in and
told Sandy as it went along like we’re changed to a different medication, ‘cause she
was very, Sandy is very kind and I felt like she cared, if I came in and told her what
was going on. She was a very nice counselor. So, I have the names of the drugs if
you want them.
Stephens: At this point, I don’t think I need them. How many times would you say
that the medications were changed during Robert’s senior year?
Moser: Five or seven times.
Stephens: Five to seven? Moser: I couldn’t tell you exactly. [Emphasis added].
(25) Defendant’s Undisputed Fact #197 states, “Based on Dr. Trotter’s review of
records and conversations with the Mosers, he believes that since Robert was within
normal expectations for his grade level, he probably would not be afforded special
education services under other health impairment criteria, but he would perhaps be
eligible probably for 504 plan accommodations.” Trotter, 283:22-24; 284:10-16.
Defendant mis-cites testimony and omits Dr. Trotter’s comments just prior to the
cited testimony where he says he is speaking “in generalities” and “hypothetically”
as to “if Robert was doing within normal expectations for his grade level . . .” Dr.
Trotter does not state that “he believes that since Robert was within normal
expectations for his grade level.” Trotter, 283:22-24, states:
Graves: Okay. Based on your review of the records and conversations with the
Mosers, how long do you think Robert would have been eligible to be treated as an
OHI student under IDEA?
Trotter: Well, as long as he was in school, and then I don’t know how the junior
college component how they – how their student services . . .
Trotter, 284:10-16, states:
Graves: The general testing?
Trotter: Yeah, he was functioning, you know, despite his illness, he was managing
to process more information quite well. We can only conjecture if he wasn’t, how well
he would be doing. But he still met the threshold of average performance.
Graves: Okay.
Trotter: In my understanding, we’re saying that he wouldn’t be lost in a [regular
class].
Not cited by Defendant are the prior lines of testimony on page 284, by Dr. Trotter:
Graves: Oh, I’m talking about before you came on board. How long – how many –
at one point do you think he became eligible as an OHI student?
Trotter: Well, again, it’s based on the – you know, again I can only talk
hypothetically, not specifically to Robert’s case. But if he was doing within normal
expectations for his grade level, he probably would not be afforded special ed
services under OHI, but he would perhaps be eligible for probably 504 plan
accommodations. But these are generalities, okay, not specific to this case,
because I was not part of the IEP team. [Emphasis added].
(26) Defendant’s Undisputed Fact #217 states, “deficit in spelling did not affect
plaintiff’s writing competence” and cites “Patterson, 1279:1-12.”
Dr. Patterson was Plaintiff’s expert. The cited testimony was from Michael Harrison,
Defendant’s school psychologist, not Dr. Patterson. Michael Harrison’s full testimony
on the issue, at AR 1279:12-27, 1280:8-12, does not support Defendant’s
generalized claim:
Harrison: There seemed to be a deficit in spelling, but it did not seem to be having
a significant effect on his writing competence. It seemed to be more related to
spelling itself.
Graves: Okay. And did you notice errors in his writing itself?
Harrison: Um – that would have been scored by the resource specialist. And when I
look at just the results of that testing, um, what was told to me and what was
demonstrated by the formal results of the test was that his writing skills were within
the average range.
Graves: Okay. Was he making any grammatical errors that you’re aware of?
Harrison: That would – that would need to be, I would want the resource specialist,
the person who had actually given that test to speak to –
Graves: Okay. And were you able to review the actual sample of the writing he had
produced for that test?
Harrison: Hm hmm. Hmm. I saw, um, copies of a –
Graves: Okay. And do you know where those will be now? Harrison: I think I
passed them up even . . . . Harrison: I don’t believe that I was given any of that in
preparation for this, um, it would be typical in an IEP meeting that I would look over
the results the resource specialist had, um, I think the only thing I’ve seen written
out is just results of the – the from the previous ability test, (unintelligible) tests that
has been given.
///
3. Misstatements and Mischaracterizations of Applicable Law
(1) Counsel stated in her July 31, 2002, brief:
Procedural flaws do not automatically require a finding of a denial of FAPE. (See,
W.G. v. Board Trustees of Target Range School District, 960 F.2d 1479, 1484 (9th
Cir. 1992). In fact, the U.S. Supreme Court defined what is meant by a ‘free
appropriate public education’ and concluded that the IDEA does not require that a
student be provided with the best available special education services or that the
services maximize each child’s potential. It also concluded that the basic floor of
opportunity provided by the Act consists of access to education which provides
some educational benefit.
Doc. 80, Def.’s Memo re Summary Judgment, at 31:15-21.
Defendant’s partial presentation of IDEA case law ignores and obfuscates the
central role procedural safeguards play, which counsel, as an educational law
specialist, should know are the basic tenets of established IDEA case law. The case
counsel cites does say that procedural defects are not per se violations, but the
complete citation states: “Procedural flaws do not automatically require a finding of
a denial of a FAPE. However, procedural inadequacies that result in the loss of
educational opportunity, or seriously infringe the parents’ opportunity to participate
in the IEP formulation process clearly result in the denial of a FAPE.” W.G. v. Board
of Trustees of Target Range School Dist. No. 23, 960 F.2d 1479, 1484 (9th Cir.
1992) (emphasis added).
Counsel’s selective partial citation is misleading and attempts to obscure the rule
regarding procedural safeguards and instead create the false impression that
minimal educational benefit is the only measure of what constitutes a FAPE, when
the applicable case law says no such thing:
When a district fails to meet the procedural requirements of the Act by failing to
develop an IEP in the manner specified, the purposes of the Act are not served, and
the district may have failed to provide a FAPE. The significance of the procedures
provided by the IDEA goes beyond any measure of a child’s academic progress
during the period at issue. As the Court in Rowley said, “Congress placed every bit
as much emphasis upon compliance with procedures giving parents and guardians
a large measure of participation” at every step “as it did upon the measurement of
the resulting IEP.” Rowley, 458 U.S. at 205-06.
W.G. v. Board of Trustees of Target Range School Dist. No. 23, 960 F.2d 1479,
1485 (9th Cir. 1992). Plaintiff’s portrayal of Rowley as simply requiring a minimum of
“some educational benefit” to the exclusion of procedural safeguards severely
mischaracterizes the law, in what can only be interpreted as an intentional attempt
to mislead the court. Counsel’s conduct goes far beyond the vigorous advocacy of
distinguishing cases or holdings harmful to its position; counsel actively
misrepresents the basic standard by which IDEA cases are judged.
(2) Counsel stated in her brief of June 4, 2001, that Plaintiff could not be
reimbursed for the purchase of a computer, internet access fees, and counseling
because “20 U.S.C. § 1412(a)(10)(C)(iii) requires that the parents give written
notice to the District before they can be reimbursed for educational services
unilaterally purchased.” Doc. 25, Def.’s Brief re De Novo Review, at 36:21-26.
Counsel repeats this claim in its opposition to Plaintiff’s Motion for Summary
Judgment. See Doc. 87 at 34:5-10.
Review of the citation from the IDEA and the context in which it is made reveals that
counsel seriously mischaracterized the law. First, the cited text only discusses a
situation where the child is enrolled in private school without the consent of the
public agency. 20 U.S.C. § 1412(a)(10)(c). Second, there may be a denial of
reimbursement for private school fees if the parents did not notify the public agency
prior to the child’s removal from public school. 20 U.S.C. § 1412(a)(10)(C)(ii and iii).
Third, the parents have to be notified of the requirements under this section. 20 U.S.
C. § 1412(a)(10)(C)(iv). Plaintiff did enroll in private school; he was not removed
from public school; he was not seeking private school fees; and there is no
evidence his mother received any kind of notice from Defendant about the
requirements. The cited portion of the IDEA does not say what Counsel suggests it
says. Plaintiff explained in detail why counsel’s statement of the law was wrong in
the reply of October 15, 2001. See Doc. 44, Pl.’s Answer to Evidentiary Objection at
55:1-22. Yet, on August 15, 2002, Defendant’s counsel reiterated the identical
(wrong) characterization of the law in the exact same language, verbatim. See Doc.
87, Def.’s Opposition re Summary Judgment at 34:5-10.
Lozano, Smith attempts to explain away this mischaracterization as a mere
“mistake.” Lozano, Smith’s explanation is untenable given the repeating of this
misstatement of law after it was challenged.
(3) Counsel also suggests that accommodations that satisfy Section 504 of the
Rehabilitation Act would satisfy IDEA requirements. Doc. 41, Def.’s Further Brief re
Do Novo review, at 12:7-11 (“There is no law preventing regular education
accommodations, being developed as part of a Section 504 plan, to be written as a
document separate and away from the IEP process. Moreover, the 504
accommodations were subsequently adopted by the IEP team as part of Plaintiff’s
IEP”). Defendant attempts to perpetuate this deception in the opposition to Plaintiff’s
Motion for Summary Judgment by claiming the District provided a FAPE based upon
those accommodations allegedly made under Section 504 of the Disability Act. See
Doc. 87, at 24:4-20.
This is plainly not the law as discussed in detail in the Memorandum Decision and
Order. See Doc. 102. A school has no leeway to substitute a 504 Plan for required
IEP/IDEA services. “Both sections 504 and IDEA have been interpreted as requiring
states to provide a free appropriate public education to qualified handicapped
persons, but only IDEA requires development of an IEP and specifically provides for
transition services to assist students [to] prepare for a post-high school
environment. See 20 U.S.C. § 1401(a)(20). Under the statutory scheme, the school
district is not free to choose which statute it prefers.” Yankton School District v.
Schramm, 93 F.3d 1369, 1376 (8th Cir. 1996). “[T]he District should have devised
an IEP to meet [the student’s] unique needs in compliance with the provisions of the
IDEA, and its proposed plan under § 504 of the Rehabilitation Act was not an
adequate substitute.” Muller ex rel. Muller v. Committee on Special Educ., 145 F.3d
95, 105 (2d Cir. 1998).
(4) Adaptive Physical Education Requirements (APE)
Defendants argued in their June 4, 2001, brief at p. 26:18-22:
APE is the most restrictive form of physical education and is not provided unless
(1) a student cannot participate in regular physical education classes to support his
equal participation; (2) modifications cannot be made to the student’s regular
physical education; and (3) specially designed physical education would not be
appropriate.
Plaintiff rejoined that 5 Cal. Cr. C. § 30515 in truth provides:
[c]onsultative services may be provided to pupil, parents, teachers, or other school
personnel for the purpose of identifying supplementary aids and services of
modifications necessary for successful participation in the regular education
program or specially designed physical education programs [in special day classes].
Defendant’s argument that APE services required Robert be exempted rather than
aided by APE to access physical education was at the least a distortion, if not a
misrepresentation of the law, which encourages APE services to teach students to
work around limitations to facilitate participation activities with non-disabled peers.
(5) Standard for Entitlement to Extended School Year Services.
Defendant, in opposition to summary judgment at p. 27:9-12, argued that extended
school year services are only warranted for students who face regression, in the
event that services are interrupted. Defendant argued that Robert did not need
“extensions” into the summer and should be judged by what he completed by the
end of the school year, based on Defendant’s claim that California’s ESY regulation
provides that “ESY services are provided when ‘an interruption of the pupil’s
educational programming may cause regression.’”
To the contrary, regulation does not require proof of regression and in substance
calls for extended school year services to be provided to each individual with
exceptional needs who has unique needs and requires special education and
related services in excess of the academic year. Such individuals have handicaps
likely continued indefinitely or for a prolonged period and interruption of the pupil’s
educational programming may cause regression, when coupled with limited
recoupment capacity, rendered impossible or unlikely the student will attain the level
of self-sufficiency and independence that would otherwise be expected in view of his
or her handicapping condition. The lack of clear evidence of such factors may not
be used to deny an individual an extended school year program if the Individual
Education Program team determines the need for such a program and includes
extended school year in the individualized education program pursuant to
subsection (f). As Plaintiff correctly notes, under federal law, regression-recoupment
is not the standard for availability of ESY services. Johnson by and through Johnson
v. Independent School Dist. No. 4 of Bixby, Tulas County, Okla., 921 F.2d 1022,
1027-28 (10th Cir. 1990) (citing Alamo Heights Ind. Et. School Dist. v. State Board
of Education, 790 F.2d 1153, 1158, fn.3 (5th Cir. 1986).
(6) Whether Robert’s Parents Were Barred From Reimbursement By Failure to
Provide Notice To the District Before Making Expenditures On Robert’s Behalf.
Defendant argued that 20 U.S.C. § 1421(1)(10)(C)(iii) requires parents to give
written notice to the District before they can be reimbursed for educational services
unilaterally provided and that Robert’s parents did not give Defendant
District such notice. Brief filed June 4, 2001, p. 36:24-26. The reference section
does not require advance written notice before reimbursement for educational
services unless the student previously received special education and related
services under the authority of a public agency and are removed by parents to be
enrolled in a private elementary or secondary school without the consent of or
referral by the public agency, and the parents seek reimbursement for the cost of
that enrollment. The written notice requirement only applies if parents have been
given notice of the requirement. Here, there is no showing Defendant ever gave
such notice. 20 U.S.C. § 1412(a)(10)(c)(iv)(IV).
This section of law did not become applicable in California until January 1, 1999,
after it was added to federal law by Stats. 198, c. 691 (S.B. 1686). After notice of
the error, Defendant continued to advance the argument.
B. Attacks on Plaintiff and Plaintiff’s Counsel.
Separate from the distortions and misrepresentations detailed above, Ms. Yama
and Lozano Smith engaged in ad hominem attacks on Plaintiff, suggesting he had a
bad attitude and was a malingerer. They also attacked Plaintiff’s counsel with
accusations she was mischaracterizing the record and falsely attributed arguments
in the federal case to Plaintiff that Plaintiff’s counsel did not advance.
C. Elaine Yama
Ms. Yama has submitted a separate brief and declaration which attempts to explain
that the misstatements and frivolous objections were due to either mistake,
misunderstanding, or carelessness. See Yama Decl., Doc. 132 and Yama
Supplemental
Decl., Doc. 154. Ms. Yama contends she misunderstood the nature of the
proceedings and did not realize they were to be conducted as a “standard summary
judgment motion,” with separate statements of undisputed facts. Id. Ms. Yama
contends she believed she was merely submitting a statement of chronological
facts, and that in this statement she could state “any fact which had a scintilla of
evidence in support of it,” regardless of credibility issues or the strength of evidence
to the contrary. Id.
In support of this explanation, Ms. Yama points to her December 7, 2001, letter to
the Court where she proposed an alternate method of proceeding with summary
judgment. See Doc. 132, Exh. B. Ms. Yama proposed that:
Each party submit a ‘Chronological Statement of Material and Relevant Facts,’
following a format similar to that set forth in this Court’s Local Rule 56-260. The
Chronological Statement of Material and Relevant Facts shall enumerate discretely
each specific material and relevant fact and cite the particular portions of the
administrative record relied upon to establish that fact.
Yama Decl., Doc. 132, Ex. B, at 2. The letter also made two other substantive
proposals: “Chronological Statement of Material and Relevant Facts will be filed with
a Brief” and “Failure to support a fact or disputed fact by appropriately citing to the
administrative record, will result in a finding that the fact is unsupported and it will be
disregarded by the Court.” Yama Decl., Doc. 132, Ex. B, at 2.
By this letter, Ms. Yama sought to create an unorthodox procedure which she claims
partially excuses two areas of improper conduct. Ms. Yama points to her suggestion
that all facts had to be cited to the administrative record, as justification for her
patently frivolous objections to Plaintiff’s statement of simple, indisputable
background facts. Ms. Yama also explains her misstatements and
mischaracterizations of the administrative record and law were based on her “belief”
that the existence of some faintly colorable evidence was sufficient to substantiate a
“fact” for inclusion in the Chronological Statement of Material and Relevant Facts in
the face of much stronger evidence contradicting that “fact.” As she has stated, “I
understood that the parties were not submitting undisputed facts, as would normally
be the case with a summary judgment motion. Accordingly, I never referred to my
statement of facts as ‘undisputed’ facts.” Yama Decl. Doc. 132 at 2:20-22 (emphasis
in original).
Ms. Yama also states without explanation that she “assumed that the Court agreed
and understood that the statements would not constitute a true effort to set forth
‘undisputed facts.’” See P&A by Yama, Doc. 134 at 23-25. As a seventh year
associate Ms. Yama should have had enough experience with the courts to know
that once she proposed a significant and unproductive departure from the Federal
Rules of Civil Procedure, by informal correspondence to the court, she had no basis
to “assume” the court’s lack of response to her letter request was acceptance of
that proposal, absent a court order. Counsel may not offer: “here is my proposition,
if I don’t hear from you within x number of days I will assume you agree or have no
objections.” Ms. Yama’s contention that she believed she had court approval of her
unprecedented request is untenable. Ms. Yama’s explanation ignores that in her
very same December 11, 2001, letter to the court, she also suggested that the
parties be limited to 50 facts and 15 pages. Yet her submission of Defendant’s
chronological statement of facts included 221 facts in 30 pages. This submission
indicates that either Ms. Yama was picking and choosing which of her December 11,
2001, suggestions she “assumed” the court had accepted, or she is simply
attempting to excuse the inexcusable by presenting this letter as a post hoc
rationalization.
The latter is more likely true given Ms. Yama’s letter to the court, dated July 26,
2002, which accompanied Defendant’s submission of an amended Response to
Plaintiff’s Separate Statement of Chronological Facts.7 See Doc. 155. On July 26,
2002, Ms. Yama states:
After reading the Court’s most recent decision, Defendant’s counsel now
understand that they misinterpreted the Court’s order. Defendant’s counsel
believed that the procedure to be utilized in this review of the hearing officer’s
decision was a format of modified summary judgment. However, it now understands
that the Court ordered a formal summary judgment procedure. Defendant’s counsel
apologize for its misinterpretation and any inconvenience to the Court or Ms.
Graves that our misinterpretation may have caused.
To conform to the Court’s order, Defendant therefore provides the enclosed
Amended Response to Plaintiff’s Statement of Chronological Facts . . . .
The Amendment consists of exchanging the words, “No Response” to
“Undisputed.” Also, the Amendment consists of adding the word “Disputed” prior to
all other responses, to which Defendant objected and/or responded.
Id.
Ms. Yama’s letter admits she knew that the proceedings were governed by the
FRCP applicable to summary judgment. Ms. Yama modified Defendant’s Response
to Plaintiff’s Separate Statement of Chronological Facts based upon her
understanding. Defendant’s modified response continues to include the many
frivolous and vexatious objections listed by the Court in both its Memorandum
Opinion on the Motion for Summary Judgment (Doc. #102) and the Court’s Order to
Shaw Cause (Doc. #101). Ms. Yama could have corrected Defendant’s Response
and Objections to Plaintiff’s Statement of Chronological Facts and Defendant’s own
Separate Statement of Chronological Facts by submitting a similarly amended
statement or an errata, to correct those statements of fact that were not supported
by the record. She consciously chose to do neither.
7 Ms. Yama inexplicably neglects to include a copy of this correspondence with her
declaration in response to the Order to Show Cause, another omission of relevant
facts.
For example, one of the “disputed facts” pointed out in Ms. Yama’s July 26, 2002,
letter is fact #16, which Defendant “changed from ‘no response’ to ‘disputed’
because Defendant did not realize the conflict in the date referenced.” See Doc.
155. This very objection is noted in the Order to Show Cause (Doc. #6 at 27) as
“confusing at best and misleading at worst” because the date on the doctor’s P.E.
excuse note clearly states Mr. Moser was seen August 1994, yet Defendant’s
amended response attempts to suggest the diagnosis was on the date the doctor’s
note was signed, in 1995. This was done despite unequivocal reference to the
diagnosis date as August 1994. It is impossible to interpret this objection as
anything other than intentionally misleading, especially when combined with the
letter to which it is attached.
Ms. Yama’s attempts to excuse her behavior by contending she was operating
under the assumption that the hearing officer “accurately described” the facts in the
administrative record is not credible. See Doc. 134 at 10:10-16. The review was “de
novo;” Ms. Yama knows the standards governing de novo review and the case law
which holds that while deference is given a hearing officer’s fact findings, that
deference is only given if the hearing officer does a thorough and complete job.
Adams v. Oregon, 195 F.3d 1141, 1145 (9th Cir. 1999); see also, Doc. 102 at 114.
Any deference due the hearing officer’s decisions regarding the law is irrelevant to
Ms. Yama’s misstatements of fact. Any deference due the hearing officer’s findings
of fact is made moot by Ms. Yama’s actual knowledge that her characterizations of
factual issues she included in the Motion for Summary Judgment pleadings were, at
a minimum, highly suspect. By the time Ms. Yama received Plaintiff’s complaints
about her misstatements in the Trial De Novo briefs, as well as two letters
requesting Defendant correct the record with the Court, she waived any entitlement
to rely upon allegedly incorrect findings of fact provided by the hearing officer.8
Assuming, arguendo, that Ms. Yama’s reliance on the SEHO hearing officer was in
good faith, a party is responsible for innocent, good faith mistakes of law or for
carelessness of counsel, because reasonable inquiry would reveal a mistake, and
counsel who is careless has not made reasonably inquiry. Lloyd v. Schlag, 884 F.2d
409, 412 (9th Cir. 1989). Ms. Yama’s alleged “reliance” on the SEHO officer’s
recitation of the record is also not reasonable under the circumstances, given: 1)
the Hearing Officer apparently wrote his decision without the benefit of a transcript
of the hearing; and 2) Defendant’s misstatements of fact cite the transcript
(administrative record), not the Hearing Officer’s erroneous decision. See, e.g.,
Doc. 68.
8 Neither Ms. Yama nor Lozano Smith point out which misstatements they made that
were allegedly repeated from the Hearing Officer’s decision. The bulk of facts
contained in the Hearing Officer’s opinion are in his “Background Section,” not in
the “Findings of Fact and Conclusions of Law” to which Ms. Yama and Lozano Smith
contend deference is owed. Given that the briefs cite the administrative record in
support of the misstated facts, and not the Hearing Officer’s opinion, the argument
is specious.
Ms. Yama contends she “made a number of mistakes” in the papers she submitted,
but that these were “honest mistakes resulting from her confusion,
misunderstandings, incorrect assumption, and her failure to double check her
factual citations.” Doc. 134 at 1:24-28. However, taken as a whole, Ms. Yama’s
pattern of practice does not support the position that she was merely negligent in
her reading of the record. Plaintiff’s counsel made numerous objections to Plaintiff’s
statements (some correct, many incorrect) citing to the text of the administrative
record. To then turn around and claim that defense counsel’s own
mischaracterizations are due to her lack of familiarity with the record or a failure to
carefully cite to the record is disingenuous.
While isolated errors or misstatements might be excused given the size of the
record, the sheer volume of misstatements coupled with the fact that they
universally favor the Defendant suggests a concerted attempt to distort the record
to make it say what it does not. For example, in addressing the sample of issues
listed in the Order to Show Cause, Ms. Yama admits she overstated or incorrectly
stated the evidence at least seven times and made a mistake in her interpretation,
reading, or note taking with regard to the administrative record approximately
seventeen times. Ms. Yama admits her objections to Plaintiff’s facts were “hyper
technical,” i.e., frivolous, improper or unclear at least six times. She acknowledges
that on at least four occasions she objected to obviously indisputable facts simply
because Plaintiff did not cite to the record, based on her self-suggested assumption
that the proceedings would not be subject to the federal rules of civil procedure
governing a summary judgment motion (an assumption which has since been
disproved by Ms. Yama’s July 26, 2002, letter acknowledging she understood the
nature of the proceedings).
Taken as a whole, Ms. Yama admits she made mistakes, misinterpreted the
evidence, overstated the facts or made hyper- technical or improper objections
approximately thirty-four times. These examples are limited to the instances of
problems listed in the Order to Show Cause. The only reasonable inference that
can be drawn is that Ms. Yama and her law firm intended to obstruct at every step
and stand education law on its head. A filing is frivolous under Rule 11 if it is
unreasonable when viewed from the perspective of a competent attorney admitted
to practice before the district court. G.C. & K.B. Investments, 326 F.3d 1096, 1109;
In re Grantham Bros., 922 F.2d 1438, 1442 (9th Cir.); Zaldivar, 780 F.2d at 831.
A negligent or too attenuated examination of the record would not result in the
extremely skewed view of the record Ms. Yama presented. Her presentation was
carefully constructed to omit or minimize adverse facts, e.g., portions of transcripts
were cited out of context to support made-up facts, that, when viewed in their
entirety, contradict the true record. It is obvious Ms. Yama clearly scrutinized the
record to explicitly cite only portions of it, or to refer to testimony favorable to the
District, but was only “mistaken” when she misrepresented the remainder of the
record, her explanations are not credible. “A district court confronted with solid
evidence of a pleading’s frivolousness may in circumstances that warrant it infer that
it was filed for an improper purpose.” Townsend v. Holman Consulting Corp., 929 F.
2d 1358, 1365 (9th Cir. 1990).
Counsel found ways to ostensibly conform record references to support Defendant’
s case by misreading context, omitting critical facts, and sometimes by simply stating
the opposite of what was in the record. This kind of disinformation is insidious
because it was provided by an officer of the court. It created a greater burden on
plaintiff and the court. Defendant’s counsel treated the law with the same contempt
for accuracy. Attorneys have a duty to actively advocate on behalf of their clients
but they have no duty to misrepresent facts or misstate law. Rule 11 creates and
imposes on a party or counsel an affirmative duty to investigate the law and facts
before filing; Rachel v. Banana Republic, Inc., 831 F.2d 1503, 1508 (9th Cir. 1987)
and further obliges an attorney to dissuade a client from pursuing specious claims,
to avoid possible sanctions by the court, as well as unnecessary costs of litigating a
worthless claim. Mohammed v. Union Carbide Corp., 606 F.Supp. 252 (E.D. Mich.
1985).
Ms. Yama repeatedly states that the administrative record and the appeal process
was so difficult and confusing that these factors significantly contributed to her
“mistakes.” While the administrative record was voluminous and in many cases
duplicative, the standards by which a district court reviews a hearing officer’s
decision are clearly set out in easily accessible case law, as is evidenced by
Defendant’s invocation of one (but not all) of those standards in its summary
judgment brief. It is not credible to suggest a seventh year associate, practicing for
three years in education law, could not keep the record straight and address the
issues raised by Plaintiff.
It is difficult to ascertain whether counsel has taken seriously the duty of honesty
and candor owed to the Court. Every time a party submits a filing, the attorney
personally certifies the contents both as to reasonable factual investigation and
legal research. See Fed. R. Civ. Pro. 11(b). This professional responsibility
transcends the role of advocate and duty to the client if the two conflict.
Ms. Yama’s declaration and brief in response to the Order to Show Cause give the
impression she is a neophyte lawyer who was unable to grasp the complexity of the
case or record and made a few errors due to her misunderstanding of the
specialized nature of the law, the proceedings and the record. This portrayal is
belied by the history of the case and Ms. Yama’s experience. Ms. Yama is not a first
year attorney, she is a seventh year attorney – in some firms she would already be
a principal. She has been practicing in the area of education law for over three
years, for a law firm which holds itself out as a leading specialist in California in this
area of law.
Assuming, arguendo, that a seventh year attorney is somehow not experienced
enough to understand the nature of a summary judgment proceeding or to verify
the record facts or the law underlying her legal arguments, as an attorney licensed
to practice law in the State of California, Ms. Yama had an ethical obligation to ask
for help and get instructions from her superiors if she truly could not deal with the
“complexities” of the case. Rule 11 creates and imposes on a party or counsel an
affirmative duty to investigate the law and facts before filing. Rachel v. Banana
Public, Inc., 831 F.2d 1503, 1508 (9th Cir. 1987).
What is hard to understand is Ms. Yama’s alleged inability to understand the
background of the case before submitting briefs, verifying statements of fact against
the record, and asking for help, if she needed it. All of these actions, Ms. Yama now
contends she will take in the future, are actions that should be second nature to a
seventh year associate. It should not require an Order to Show Cause proceeding
and prospect of sanctions to actuate professional responsibilities.
Ms. Yama’s contention that this is not a situation where she “knowingly concealed
material facts or knowingly asserted a frivolous position,” (Doc. 134 at 12-13) is
simply untrue given the evidence discussed in this order. Ms. Yama still does not
candidly accept responsibility for her actions, instead she repeatedly states only
that “mistakes were made.” See Doc. 134. Her assertions that the “pressure of
private practice” requires that mistakes will inevitably be made, demonstrate her
complete lack of understanding of her ethical responsibilities as an officer of the
court or the serious nature of this proceeding and the allegations against her. Ms.
Yama’s contention that while the “mistakes” she made “may be the result of a
certain degree of carelessness, they do not involve the type of recklessness
required to warrant [Sect.] 1927 sanctions,” is contradicted by the evidence. Ms.
Yama made more than a few “mistakes” and was much more than simply “careless.”
She was reckless. She systematically distorted the record and repeatedly ignored
Plaintiff’s objections and warnings that she was doing so.
In fact, Ms. Yama’s declaration in response to the Order to Show Cause, in at least
two instances evidences that she still doesn’t “get it.” Ms. Yama contends Defendant’
s Fact #37 is supported by the testimony of Mr. Smith, that he, himself, was not
aware of Robert’s transfer to Arnold High School. Doc. 134 at 17:5-15. Defendant’s
fact #37 states: “[a]t the end of his first semester of 9th grade Plaintiff’s mother
transferred her son from Bret Hart High School to Arnold High School without
alerting Bret Harte High School staff or discussing her decision with anyone.” Ms.
Yama’s explanation ignores the actual language used in reciting this fact –
defendant doesn’t say Mr. Smith was not alerted, Defendant says: 1) none of Bret
Harte’s staff was alerted; and 2) Mrs. Moser didn’t discuss her decision to transfer
Robert “with anyone.” Citing to Mr. Smith’s testimony does not excuse the falsity of
this statement. Ms. Olsen-Miller had actual knowledge of Robert’s transfer. Whether
or not she actually discussed it with Mr. Smith, and whether that creates some
conflict in the facts, is irrelevant. Defendant claimed “no one knew of the transfer,”
however Defendant’s own employee, Ms. Olsen-Miller expressly admitted she knew
of Robert’s transfer to Arnold in at least November or December. This is a direct
falsehood; Ms. Yama’s explanation only exacerbates it.
Regarding Plaintiff’s fact #96, Ms. Yama admits her objection was “overly technical”
because she believed “it was proper to object to Plaintiff’s contentions if they did not
constitute a verbatim recitation of the evidence.” Ms. Yama now realizes that if the
statement she objected to was substantively supported by the evidence, she should
not have objected to it. Ms. Yama attributes her “over technical” objection to her
“limited experience.” A seventh year associate’s explanation that this error was due
to limited experience is patently unreasonable.
Taken as a whole, Ms. Yama’s repeated misstatements of the facts, frivolous
objections, and mischaracterizations of law, when combined with the fact that she
was placed on notice of her transgressions no less than four times by Plaintiff’s
counsel, throughout the painful progress of trying to get the summary judgment
motions before the court for decision,9 cannot be interpreted as anything other than
a bad faith attempt to mislead the Court, obscure the real facts of the case, to
obstruct, and/or harass the Plaintiff. This was an effort to either wear down the
Plaintiff or to win a victory for Lozano Smith’s client that was clearly unjustified by
either the facts or the law.
9 In many instances, Plaintiff provided very specific examples of misstatements and
citation to the correct section of the record, which provided Ms. Yama, Lozano Smith
and Defendant with an easy guide to correct these misrepresentations.
These actions violated provisions of Rule 11(b)(1), (3), and (4), as well as § 1927.
Ms. Yama has been involved in at least four other special education cases. Graves
Decl., Doc. 151, at 1:23. In California, Lozano Smith is a self-proclaimed major firm
in the education law field. It can only be hoped that these practices are not the
standard mode of operation for Lozano Smith attorneys, due to their potential to
materially harm other special education plaintiffs.
Ms. Yama’s protestations that she never meant to submit any incorrect, improper, or
misleading pleading (Doc. 134 at 2:1824), nor did she mean to harass opposing
counsel, rings hollow, given: 1) the express notice she was given that she was doing
so; 2) the numerous opportunities she had to review and correct the falsifications
contained in the pleadings repeatedly pointed out by opposing counsel; and 3) the
repetitive nature and extent of her “errors.”
Ms. Yama’s claim that there was no other Lozano Smith attorney to help her
understand the administrative record is equally unavailing. See Doc. 134 at 4:6-8.
According to the District’s responses to Plaintiff’s interrogatories, Ms. Yama made
no attempt to contact the District’s attorney who handled the administrative hearing
and was presumptively intimately familiar with that record. At least two other Lozano
Smith attorneys were “of record” on the pleadings. There is no suggestion the
District’s attorney was unavailable for consultation over the course of this litigation.
Ms. Yama states she is unlike those attorneys who have received Rule 11 sanctions
for ongoing or repeated conduct and she does not believe in “pushing the ethical
envelope.” This case is entirely about Ms. Yama, Lozano Smith and Bret Harte
Unified School District “pushing the ethical envelope” and engaging in ongoing and
repeatedly deceptive and obstructive conduct throughout the case’s several year
history.
Ms. Yama claims that she acknowledged responsibility for her mistakes by
accepting, without objection, the corrective measures voluntarily imposed upon her
by the Lozano Smith firm. However, in this order to show cause proceeding, she
repeatedly attempts to attribute her breaches to inexperience and confusion (as a
seventh year associate specializing in education law). This calls into question the
bonafides and true extent of her acceptance of responsibility for her conduct.
When an attorney repeatedly and vexatiously presents “facts” and “law” to the Court
that are plainly wrong or misleading, which needlessly prolong and multiply the
summary judgment proceedings and materially increase the burden on the Court,
bad faith can be inferred. Appropriate sanctions can be imposed under the authority
of both 28 U.S.C. § 1927 and the inherent authority of the Court. Ms. Yama’s
admissions that she did not review the pleadings or the record before submitting her
objections and misstatements of disputed facts, shows she acted unreasonably. Any
competent attorney would have made such an investigation, as required under Rule
11 to determine the accuracy of the statements of undisputed facts, the law, and
grounds for objections. The substance of Ms. Yama’s opposition is not that she has
fully and unequivocally accepted responsibility for her breaches of duty and the
rules of professional conduct.
Sanction authority exists under Rule 11(b)(1), (3) and (4) for the frivolous
objections, misstatements of fact and law contained in her Summary Judgment
pleadings under 28 U.S.C. § 1927 and the Court’s inherent power, for her steadfast
refusal to correct these errors when faced with repeated objections and explicit
notice that her papers were inaccurate and misleading, in violation of her duty of
truth and candor to the Court. It is reasonable to infer that Ms. Yama should have
known that her efforts amounted to obstruction of the just resolution of the case and
harassment of the Plaintiff.
D. Lozano Smith
Lozano Smith characterizes itself as a “recognized leader” in special education law
in California and that it provides training seminars for special education attorneys
and administrators. Mr. Fulfrost, the managing partner of Lozano Smith’s Santa
Monica Office was heavily involved in the early stages of this case and is an expert
in special education and students with disabilities. See www.lozanosmith.com,
accessed October 11, 2004. Mr. Smith is a former Senior Deputy County Counsel
for Fresno County Schools and has been practicing law for 24 years. Id. Mr. Sklar
was admitted to the bar in 1995 and lists his specialty as Education Law. Id. Ms.
Yama practices law with a primary focus in special education and has assisted
school districts with IEP meetings, mediation and due process hearings and has
presented at workshops related to special education in California. Id. Mr. Fulfrost,
Mr. Smith, and Mr. Sklar further all actively worked on this case at various times as
detailed by Plaintiff’s submission filed February 25, 2004, pp. 2:5-4:4, and the
submission filed November 5, 2003, pp. 5:23-6:10 and 7:17-8:12.
Lozano Smith contends that the mistakes made in this case are the result of Ms.
Yama’s actions and Ms. Yama’s actions alone. See Doc. 137, Lozano Smith Memo
re OSC, 3:7-15. Mr. Smith has stated that Ms. Yama was an experienced attorney
who he felt (based on an active working relationship over a four year period) could
handle the case and submit pleadings without direct supervision. See Smith Decl., 2:
3-3:2. Lozano Smith appears to argue that because it previously provided Ms. Yama
with “sufficient training” and “supervision,” the firm has not engaged in bad faith
sanctionable conduct. Lozano Smith ignores the fact that Ms. Yama was not the only
attorney who signed misleading pleadings and it ignores the repeated objections
and warnings from Plaintiff about its malfeasance.
The various papers filed with the Court were signed by no less than three Lozano
Smith attorneys: Edward Sklar, Elaine Yama and Michael Smith, a founding
shareholder. In fact, Ms. Yama states she did not write, but merely incorporated, the
distorted and incorrect legal arguments from the Trial De Novo brief written by Mr.
Sklar.10 See Doc. 154. This raises question whether a culture of misrepresentation
and deception exists at Lozano Smith, if an attorney more senior than Ms. Yama
(who already has seven years experience), submitted the previously discussed
misleading and inaccurate legal papers.
10 Such actions violate Rule 11. See Rachel, 831 F.2d at 1508.
Lozano Smith contends, without citation, that recklessness alone is not enough for
sanctions under 28 U.S.C. § 1927. Doc. 136 at 5:11 and at 6:9-11. This is not
entirely accurate. Under Fink v. Gomez, 239 F.3d 989 (9th Cir. 2001), the Ninth
Circuit recently reconciled its prior cases and stated: “[R]ecklessness suffices for §
1927, but bad faith is required for sanctions under the court’s inherent power.” Id.
(Emphasis added.)
Lozano Smith appears not to fully recognize the severity of the problems created by
its lack of professionalism or still believes that it and Ms. Yama have not “really”
breached their professional responsibilities. Lozano Smith argues Ms. Yama’s
actions were careless or inadvertent, but not in bad faith, because she did not
knowingly or recklessly raise a frivolous argument or argue for the purpose of
harassing her opponent. Doc. 136 at 5:20-23. This argument is untenable given the
substantial evidence that Ms. Yama had ample notice and opportunity to correct the
mistakes which were expressly identified by Plaintiff’s counsel, yet repeatedly
submitted by Defendant’s counsel to the Court.
Lozano Smith also reiterates Ms. Yama’s specious argument that she relied on the
Hearing Officer’s characterization of the facts of the case. Id. at 5:24-27. Contrary to
this assertion, Ms. Yama cited to the administrative record and the hearing
transcript, not the hearing officer’s decision, to support her misstatements of fact.
Their claim is specious that it is the hearing officer’s fault. Lozano Smith and Ms.
Yama were not entitled to rely on the hearing officer’s errors in reciting facts, when
the available evidentiary record was to the contrary and should have been their
reference source for de novo judicial review.
Lozano Smith contends that it was entitled to rely upon the Hearing Officer’s legal
and factual conclusions based on 5 C.C.R. 308511 and, therefore, because the
Hearing Officer reached a “legal conclusion” that the accommodations provided
under Section 504 of the Rehabilitation Act of 1973 . . . fulfilled the District’s
obligations under the Individuals With Disabilities Education Act,” the law firm
engaged in no wrongful conduct by arguing that 504 accommodations satisfy IDEA.
See Doc. 150 at 2:4-7. Lozano Smith’s post hoc explanation does not accurately
describe the errors included in its Motion for Summary Judgment brief nor does it
accurately describe the Hearing Officer’s findings.
The Hearing Officer never determined “that the accommodations provided under
Section 504 of the Rehabilitation Act of 1973 . . . fulfilled the District’s obligations
under the Individuals With Disabilities Education Act.” See Doc. 150 at 2:4-7. The
Hearing Officer determined the District denied Robert a FAPE, i.e., the District did
not fulfill its obligations under IDEA. See AR 2243-2253a at 2251. The Hearing
Officer went on to say that, despite this denial of a FAPE, “Robert suffered no
education prejudice from the District’s failure,” and Robert was therefore “not
entitled to relief in the form of compensatory education.” The Hearing Officer
concluded (erroneously) that Robert was performing at the college level and was
therefore not in need of compensatory education. At no point did the Hearing
Officer find that Section 504 accommodation fulfills IDEA requirements – with
respect to Robert, or in general.
11 Lozano Smith incorrectly cited this statute simply as “section 3085 of the
California Code of Regulations,” requiring a search through the entire Code outline
and multiple sub-outlines to eventually find the statute referred to by Lozano Smith.
The correct citation is 5 C.C.R. 3085.
The offending presentation of law and facts regarding this particular issue begins
on page 30 and continues through page 31 of Defendant’s Points and Authorities in
Support of its Motion for Summary Judgment, Doc. 80. Lozano Smith states, “While
the Hearing Officer did determine that there was a ‘procedural’ denial of a FAPE in
Plaintiff’s sophomore and junior years . . ., substantively, the finding was made that
Plaintiff was provided a FAPE based on the accommodations and services provided
to Plaintiff under Section 504 of the Rehabilitation Act of 1973.” (Emphasis in
original). Lozano Smith then states IDEA promises Plaintiff no more than “an
educational benefit.” Id. at 31:10. Under a section headed “The Law” Lozano Smith
provides citations regarding the appropriate measure of compensation under IDEA
and then continues:
In the case at bar, Plaintiff was provided with services that allowed him to graduate
from high school in the standard four-year time period. The Hearing Officer, after
considering and carefully evaluating all of the evidence, determined that the Plaintiff
suffered no educational detriment and was afforded an educational benefit. The
IDEA promises him no more.
Recent special education decisions deny a remedy where, despite procedural error,
there was no adverse educational impact. South Portland School Dept., 22
IDEL4256 (Me, 2000) . . .
Procedural flaws do not automatically require a finding of a denial of FAPE. (See, W.
G. v. Board of Trustees of Target Range School District, 960 F.2d 1479, 1484 (9th
Cir. 1992). In fact, the U.S. Supreme Court defined what is meant by a ‘free
appropriate public education’ and concluded that the IDEA does not require that a
student be provided with the best available special education services or that the
services maximize each child’s potential. It also concluded that the basic floor of
opportunity provided by the Act consists of access to education which provides
some educational benefit.
Under Gregory K., the Ninth Circuit upheld the appropriateness of a District’s
placement if it was reasonably calculated to provide a student with educational
benefits. Gregory K., supra, at 1314.
Doc. 80, Def.’s Memo re Summary Judgment, at 31:7-23 (emphasis added).
Under the next section headed, “Eligibility,” Lozano Smith states:
At the hearing, Defendant did not believe Plaintiff was eligible for special education
services under any criteria of IDEA, Plaintiff’s disability of CFS was recognized as a
disability which actively limited Plaintiff’s ability to learn. As such, disability is defined
under Section 504 of the Rehabilitation Act of 1973 [citation]. Based on this
disability the District believed it provided Plaintiff a FAPE, by implementing
appropriate accommodations and services to meet his unique needs, as required by
the Rehabilitation Act. [Citation]. Nonetheless, whether Plaintiff was receiving
educational assistance pursuant to the IDEA or Section 504 of the Rehabilitation
Act, the question remains: was the student receiving an educational benefit from the
District which addressed Plaintiff’s unique needs? Here, Plaintiff’s disability has
always been symptoms based upon his chronic fatigue syndrome. His needs are no
different under the IDEA or the Rehabilitation Act of 1973. In fact, the FAPE
requirement of the Rehabilitation Act is similar to the requirements of the IDEA. The
Hearing Officer determined that Plaintiff was eligible under the IDEA and then
appropriately examined the evidence to determine whether Plaintiff received an
educational benefit or whether he was owed compensatory education services. The
facts clearly show, and the Hearing Officer correctly found[,] that [sic] District
implemented the necessary accommodations and services, and Plaintiff was
provided an educational benefit. Thus, he does not require any additional education.
Id. Lozano Smith went beyond mere vigorous advocacy for its client. It intentionally
omitted the full citation as discussed infra,12 which contained law contrary to its
position and it intentionally argued that 504 accommodations were equal to
Compliance under the IDEA.
The Memorandum Opinion and Order in the underlying action, Doc. 102, thoroughly
discusses a school district’s complete lack of discretion to not comply with the IDEA
as opposed to substituting alleged performance under Section 504 of the
Rehabilitation Act. See Doc. 102 at 159-160. This is more than coincidence – legal
interpretations hold section 504 simply cannot replace IDEA: “Both section 504 and
IDEA have been interpreted as requiring states to provide a free appropriate public
education to qualified handicapped persons, but only IDEA requires development of
an IEP and specifically provides for transition services to assist students [to]
prepare for a post high school environment. See 20 U.S.C. § 1401(a)(2). Under the
statutory scheme, the school district is not free to choose which statute it prefers.”
Id. at 1376. See also Muller v. Committee on Special Education of the East Islip
Union Free Sch. Dist., 145 F.3d 95, 105 (2d Cir. 1998) (once a student is entitled to
benefits under IDEA, the district “should have devised an IEP to meet [the student’s]
unique needs in compliance with the provisions of IDEA, and its proposed plan
under Section 504 of the Rehabilitation Act was not an adequate substitute.”).
12 “Procedural flaws do not automatically require a finding of a denial of a FAPE.
However, procedural inadequacies that result in the loss of educational opportunity,
or seriously infringe the parents’ opportunity to participate in the IEP formulation
process clearly result in the denial of a FAPE.” W.G. v. Board of Trustees of Target
Range School Dist. No. 23, 960 F.2d 1479, 1484 (9th Cir. 1992) (emphasis added).
It is difficult to comprehend what part of “no choice” Lozano Smith does not
understand when it states there is a “dearth of definitive guidance from the courts
as to whether Section 504 accommodations could under any circumstances provide
FAPE in lieu of services written into an IEP, particularly in the Ninth Circuit.”13 Doc.
150 at 3. While Lozano Smith claims justified deference to the Hearing Officer’s
decision on the issue, the section of its brief subject to sanctions does not quote an
explicit misstatement of law by the Hearing Officer that Lozano Smith repeats;
Lozano Smith independently mischaracterizes the law, including an intentional
exclusion of applicable case law stating the opposite principle. Lozano Smith
intentionally asserted 504 accommodations are legally equivalent to compliance
under the IDEA, despite clear law to the contrary. Lozano Smith’s argument that Ms.
Yama’s and its own actions are not bad faith evidences a failure to understand or
acknowledge the history of this case and to refuse to accept responsibility for what
occurred.
13 The cases cited above are not from the Ninth Circuit, however, they provide
explicit guidance on the issue and cannot be interpreted to mean anything other
than what they say. Lozano Smith’s “no guidance” argument is specious and
provides no basis for misstating the law or mischaracterizing the facts.
Lozano Smith had actual notice as early as 2001 that there were issues regarding
its potential wrongdoing in this case. On November 8 and November 26, 2001,
Plaintiff’s attorney notified Lozano Smith attorneys Edward Sklar, Elaine Yama and
Michael Smith, of their multiple transgressions with respect to misciting the
administrative record. See Graves Decl. Regarding Evidence, Doc. 151, Exh. D and
E. Plaintiff twice explicitly requested that Lozano Smith correct its misstatements to
the court and at least one time Plaintiff threatened to submit a motion for sanctions
on the issue.14 Id. Yet Lozano Smith took absolutely no action in response and
continued to misrepresent the record in its later Summary Judgment briefs.
Many of the misstatements of law and fact are incorporated in both sets of
Defendant’s briefs – and the first set was apparently not written by Ms. Yama. At
least one of the documents (cited above for misstating facts and law) was personally
signed by Michael Smith, a founding shareholder of Lozano Smith. See Doc. 87,
Def.’s Opposition re Summary Judgment at 30. Mr. Smith’s statement that he simply
“glanced at the document,” made editorial changes and signed it violates Rule 11.
The rule is designed to “eliminate the defense of personal ignorance of defects in a
paper challenged as unmeritorious.” See Zaldivar, 780 F.2d at 830 (“The Rule
admits of no exceptions to the requirement that all reasonable attorneys will read a
document before filing it in court.”).
14 Plaintiff’s warnings were directed to Defendant’s Trial De Novo briefs –
apparently submitted by Mr. Sklar.
More importantly, the problems with counsel’s conduct were referenced by Plaintiff
in his filings throughout the course of the case, yet Lozano Smith made no
investigation or attempt whatsoever to correct the problems, despite Plaintiff’s direct
requests that it do so. When Lozano Smith faxed to the District a copy of Ms. Grave’
s November 8, 2001, letter threatening sanctions if the firm did not correct its
misrepresentations to the court, Mr. Sklar of Lozano Smith, stated to the District,
“Received from Maureen Graves. Nothing really to respond to, but call me if any
questions.” See attachments to Doc. #150.
It is incomprehensible that none of the three defense attorneys of record paid any
attention to Plaintiff’s letters accusing Lozano Smith and its client of misconduct and
threatening a sanctions motion. It is equally incomprehensible that: 1) Mr. Sklar felt
there was “nothing to respond to” in Plaintiff’s letter threatening a sanctions motion
for Lozano Smith’s abusive practices; and 2) that the same misstatements made in
the Trial De Novo briefs were repeated in the Summary Judgment briefs despite
Plaintiff’s detailed complaints.
Lozano Smith’s and Ms. Yama’s culpability is aggravated by the fact that their one
and only response to Plaintiff’s accusations of misconduct came in their Reply Brief
where they assert that they have been “nothing but honest and candid with the
court.” Doc. 91 at 1:20-23. Lozano Smith and Ms. Yama reviewed the Plaintiff’s
accusations and dismissed them. Such conduct is inconsistent with their proclaimed
sincerity, characterizing the misstatements made in the briefs as “mistakes” or due
to a “misunderstanding” or “confusion” surrounding the procedures and the large
administrative record.
Lozano Smith is a purported expert in this area of law; it knows the laws, knew its
client had no legitimate legal basis for its position, and apparently believed the
Court would accept their misrepresentations and rubber stamp the Hearing Officer’s
erroneous decision.
Ignorance is no defense. Zaldivar, 780 F.2d at 830. Lozano Smith’s malfeasance
was clearly and repeatedly drawn to their attention by Plaintiff. Yet Lozano Smith
deliberately ignored the notice it received, assuming the Court would be too busy or
too indifferent to take the time necessary to find the truth.
Based on the totality of the circumstances, there is no way to interpret Lozano Smith’
s submissions of multiple misleading pleadings under the signature of no less than
three attorneys as anything other than a bad faith attempt to mislead the Court
about the facts and the law to gain the advantage of prevailing without regard to the
true facts and accurate statements of the law. Given Lozano Smith’s steadfast
refusal to address any of Plaintiff’s repeated complaints about its malfeasance
(other than to flatly deny it in one Summary Judgment brief, see Doc. 91 at 1), no
other conclusion can be drawn but that its actions were in bad faith to harass the
Plaintiff and to obstruct the ascertainment of truth in this case. That Lozano Smith is
an expert in this area of law only compounds the severity of its violations. See
Worrell v. Uniforms To You & Co., 673 F.Supp. 1461, 1465 (N.D. Cal. 1987) (“That
counsel with extensive experience in the area of labor and employment law could
assert such an erroneous view of the law regarding Title VII raises a strong
inference that there was an improper purpose behind the pleadings.”). Lozano
Smith assigned Jerome Behrens, Esq., a respected and competent member of their
firm to address the Order to Show Cause proceedings. Mr. Behrens had no
knowledge of or participation in any of the conduct nor did he have any
responsibility for the firm’s handling of the case. This, however, does not excuse the
firm’s ethical obligations.
Lozano Smith’s actions are sanctionable under Rule 11(b)(1), (3) and (4) for
submitting pleadings asserting meritless objections and false statements of facts.
Lozano Smith’s actions are also sanctionable under 28 U.S.C. § 1927 and the Court’
s inherent power, for bad faith attempts to mislead the Court, and to obstruct and
multiply the proceedings, and to harass the Plaintiff.15
Lozano Smith is being sanctioned under Rule 11 for the frivolous objections,
misstatements of fact and law contained in its Trial De Novo and Summary
Judgment pleadings. Lozano Smith is being sanctioned under 28 U.S.C. § 1927 and
the Court’s inherent power, for its bad faith steadfast refusal to correct these errors
when faced with repeated, explicit notices that it was conducting itself unethically, in
violation of its duty of truth and candor to the Court, and its efforts to harass the
Plaintiff.
15 At a minimum, Lozano Smith’s actions amount to sanctionable recklessness and
knowing conduct in that it ignored repeated warnings it was misrepresenting the
facts and in fact is was misrepresenting the facts.
E. Defendant, Bret Harte Unified School District
Defendant Bret Harte Unified School District chose not to submit its own briefs
regarding the Order to Show Cause, or to separately appear, despite it being
named in the Order to Show Cause.16 Defendant did, however, answer fifteen
interrogatories authorized by the Court and propounded by Plaintiff, which
document the District’s significant involvement in this case and actual knowledge of
and receipt of notice during the proceedings, of its attorneys’ misconduct.17
In answer to Interrogatories 3 and 13, Defendant admits it received Ms. Graves’
November 8, 2001, letter, the first of the two by Plaintiff calling upon Defendant to
stop misstating the record and to correct its misstatements with the Court. This letter
threatens a motion for sanctions absent corrective action by Lozano Smith. See
Graves Declaration Regarding Evidence, Doc. 151, Exh. G at 6 and 19. However, in
direct contradiction to its answer to Interrogatory Number 8, the District states:
I did not receive a copy of the correspondence dated November 8, 2001, from
Plaintiff’s counsel, Ms. Maureen Graves, and I was not provided that document by
Lozano Smith. Since I did not receive a copy of the correspondence from Plaintiff’s
counsel dated November 8, 2001, I did not respond to any of the allegations of
misrepresentation of fact and law contained therein.
Id. at 13. Lozano Smith has submitted fax transmission confirmation sheets showing
that it faxed and Defendant did indeed receive this letter. See attachments to Doc.
150.
16 The court raised the issue of conflict between the District and its attorneys in the
OSC matters.
17 The answers to these interrogatories were submitted by Plaintiff’s counsel. See
Graves Decl. regarding evidence, Doc. 151, Exhibit G.
In answer to Interrogatory Number 5, the District admits it read the Trial De Novo
Briefs submitted on its behalf as well as Plaintiff’s reply brief (which contains
numerous complaints about Defendant’s misrepresentations). See Graves Decl.
Regarding Evidence, Doc. 151, Exh. G at 10-11. In answer to Interrogatory Number
6, Defendant admits it read the brief but claims it did so after the brief was submitted
to the Court, and therefore, the District “did not attempt to correct any
misstatements of fact or misleading representations on factual matters.” Id., Exh. G
at 12-13. Defendant’s statement that because the briefs were already submitted to
the Court it made no effort to correct any misstatements contained in the briefs, is
an abdication of the duty of candor any party owes the court. In-house counsel
reviewed the briefs and, as an attorney licensed to practice law in California, is
under the same ethical responsibilities as Defendant’s outside counsel to see that
only truthful and accurate information is submitted to the Court.
The District, as a party, has a duty to be honest and to correct any factual errors, to
notify its attorneys to enable them to file corrections or amended papers and to
ensure the same mistakes were not repeated in future pleadings. Rule 11 applies to
parties as well as their counsel. See Rachel v. Banana Republic, Inc., 831 F.2d
1503, 1508 (9th Cir. 1987).
In answer to Interrogatory Number 9, the District admits it was provided a copy of
Plaintiff’s November 26, 2001, letter and addresses its discussion of the settlement
issues contained in this letter.18 However, the District ignores that portion of the
Interrogatory that inquires, “Please describe, in detail, the District’s review of and
response to the settlement correspondence dated November 26, 2001, and the
allegations regarding misrepresentations of fact and law contained therein.” Graves
Decl. Regarding Evidence, Doc. 151, Exh. G at 13-14 (emphasis added). The
District provides no response regarding what steps it took to correct the
misstatements of fact contained in its pleadings after a second notification from
Plaintiff on November 26, 2001. From Defendant’s evasive answer it is inferred that
the District purposefully took no steps to correct any misstatements it found in the
first round of briefs and intentionally let its counsel continue to repeat those
misstatements in the later Motion for Summary Judgment briefs.
The District took a hard line position, despite its obvious and knowing violations of
IDEA, and chose to wait until after Summary Judgment was granted against it before
it settled with Plaintiff. The District was entitled to a hearing on summary judgment
and is not being sanctioned for asserting its position on the merits of plaintiff’s
claims.
The District had an obligation to correct the many factual misstatements contained
throughout its papers, especially since it was given notice by plaintiff regarding
allegations of misconduct and because it had its own in-house attorney review these
briefs and Plaintiff’s letters. By not correcting the errors contained in the initial Trial
De Novo briefs, despite notice of such errors, the District joined the bad faith
perpetration of those falsehoods in the subsequent briefs submitted to the Court.
“Bad faith” exists, not only in the actions that led to the lawsuit, but also in the
conduct of the litigants. Roadway Express, 447 U.S. at 766.
18 The District also acknowledges receipt of this letter in answer to Interrogatory
Number 11. See id.
The only reasonable conclusion is that the District intentionally chose to ignore the
warnings it received that it was misrepresenting the truth to the Court, in an effort to
mislead the Court and to prolong the proceedings in the hope that Plaintiff would
give up. The District’s conduct rises to bad faith. The power to sanction the District
exists under Rule 11, § 1927, and the Court’s inherent authority. See Roadway
Express, 447 U.S. at 766.
The District should be sanctioned under the Court’s inherent powers for its bad faith
efforts to deceive the court by not addressing and correcting the obvious
misstatements of fact contained in its Trial De Novo briefs and by allowing these
errors, and others specified above, to be perpetuated in their Summary Judgment
briefs. This conduct was obstructive and manifestly multiplied the proceedings.
F. Nature of Sanctions
Lozano Smith has submitted declarations that it recognizes the seriousness of its
conduct in this case and has or will conduct attorney training in ethics and that Ms.
Yama has been disciplined by the firm due to her misconduct. These “voluntary”
actions are appropriate and recognized as a good faith effort to address the harm
perpetrated on the system of justice. These remedial actions are inadequate to
redress the totality of the harm visited upon the plaintiff and the legal system.
Lozano Smith, Ms. Yama and the District all engaged in egregious conduct, whether
by commission or omission. Their “solution” does not recompense Plaintiff for his
increased litigation costs caused by their malfeasance,19 or the unjustified burden
on the Court, nor provide the necessary deterrent effect.
The actions of Lozano Smith significantly increased the Court’s work on the case,
both in the effort required to identify and verify the numerous misstatements in the
pleadings in order to resolve the underlying issues on the merits, but separately to
address the ethical violations in the Order to Show Cause proceedings and this
decision.
The submissions of Ms. Yama, Lozano Smith and the District belie true
comprehension of the seriousness of their transgressions against Plaintiff, the Court
and the justice system. The District evinced no interest in these proceedings and
was intentionally unwilling to truthfully or completely answer the Interrogatories
propounded by Plaintiff under Court order. The evasive and contradictory answers
by the District indicate a complete lack of respect for the judicial process. In respect
to these Order to Show Cause proceedings, the District, which was severally noticed
as a respondent, did not even send its own independent representative or
separately address the Court’s questions about the improper conduct that was used
on its behalf in an attempt to gain advantage over the Plaintiff. The District was
represented by its own attorney in the underlying case, independent of Lozano
Smith, which is more disturbing. The District reviewed and sought to benefit from its
litigation counsel’s misconduct, and has ignored its responsibility to respond in this
proceeding. Despite noting the appearance of conflict between Lozano, Smith, Ms.
Yama, and the District in this proceeding, the District remained silent. The District
must be independently sanctioned.
19 It is acknowledged that Lozano Smith offered Plaintiff’s attorney $15,000 for
attorney’s fees to cover these costs and that Plaintiff deferred to the Court the
resolution of any monetary sanctions.
IV. CONCLUSION
The totality of the sanctioned conduct visits an unendurable burden on the justice
system in the name of misguided advocacy. It is appropriate that a public record be
made of this conduct for the purpose of deterrence, particularly as it implicates
unacceptable written advocacy and obstruction which violates rules of court and
professional conduct, forcing an opposing party and the court to spend inordinate
time addressing such issues.
For the reasons above stated, IT IS ORDERED:
1. Ms. Elaine Yama, Lozano Smith and Bret Harte Unified School District, as a party,
engaged in bad faith litigation tactics through their systematic and repeated
misstatements of the record, frivolous objections to Plaintiff’s statement of facts, and
repeated mischaracterizations of the law.
2. Under FRCP Rule 11, 28 U.S.C. § 1927, and the Court’s inherent powers, Ms.
Yama is ordered to personally pay Plaintiff and his counsel $5,000 for the increased
costs and expenses related to causing Plaintiff’s need to repeatedly respond to
Defendant’s blatant misrepresentations, throughout the four year history of this
litigation; Ms. Yama is PUBLICALLY REPROVED and ordered to attend 20 hours of
CLE ethics training in programs approved by the California State Bar Association by
December 31, 2005, and must submit proof of such training to the Court by
December 31, 2005; training received by Ms. Yama while this decision was pending
will count towards this requirement. Proof of training must be submitted when the
training is complete, not piecemeal.
3. Under Rule 11, 28 U.S.C. § 1927, and its inherent powers, Lozano Smith is
ordered to pay Plaintiff and his counsel $5,000 for the increased costs and
expenses related to Plaintiff’s need to repeatedly respond to Ms. Yama’s
misrepresentations, and briefs on which partners of the firm were appearing
counsel, throughout the four year history of this litigation. Lozano Smith is
PUBLICALLY REPROVED. Lozano Smith is further ordered to provide a minimum of
6 hours of CLE ethics training for all its associates and shareholders, in programs
approved by the California State Bar Association, by December 31, 2005, and must
submit proof of such training to the Court by January 30, 2006; training received
while this opinion was pending will count towards this requirement. Proof of training
must be submitted when the training is completed, and not piecemeal.
4. Under Rule 11 and the Court’s inherent power, Bret Harte Unified School District,
a party, is ordered to pay to plaintiff Robert Moser the sum of $5,000 for his
expense, inconvenience, and delay for its role in obstruction, delay in relief, and
unnecessarily multiplying the proceedings in this case.
The payment of such sanctions shall be made within forty (40) days following the
date of service of this decision by the clerk of court.
A copy of this decision shall be served on the California State Bar Association by
the Clerk of Court.
SO ORDERED.
DATED: January 12, 2005
Oliver W. Wanger
UNITED STATES DISTRICT JUDGE
Order
Order to Show Cause for Sanction for Attorney’s Violations
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
ROBERT MOSER,
Plaintiff,
v.
BRET HARTE UNION HIGH SCHOOL DISTRICT,
Defendant.
CIV-F-99-6273 OWW SMS
ORDER RE: SANCTIONS FOR ATTORNEY’S VIOLATIONS OF DUTY OF CANDOR
AND NOT TO IMPEDE, OBSTRUCT, OR TO VEXATIOUSLY MULTIPLY )
PROCEEDINGS
I. INTRODUCTION
This matter is before the court on an Order to Show Cause why sanctions should
not be imposed against attorneys of record Elaine Yama (“Yama”), the law firm of
Lozano, Smith and their client, Bret Harte Unified School District (“District” or
“Defendant”), following their egregious conduct in this appeal from an administrative
hearing.
II. BACKGROUND
The Order to Show Cause issued as the culmination of lengthy and contentious
proceedings involving an appeal from an administrative hearing by a Bret Harte
student, Robert Moser (“Plaintiff”). Plaintiff was a student enrolled at Defendant Bret
Harte Union High School District from 1994 – 1998. Plaintiff alleged that Defendant
denied him a free and appropriate public education (“FAPE”) under the Individuals
With Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400 et seq. See Docket
(“Doc.”) #1. On October 13, 14, 15 and 16, 1998, and January 19, 20, 21, 22, 25
and 26, 1999, an administrative hearing was heard before William Reyes, Hearing
Officer of the California Special Education Hearing Office. Plaintiff appealed the
decision of the Hearing Officer on August 27, 1999. Jurisdiction applied under 20 U.
S.C. § 1415(e)(2)©) and 28 U.S.C. § 1331. See id. at ¶2.
In 2001, Trial de Novo briefs were submitted by both parties. Docs. 20, 25, 28, 33,
34, 35 & 41. On August 20, 2001, Defendant filed a motion to dismiss the complaint
pursuant to rule 41(b) of the Federal Rules of Civil Procedure for failure to comply
with court orders. Doc. 37. Defendant also made numerous evidentiary objections.
At the November 19, 2001, hearing on the motion to dismiss, the court informed the
parties that if they wished to supplement the administrative record they must make a
motion to do so. On November 20, 2001, the motion to dismiss was denied. Doc. 53.
At a scheduling conference on December 11, 2001, the court again reminded the
parties of the proper procedure for supplementing the administrative record and a
schedule was set for motions to supplement the record. A scheduling conference
order issued December 12, 2001, which: 1) acknowledged the administrative record
was finally complete and accurate; 2) required the record be sequentially paginated
and Bates numbered; 3) set dates for the parties to move to supplement the record;
4) ordered each party submit statements of chronological material and relevant
facts and statement of disputed facts or objections to the chronological statements
of the opposing party; and 5) established the briefing deadlines for cross-motions
for summary judgment. See Doc. 55.
The June 14, 2002, Amended Scheduling Order called for any motions to further
supplement the administrative record to be filed by June 24, 2002. No party filed
such a motion, yet Defendant filed a “Further Opposition To Plaintiff’s Motion to
Supplement Evidentiary Record” on July 8, 2002. At this time the parties were
reminded to comply with the Federal Rules of Procedure and were warned that the
case had already been unduly extended over three years as a result of the parties’
inability to follow court orders or basic rules of Federal Civil Procedure.
Cross-motions for summary judgment, statements of chronological facts,
oppositions and reply briefs were filed between June and August, 2002. The
evaluation of the matter was significantly delayed due to both parties’ repeated
incorrect, irrelevant or unsupported citations to the Administrative Record in their
Chronological Statements of Facts and Defendant’s repeated misstatement of the
facts contained in the Administrative Record.
A hearing was held on August 9, 2003. On October 17, 2003, a Memorandum
Decision and Order granting Plaintiff’s motion for summary judgment and denying
Defendant’s motion for summary judgment was filed. On the same day an Order to
Show Cause issued, sua sponte, ordering Ms. Yama, Lozano, Smith and their client,
Bret Harte Unified School District to show cause why they should not be sanctioned
for misrepresenting facts and law, violating their duty of candor, and willfully and
vexatiously multiplying the proceedings, under FRCP Rule 11, 28 U.S.C. § 1927,
and the court’s inherent power.1
Briefs opposing sanctions were filed by Lozano, Smith and Ms. Yama. Briefs
supporting sanctions were filed by Plaintiff. The District did not file any separate
briefs opposing sanctions despite being ordered to show cause. A hearing was held
on January 26, 2004. Ms. Yama, counsel of record, appeared with independent
counsel, James Wilkins. Jerome Behrens of Lozano, Smith appeared on behalf of
the District and Lozano Smith. Maureen Graves appeared on behalf of the Plaintiff.
At the conclusion of the hearing, parties were given additional time to file
supplemental papers. Plaintiff was given permission to submit 15 interrogatories to
Defendant, Bret Harte Unified School District, in order to enable the court to
evaluate the level of the public entity Defendant’s participation in counsel’s
wrongdoing.
II. LEGAL STANDARDS
The power of federal judges to impose sanctions for abuses of process is quite
broad. Gas-A-Tron of Ariz. v. Union Oil Co., 534 F.2d 1322 (9th Cir.), cert. denied
sub nom. Shell Oil Co. V. Gas-A-Tron of Ariz., 429 U.S. 861, 97 S.Ct. 164, 50 L.Ed.
2d 139 (1976). The power to sanction derives from several sources: federal
statutes (including federal procedural rules), Local Rules of Court, and the District
Court’s inherent power. Local Rules of the Eastern District Court provide:
Failure of counsel or of a party to comply with these Rules or with any order of the
Court may be grounds for imposition by the Court of any and all sanctions
authorized by statute or Rule or within the inherent power of the Court.
L.R. 11-110.
1 The Memorandum Decision and Order of October 17, 2003 (Doc. 102) is
incorporated by this reference.
The decision to award sanctions is a matter within the court’s sound discretion. See
Dahl v. City of Huntington Beach, 84 F.3d 363, 367 (9th Cir. 1996); Wages v.
Internal Revenue Service, 915 F.2d 1230, 1235 (9th Cir.), cert. denied, 498 U.S.
1096, 111 S.Ct. 986, 112 L.Ed.2d 1071 (1991); Erickson v. Newmar Corp., 87 F.3d
298, 303 (9th Cir. 1996). “For a sanction to be validly imposed, the conduct in
question must be sanctionable under the authority relied on.” Cunningham v.
County of Los Angeles, 879 F.2d 481, 490 (9th Cir.) (Internal quotations omitted),
cert. denied, 493 U.S. 1035, 110 S.Ct. 757, 107 L.Ed.2d 773 (1990).
A. Rule 11
Federal Rule of Civil Procedure 11 (“Rule 11″) gives the court authority to issue
sanctions against a party whose attorney of record signs a “pleading, written
motion, or other paper” is not well grounded in fact, is not warranted by existing law,
is not made in good faith, or is brought for any improper purpose. Christian v.
Mattel, Inc., 286 F.3d 1118, 1131 (9th Cir. 2002). Imposition of sanctions is not
limited to attorneys, but may be
imposed on parties as well. Rule 11 addresses the problems of frivolous filings and
abuse of judicial procedures as a tool for harassment. Stewart v. American Intel Oil
& Gas Co., 845 F.2d 196, 201 (9th Cir. 1988); Zaldivar v. City of Los Angeles, 780
F.2d 823, 830 (9th Cir. 1986), abrogated on other grounds by Cooter & Gell v.
Hartmarx Corp., 496 U.S. 384 (1990).
The Ninth Circuit has stated:
Under the provisions of Rule 11, when an attorney signs a pleading, he [or she] is
certifying that he [or she] has read it and that to the best of his [or her] knowledge,
information and belief, formed after a reasonable inquiry, it is well grounded in fact
and is warranted by existing law or a good faith argument for the extension,
modification, or reversal of existing law, and that it is not interposed for an improper
purpose. Rule 11 further provides that if the pleading is signed by the attorney in
violation of the rule, the court shall impose . . . an appropriate sanction.
Stewart v. American International Oil & Gas Co., 845 F.2d 196 (9th Cir. 1988).2
Rule 11 creates and imposes on a party or counsel an affirmative duty to
investigate the law and facts before filing. Rachel v. Banana Republic, Inc., 831 F.
2d 1503, 1508 (9th Cir. 1987) and further obliges an attorney to dissuade a client
from pursuing specious claims, thereby avoiding possible sanctions by the court, as
well as unnecessary costs of litigating a worthless claim. Mohammed v. Union
Carbide Corp., 606 F.Supp. 252 (E.D. Mich. 1985).
Whether to impose sanctions is determined by the reasonableness of inquiry into
the law and facts, not the good or bad faith of the signatory. G.C. & K.B.
Investments v. Wilson, 326 F.3d 1096, 1109 (9th Cir. 2003); c.f. Mars Steel Corp. V.
Continental Bank N.A., 880 F.2d 928, 932 (7th Cir. 1989) (“[A] paper filed in the
best of faith, by a lawyer convinced of the justice of his client’s cause, is
sanctionable if counsel neglected to make “reasonable inquiry” beforehand.”). A
pleading, motion or other paper well grounded in fact and law cannot be sanctioned
regardless of subjective intent. Zaldivar, supra. Conversely, a party is responsible
for innocent, good faith mistakes of law or for carelessness of counsel, because
reasonably inquiry would reveal a mistake, and counsel who is careless has not
made reasonable inquiry. Lloyd v. Schlag, 884 F.2d 409, 412 (9th Cir. 1989).
2 The mandatory nature of sanctions under Rule 11 (“shall”) was changed after this
case, under the 1993 amendments to the rule. [CITE] A court may impose sanctions
under the rule for a violation but is no longer required to do so.
A filing is frivolous under Rule 11 if it is unreasonable when viewed from the
perspective of a competent attorney admitted to practice before the district court. G.
C. & K.B. Investments, 326 F.3d 1096, 1109; In re Grantham Bros., 922 F.2d 1438,
1442 (9th Cir.), Zaldivar, 780 F.2d at 831. “A district court confronted with solid
evidence of a pleading’s frivolousness may in circumstances that warrant it infer that
it was filed for an improper purpose.” Townsend v. Holman Consulting Corp., 929 F.
3d 1358, 1365 (9th Cir. 1990). Sanctions under Rule 11 are not limited to instances
in which a pleading as a whole is frivolous, or of a harassing nature. Rather,
sanctions may be imposed for improper or unwarranted allegations even though at
least one non- frivolous claim has been pled if an attorney has not conducted a
“reasonable inquiry” under the circumstances of a case. Id. at 1362-65. Monetary
sanctions may not be awarded against a represented party for a violation of Rule 11
subdivision (b)(2).
B. Local Rules of the Eastern District of California
In addition to L.R. 11-110 cited above, the Local Court Rules of the Eastern District
of California provide:
In the event any attorney subject to these Rules engages in conduct which may
warrant discipline or other sanctions, any Judge . . . may initiate proceedings for
contempt under 18 U.S.C. § 401 or Fed. R. Crim. P. 42, or may, after reasonable
notice and opportunity to show cause to the contrary, take any other appropriate
disciplinary action against the attorney. In addition to or in lieu of the foregoing, the
Judge . . . may refer the matter to the disciplinary body of any Court before which
the attorney has been admitted to practice.
L.R. 83-184(a).3
Neither the Local Rules nor the Federal Rules provide clear definition of “other
appropriate disciplinary action,” for
attorney conduct that does not warrant criminal contempt. Nonetheless, district
judges have an “arsenal of sanctions” they can impose for unethical behavior,
Erickson v. Newmar Corp., 87 F.3d at 303, including monetary sanctions, contempt,
dismissal and disqualification of counsel. Id. The Rules of Professional Conduct and
State Bar Rules of California may also be consulted. See L.R. 83-180(e) (adopting
California Rules of Professional Conduct and decisions of any Court applicable
thereto as standards of professional conduct in Eastern District Courts); see also, e.
g., Frazier v. Heebe, 482 U.S. 641, 645 (1987) (district courts have clear statutory
authority to promulgate rules governing the admission and conduct of attorneys who
appear before them).
3 The criminal contempt power under 18 U.S.C. § 401 authorizes punishment by
fine or imprisonment, at the court’s discretion, for contempt of its authority, and for
misbehavior of any person in the court’s presence “or so near thereto as to obstruct
the administration of justice.” Rule 42 punishes as criminal contempt conduct “the
judge saw or heard . . . or [ ] committed in the actual presence of the court.” Fed. R.
Crim. P. 42(b).
Under ABA Model Rules of Professional Conduct, “[a] lawyer shall not knowingly: (1)
make a false statement of fact or law to a tribunal or fail to correct a false statement
of material fact or law previously made to a tribunal by the lawyer; (2) fail to disclose
to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be
directly adverse to the position of the client and not disclosed by opposing counsel;
or
(3) offer evidence that the lawyer knows to be false.” American Bar Association
Model Rules of Professional Conduct, Rule 3.3 (5th Ed. 2003). The consequences
of violating these rules depend upon whether the violation was intentional and/or
systematic:
6.11 Disbarment is generally appropriate when a lawyer, with the intent to deceive
the court, makes a false statement, submits a false document, or improperly
withholds material information, and causes serious or potentially serious injury to a
party, or causes a significant or potentially significant adverse effect on the legal
proceeding.
6.12 Suspension is generally appropriate when a lawyer knows that false
statements or documents are being submitted to the court or that material
information is improperly being withheld, and takes no remedial action, and causes
injury or potential injury to a party to the legal proceeding, or causes an adverse or
potentially adverse effect on the legal proceeding.
6.13 Reprimand is generally appropriate when a lawyer is negligent either in
determining whether statements or documents are false or in taking remedial action
when material information is being withheld, and causes injury or potential injury to a
party to the legal proceeding, or causes an adverse or potentially adverse effect on
the legal proceeding.
6.14 Admonition is generally appropriate when a lawyer engages in an isolated
instance of neglect in determining whether submitted statements or documents are
false or in failing to disclose material information upon learning of its falsity, and
causes little or no actual or potential injury to a party, or causes little or no adverse
or potentially adverse effect on the legal proceeding.
American Bar Association Standards for Imposing Lawyer Sanctions, Standard 6.1
(1992).
Under California law, an attorney may only use methods “as are consistent with
truth, and never to seek to mislead the judge or any judicial officer by an artifice or
false statement of fact or law.” Cal. Bus. & Prof. Code § 6068(d). “In presenting a
matter to a tribunal, a member: (A) Shall employ, for the purpose of maintaining the
causes confided to the member such means only as are consistent with truth; (B)
Shall not seek to mislead the judge, judicial officer, or jury by an artifice or false
statement of face or law; ©) Shall not intentionally misquote to a tribunal the
language of a book, statute, or decision; (D) Shall not, knowing its invalidity, cite as
authority a decision that has been repealed or declared unconstitutional.” California
Rules of Professional Conduct, Rule 5-200 (1992).
C. 28 U.S.C. § 1927
Section 1927, Title 28 United States Code, provides: “Any attorney . . . who so
multiplies the proceedings in any case unreasonably and vexatiously may be
required by the court to satisfy personally the excess costs, expenses, and
attorneys’ fees reasonably incurred because of such conduct.”
Section 1927 “applies only to unnecessary filings and tactics once a lawsuit has
begun.” In re Keegan Management Co. Sec. Litig. (Keegan Management Company
v. Moore), 78 F.3d 431, 435 (9th Cir. 1995). For sanctions to apply under 1927, the
court must make a determination of recklessness. See Fink v. Gomez, 239 F.3d 989
(9th Cir. 2001) (“[R]ecklessness suffices for § 1927, but bad faith is required for
sanctions under the court’s inherent power.”); see also, B.K.B. v. Maui Police Dept.,
276 F.3d 1091, 1107 (2002). Section 1927:
[o]nly authorizes the taxing of excess costs arising from an attorney’s
unreasonable and vexatious conduct; it does not authorize imposition of sanctions
in excess of costs reasonably incurred because of such conduct.
Similarly, cases that have considered the district court’s inherent power to sanction
attorneys for litigating in bad faith have related such sanctions to the amount of fees
incurred by the opposing party, and have not based sanctions on increased costs
experienced by the court.
Blodgett, 709 F.2d at 610-11 (citations omitted). Section 1927 sanctions cannot be
imposed on a non-attorney. Zaldivar, 780 F.2d at p. 831.
D. Inherent Authority
While the district court should issue sanctions under a rule or statute if possible,
Lockary v. Kayfetz, 974 F.2d 1166, 1170 (9th Cir. 1992); it is not so limited and may
rely on its inherent powers to sanction misconduct. Id.; In re Akros Installations, Inc.,
834 F.2d 1526, 1532 (9th Cir. 1987).
A sanction imposed under the court’s inherent power requires a specific finding of
bad faith. Roadway Express, 447 U.S. 752, 767 (1980); Primus Auto Fin. Services v.
Batarse, 115 F.3d 644, 648 (9th Cir. 1997); Yagman v. Republic Ins., 987 F.2d 622,
628 (9th Cir. 1993) (In sanctioning counsel, “[c]ourts may not invoke [inherent]
powers without a specific finding of bad faith”); Zambrano v. City of Tustin, 885 F.2d
1473, 1478 (9th Cir. 1989) (“To insure that restraint is properly exercised, we have
routinely insisted upon a finding of bad faith before sanctions may be imposed
under the court’s inherent power.”) Bad faith “does not require that the legal and
factual basis for the action prove totally frivolous; where a litigant is substantially
motivated by vindictiveness, obduracy, or mala fides, the assertion of a colorable
claim will not bar assessment of attorneys’ fees.” Mark Ind., Ltd. v. Sea Captain’s
Choice, Inc., 50 F.3d 730, 732 (9th Cir. 1995) (internal quotation marks and
citations omitted).
Under the court’s inherent authority, sanctions may be imposed on an attorney or a
party to the suit. See Roadway Express, 447 U.S. at 766.
III. ANALYSIS
Lozano, Smith’s, Ms. Yama’s, and the District’s actions in these proceedings have
greatly increased the work of Plaintiff’s attorney and the Court itself, as well as
delayed the just resolution of the case. The objectionable acts fall into four general
categories: (1) bad faith, frivolous objections, (2) misstatement and
mischaracterization of facts contained in the administrative record, (3)
misstatements of the applicable law, and (4) intentional obstruction of the speedy
and just resolution
of the dispute. Taken as a whole, they show that Defendant and its counsel made a
concerted effort to distort, if not outright deceive, the court when shaping the court’s
view of both the record and applicable law in the case. By consistently presenting
untruths and half-truths, Defendant and its counsel obstructed the fair, just, and
expeditious resolution of the proceedings. These actions were undertaken in
violation of, and with reckless disregard for counsel’s duties to the court. When
evaluated as a whole, the actions of counsel and the District amount to bad faith
and are sanctionable.
A. Examples of Counsel’s Actions
The Order to Show Cause detailed some, but not all, of the many frivolous
objections and misstatements of fact contained in Defendant’s Motion for Summary
Judgment briefs.4 See Doc. 101, October 17, 2003, Order to Show Cause for
Sanctions. Counsel has acknowledged these errors, but claims they are innocent
mistakes or misunderstandings. The District has not responded in any way.
1. Frivolous Objections
(1) The District “disputes” Plaintiff’s statement that “Robert enrolled at Bret Harte
Union High School District for 9th Grade” in August 1994. Defendant refuses to
admit this “undisputed fact” because, “Plaintiff fails to cite administrative record.”
4 Many of these same misstatements are contained in Defendant’s Trial De Novo
brief as well. See Docket No. 25.
Regardless of Plaintiff’s failure to cite the administrative record, it is indisputable
that Robert enrolled at Bret Harte for 9th grade.
(2) Plaintiff testified that an accommodation made by Ms. Nanik, “actually increased
Robert’s workload by shifting from multiple choice to writing assignments.” UF 96,
Doc. 78. Defendant objects to Plaintiff’s undisputed fact: “argument and conclusion.
Misstates testimony. J. Moser did not testify that Plaintiff’s workload was ‘shifting
from multiple-choice to writing assignments.’”
Defendant’s objection is frivolous. Mrs. Moser testified exactly to that effect: Q
[Graves]: “when Ms. Nanik decided to have him do something else, other than
taking the test at home, did this involve more writing on Robert’s part?” A[Mrs.
Moser]: “Yes.” AR 1882:17-20. A[Moser]: “And then, they wanted to have Robert,
instead of taking the test home, to read the whole chapter, which is fine. That’s what
he did. But then, to answer all of those questions on the back, which was more than
just taking a test, you know, ‘because you have like an A or B. It’s A, B, or C choice.
So, it was a lot easier for him to do that. It took a lot more time and energy, which he
really didn’t have, to be doing numerous questions and answering all that long
stuff.” AR 1882:4-11.
(3) Defendant’s objection to undisputed fact No. 98 once again misstates the
obvious. The document speaks for itself. Defendant complains “plaintiff’s references
to ‘long-standing frustration’ and ‘depression’ and ‘hired an advocate’ are
statements not referenced within the document. The document clearly references
Robert’s frustration and depression as well as Mrs. Moser’s frustration. The
document does not mention the hiring of an advocate.
The document is a letter sent by Mrs. Moser on June 17, 1997, to Superintendent
Wilamek (received June 18, 1997), Ronald Lewis, Jan Edwards, Principal of Bret
Harte High School, and the Bret Harte School Board. Mrs. Moser’s letter specifically
states Robert was depressed and refusing to participate in class due to this
depression, and his frustration with his teachers. AR 3335. Mrs. Moser expressed
her frustration with the school directly: “as far as I can tell, the teachers and
administration have done absolutely nothing they have been asked repeatedly to
do, nor have they done anything to help my son.” Mrs. Moser concludes:
Just for your information, Robert is not a ‘lazy’ student, just trying to get out of
work. In fact, in spite of his illness, he has gone out of his way to take entry tests in
math and English for Columbie College, and, he has passed both. He is going for
surgery Thursday and even though he should be laid up for 14 days (not to mention
8 weeks of not being able to move his torso), he is still taking classes.
To say I am disgusted with the treatment we have received is definitely an
understatement. We had to change schools, move our home, and have had
continuous conflict with teachers and administration [sic] who are not willing to go a
little out of their way to help a student who is truly ill! Why weren’t we told from the
beginning that, because of Robert’s illness, he had a right to be transported to
school? Why weren’t we told about the ‘504′ plan? Why are the teachers and
administration now so difficult and unwilling to cooperate?
I am asking [for] your help. My son and family have been through enough. Please
intervene and give my son the help he needs and is entitled to his last two years of
high school. If we do not receive a satisfactory response and solution by June 30, I
will file a complaint with the O.C.R. [Office of Civil Rights] and the appropriate State
Department.
AR 3334-3336; 3337-3339.
(4) A diagnosis of chronic fatigue syndrome and depression is written on a doctor’s
note dated 9/12/97. Plaintiff contends this note was forwarded to the District. UF
97a, Doc. 78. Defendant objects to whether or not this diagnosis was actually
forwarded to the school: “argument and conclusion. Misstates evidence. Fails to cite
record.” Id.
Defendant makes no statement as to whether or not the District actually received
the doctor’s note.
Defendant’s objection is inexplicable. The 504 accommodation plan states explicitly,
“Robert will meet with Mrs. Haskell weekly on Fridays from 10:00 to 10:30 a.m. They
will confer on his progress, and discuss any academic difficulties he may be having.”
(5) Defendant objects to Plaintiff’s undisputed fact #15, which states: “In eighth
grade, without an assessment or IEP, it was noted on a parent conference report
that Robert would receive “special ed assistance from 1:15-2:00 in Ms. Johnson’s
room.” (Page 3783). Defendant’s objection, “Misstates evidence. Page 4368 IEP
dated 1/13/93 specifically states that ‘although student does not qualify for special
education services, he will participate in after school study hall three times a week
for homework.”
Defendant’s objection is unintelligible in context and meritless. The cited form in
Plaintiff’s undisputed fact, AR 3783, states exactly what Plaintiff contends it states:
“Vallecito Union School District Parent Conference Report” dated 12/93 states “4.
Special ed assistance from 1:15-2:00 in Ms. Johnson’s room.” The form was
completed prior to the Triennial
IEP review where Robert was exited from special education. The IEP form cited by
Defendant, dated one month later, on 1/13/93, “Formal tests do not suggest the
presence of a processing disorder; does not qualify for special education; Robert
will participate in after school study hall 3x/wk for homework.”
The objection obstructs the court’s undisputed fact finding process.
(6) Defendant objects to Plaintiff’s undisputed fact #16, “Robert saw a physician
who diagnosed chronic fatigue syndrome.” (Page 4259). Defendant’s objection:
“Disputed. Page 4259 is a doctor’s notes [sic] which is signed by the doctor on 6-21-
95. Also, see Plaintiff’s Fact No. 58, which references page 3383 (the same
document as 4259), and indicates the appropriate date of 6-21-95.
Defendant’s objection is confusing at best, misleading at worst. The documents
cited (AR 4259 and AR 3383) both have 8/5/95 as the date “was seen at this office
on” and the diagnosis “Chronic Fatigue Syndrome.” Under “other” it states, “unable
to participate in PE from ‘95 through ‘96.” The document is signed by the physician,
Dr. Lake, on 6/21/95. Plaintiff’s Undisputed fact lists 8/94 as the date Robert saw
the physician, who diagnosed CFS. Both copies of the document support this
statement. The fact that the doctor signed the note in June of 1995, to provide an
excuse from P.E. has nothing to do with the fact that Robert was seen in August of
1994 and diagnosed with Chronic Fatigue Syndrome at that time, as indicated on
both copies of the doctor’s note. Defendant’s objection to the fact as “disputed” is
obstructive, the document speaks for itself;
Defendant’s reference to when the note was cited is a red herring.
(7) The District “disputes” Plaintiff’s statement of undisputed fact #21, Doc. 78, that
“an assessment was conducted” on 9/10/94. Defendant refuses to admit this
“undisputed fact” because, “Plaintiff fails to cite administrative record.”
It was unnecessary for Plaintiff to cite the administrative record because it is
indisputable that an assessment was conducted in Sept-Oct of 1994 and that fact
was best known to the District. This is a bad faith, unjustified objection.
(8) Defendant objects to part of Plaintiff’s undisputed fact #27 which states: “9-10-
94 The ‘concentration, attention span, memory problems of a diverse kind’ and
diffuse processing problems common in narcolepsy were not explored.” (Page
745/line 7 – page 1746/line 21). Defendant’s objection: “argument and conclusion:
misstates testimony of Dr. Patterson, in which there is no reference to ‘The
concentration, . . . were not explored.’”
Again, Defendant’s objection is totally without basis. The cited testimony explicitly
includes the sentence referenced by Defendant:
Graves: I want to um, I’m not sure whether you said what you meant, so I want to
make sure that whether, what you meant. I think you said people with narcolepsy
often have problems with memory and difficulties and things [unintelligible]. My
question was about head injury -
Dr. Patterson: – yeah
Graves: – is that what you are talking about -
Patterson: – and head injuries have the same characteristics. But I was about to
say, and in Robert’s case, uh, he was noted in, in an early assessment as having a
visual memory problem. And um, they really didn’t do a lot of definitive testing from
memory in, in any of the assessments. But it, it is not unusual in kids with head
injuries to find, attention-span difficulties, concentration difficulties, uh, memory
types of difficulties. And those are not memory difficulties that are necessarily
showing up on Wechsler Scales. In other words, you need definitive tests for that,
sometimes what are called neuropsychological tests . . . but no visual testing for
visual memory per se is, was, was done. No -
Graves: – [unintelligible] California Learning Test is an auditory memory?
Patterson: Yeah, auditory memory, yes that’s correct. And so, in, in this particular
case, that would be consistent with brain injury and we’ve never had a neuro-psych
battery administered and we’ve never even had a neuro-psych screen
administered, so we don’t really know but that’s not a typical independence of the
narcolepsy. But many of the same things are found in narcoleptics; concentration,
attention span, memory problems of a diverse kind and sometimes there’s this
deffuse [sic] problem where they have processing problems but it’s hard to put a
definitive label on what it is. It’s a deffuse [sic] neuro-cognitive or neuro-
developmental delay.
(9) Defendant objects to Plaintiff’s undisputed fact #30 which states: “10/25/97
doctor care e-mails, the special education director, testified that ‘it’s very difficult to
tell’ from this document whether Robert was being found eligible for special
education (page 48/line 14 – page 51/210). Defendant’s objection: “Misstates
testimony as cited. K. Mill’s testimony states: ‘it looks like he does not [qualify]
because he’s going to participate in a regular program on a full-time basis.’ See K.
Mills’ testimony, page 48:20-21: ‘I don’t see that he’s determined eligible on this
document.’ See K. Mills’ testimony, page 49:1-17; ‘it doesn’t discuss discrepancy . . .
it seems to infer that its lower than expected. But it doesn’t indicate a discrepancy.’
See K. Mills’ testimony, page 50:3-9[.]”
Defendant’s objection is frivolous. The first two lines of the cited testimony, AR 48:
14-16, explicitly state:
Graves: Okay. Is it your understanding in this IEP meeting Robert was found
eligible or ineligible for Special Education services?
Mills: It’s very difficult to tell.
(10) In Defendant’s objection to Plaintiff’s undisputed fact #31, Defendant restates
the untrue statement that “Robert had not yet been diagnosed.”
The citation provided by Plaintiff as his proposed undisputed fact #31 objected to by
Defendant is AR 4273, Defendant’s IEP report, dated 10/25/94, which states, “Dr.
says he now has chronic fatigue syndrome.” See additional discussion regarding
Ingrid Olson Miller’s testimony that she had the diagnosis as of the IEP meeting
again via her conversation with Robert’s doctor in November ‘94, supra, at p. 11
(N.). The same can be said for Defendant’s frivolous objections to Plaintiff’s
undisputed facts #32 and #33.
These objections deterred the finding of genuinely undisputed facts.
(11) Defendant objects to Plaintiff’s undisputed fact #38, which states, “10/25/94
Robert’s mother was understandably confused by the October 1994 process,
seeing Robert as ‘semiqualified,’ but not ‘quite,’ and thinking the plan was to ‘see
what happened.’ (Page 1865/line 17-27). Defendant’s objection: “argument and
conclusion. Misstates testimony of J. Moser.”
Defendant’s objection is frivolous. Mrs. Moser’s testimony says exactly what is
quoted and cited:
Moser: Uh, yeah, they did, they tested him and uh, he semi-qualified, he kind of
qualified, but they didn’t think he, they didn’t think he quite qualified. I’m not really
sure, other than that I wanted to get whatever service, like he had back when, uh, in
Oak Grove, . . . so, I wanted some kind of service like that, but they said he really
didn’t qualify, so, we just had the [sic], see what happened.
(12) Bret Harte “disputes” Plaintiff’s statement that “Robert was a regular education
student at Arnold High School, a very small and remotely located high school, which
featured behaviorally challenged students and no special education staff.”
Defendant refuses to admit this “undisputed fact” because, “Plaintiff fails to cite
administrative record.”
Regardless of Plaintiff’s failure to cite the administrative record, it is indisputable
that Robert enrolled at Arnold High School his second semester and that Arnold was
a “continuation” type high school for troubled students and had no special
education staff.
The above 13 citations are only a few examples of Defendant’s and its attorneys’
frivolous, vexatious, and obstructive objections to Plaintiff’s statement of undisputed
facts. Defendant and its attorneys continued to make similar frivolous objections
throughout their “amended response and opposition to Plaintiff’s chronological
statement of facts.” Doc. 78. The overall effect of Defendant’s and counsel’s
conduct was to impede and meritlessly increase the work of the Court in the truth
ascertainment process.
2. Misstatement and Mischaracterization of Facts Contained in the Administrative
Record
(1) Defendant contends “Mrs. Moser only wanted transportation, tracking of
progress and some counseling.” UF 48 & 50, Doc. 72. Defendant contends that “At
no time did Mrs. Moser indicate to Mr. Smith that she wanted more
accommodations.” UF 57, Doc. 72.
Mr. Smith’s testimony contradicts Defendant’s claim.5 Mr. Smith testified he believed
the accommodations were sufficient, but, in answer to a question, acknowledged
that he knew Mrs. Moser would not “feel that [Robert] was getting . . . enough
accommodations.” AR 1458:9-19.
(2) Defendant alleges Ms. Pape-Reynoso, Plaintiff’s sophomore learning director,
“communicated with Plaintiff’s teachers about his special physical health needs and
the accommodations required as to assignments.” UF 53, Doc. 72.
Ms. Pape-Reynoso’s testimony contradicts Defendant’s claim:
Q: About how often would you say you . . . spent working with him [Robert] through
the course of the year?
A: I didn’t see Robert very often. Typically, it was a phone call from home
requesting work because he was out and it was coordinating with teachers.
AR 917: 16-22.
Q: Do you recall being . . . given anything to read about Chronic Fatigue
Syndrome?
A: At the . . . student study team meeting, Sheila Silcox did . . . share information . .
. and there was certainly a long discussion . . . in terms of how that would play out.
And, and what kind of support he would need.
Q: . . . And, was anyone going to come out of that meeting and share this
information with Robert’s regular education teachers to your knowledge?
A: Someone probably was, I can’t tell you who that person was. It wasn’t me.
Q: Did teachers talk to you about the Chronic Fatigue Syndrome diagnosis during
Robert’s sophomore year?
A: Usually the contact had more to do with, ‘where is he?’ ‘Here’s the work for him.’
‘Mom said she was coming to get the work.’ ‘She didn’t come.’ ‘Where is it?’ and
those kinds of things.
AR 920:8-26, 921:1-4.
5 Mr. Smith is a school counselor for Defendant. 22
(3) Defendant alleges the school counselor, Mr. Smith, met with Robert “more than
a couple of times a month.” Doc. 72 ¶54 at 16.
Mr. Smith’s testimony shows this is a misrepresentation. Mr. Smith ultimately testified
that he met with Robert several times, “probably not more than –- umm — a couple
of times a month.” AR 1450:14-15; Doc. 72 ¶54 at 16. Mr. Smith testified that Robert
“would never initiate” a meeting and that Mr. Smith himself initiated meetings with
Robert “a couple times a semester. But I can’t remember exactly.” AR 1450:14-26;
Doc. 72 ¶54 at 16.6
(4) According to Defendant, “Mr. Smith, the school counselor, and the learning
director, Saundra Wimberly, tracked Plaintiff’s progress [in 11th grade] . . . Wimberly
testified that Plaintiff would have been able to get an ‘A’ if all his ‘modified
assignments’ had been turned in and judged on their own merit.” Doc. 72 ¶¶71-72
at 20 (disputed) citing Wimberly, AR 133:11-24; Smith AR 1427:18-21; Evaluation
Reports, AR 4205-4209.
These assertions are contradicted by the record. Learning Director Wimberly
testified that her first contact with Robert was at the end of 11th grade, in May-June,
when she mailed out an academic probation letter. AR 133:12-26. Ms. Wimberly
testified she had no knowledge at that time about Robert’s CFS or why Robert failed
two classes and that she “probably” had no further contact with Robert “until the
following year.” AR 134:4-135:2.
6 This blatant misstatement first appeared in Defendant’s Trial De Novo Brief and
was specifically pointed out to Defendant by Plaintiff in his Reply Brief. See Doc. 25
and 28. Ms. Yama’s explanation that this was merely a “mistake,” repeated after
having it specifically pointed out to her, is untenable.
Regarding grading, Ms. Wimberly’s testimony is cited incompletely which creates a
false impression. Her complete testimony shows she really did not know how Robert
was graded:
A: . . . and my understanding was that if Robert . . . was assigned an essay, for
example, at the time, you know, there were no time constraints on it as to due date,
then it would be judged on its own merit and would be possible to earn an A on that
assignment and because he was doing lesser work than the other students, my
understanding was that he would still be able to earn an A based on the number of
assignments that he completed and the quality of the assignments.
Q: Do you recall any explicit discussions of this question of how the grading will
work before yesterday?
A: No, I don’t. What I remember is that . . . though it was never expressed directly,
that the quality of the work is what counted.
Q: Do you recall . . . do you know whether in the final calculation of grades in each
class, were teachers looking at what percentage of the general assignments Robert
had completed, or were they looking at what percentage of his assignments he
completed, or do you know?
A: In some cases, I don’t know. In some cases, I do . . . .
AR 393:3-25, 394:1-2.
Q: And what about the other teachers? Do you know how they were handling the
situation?
A: The best that I can tell you is that I know that they eliminated assignments, so I
made the assumption that they were grading only on the material that he was
assigned.
Mr. Smith’s testimony does not support Defendant’s contention that Mr. Smith
“tracked Plaintiff’s progress” during Robert’s 11th grade year:
A: 97/98 [Robert’s 12th grade] I would have been off completely, 96/97 [Robert’s
11th grade] I was on partial . . . time – I think it was 50 percent . . . I was only her a
certain number of hours a week and I was working mornings . . . and I was seeing
only a small percentage of the typical load that I had.
Q: And the year before that [Robert’s 10th grade, 1996/1997], were you also on
some kind of [unintelligible]?
AR 1427:2-17.
The cite given by Defendant’s attorneys to support Defendant’s contention that Mr.
Smith tracked Robert’s progress during his 11th grade year, actually discusses
Robert’s 10th grade year:
Q: And from 1994 until the end of the 1997 spring semester, did you have the
same position throughout that time?
A: [ ] as far as my counseling responsibilities, pretty much. [] Full-time counseling
and, [], I had some administrative responsibilities (unintelligible) extra duty things
and nighttime things, and all the things that we get to do that are so much fun. [ ] To
help manage lively, young people.
AR 1427:18-24.
(5) The district argues “Section 504 accommodations were provided to Plaintiff
[prior to 12th grade]. Although they were written down and implemented for the past
several years, they were not ever written on a formal 504 Service Plan.” UF 102,
Doc. 72.
The District’s argument is directly contradicted by the evidence it cites in the record;
Superintendent Wilamek did not testify that accommodations were “written down and
implemented for several years.” Superintendent Wilamek testified:
[I]t was my understanding at the time I wrote this letter, that some accommodations
had been made for him. I wasn’t sure whether a complete 504 plan had been written
since the person who was employed in the district was on leave of absence from the
district, so I don’t know what had taken place, and I couldn’t find a formalized 504
plan, because usually there’s a copy of them in my office. So I didn’t find one . . . . I
knew that we made accommodations as far as graduation requirements and
transportation, but I didn’t know what else had been done except that I do recall
having a conversation with a counselor asking to make sure that accommodations
were made in the classroom, etc. . . . but since I couldn’t find [a 504 plan], I decided
we’re going to do it again and do it by the book.
AR 308:1-18.
(6) Defendant states Plaintiff’s English teacher, Vicki Oneto, “provided many
accommodations, including . . . tape recording of answers . . . .” Doc. 72, UF 136.
Ms. Oneto testified:
Q [Stephens]: What kind of adjustments did you make? A [Oneto]: . . . One time he
made a tape recording of [ ] identifications.
(7) Defendant contends “the IEP team met to discuss Plaintiff’s individual transition
plan.” Doc. 72, UF 145 citing ITP plan, AR 4031-4035.
The IEP team and the ITP meeting participants were different. The ITP meeting did
not include Dr. Trotter (school psychologist), Deborah Wright (Robert’s advocate),
any regular education teacher, nor any administrator. The ITP form shows the
following five people in attendance (via their signatures): Robert Moser, Patty
Haskell (resource specialist); Glenda Kinnear (Vocational Tech), Mrs. Moser, and
Sandra Wimberly (Learning Director). AR 4033; AR 2933. By comparison, the
October 6, 1997, IEP team meeting included: Mrs. Moser, Dr. Trotter (School
Psychologist), Mr. Wilamek (Administrator/Superintendent), Mr. Randall (Regular
Education Teacher), Dr. Mills (District Director
of Special Ed.), Ms. Haskell (Resource Specialist), Ms. Wimberly (learning Director)
and Ms. Wright (Robert’s Advocate). AR 4084. The IEP team did not meet to
discuss Robert’s transition plan. The October 6 IEP form puts off discussion of
Robert’s transition until two months later. See AR 4083.
(8) Defendant contends Glenda Kinnea, Vocational Technician, “met with Plaintiff
one hour to 45 minutes one time per week to discuss his interests, refer to
department of rehabilitation, and obtain work experience.” Doc. 72 UF 147 citing
Kinnear AR 600:23-27; 601:1-6; 604:14; 605:23-27; 606:1-6; 608:1-10.
Defendant misrepresents its own witnesses’ testimony:
Q [Graves]: Can you describe your involvement with Robert Moser?
A [ Kinnear]: I didn’t have a lot of involvement with Robert. I was brought into an
IEP meeting for him and, I think, it was January. I’d have to check my records. . . . I
spent, I would say from January of 1997 until he graduated maybe a total of [ ] an
hour and 45 minutes with him. And that includes what’s called an intake meeting with
the department of rehabilitation counselor and an exit meeting with the department
of rehabilitation counselor.
AR 600:23-27, 601:1-3 (emphasis added).
(9) Defendant asserts that “on January 13, 1998, the IEP team met to add two
periods a day to Plaintiff’s schedule for study skills to help with assignments.” Doc.
72 UF 159 (disputed).
There is no record of a January 1998 IEP team meeting to address Robert’s
schedule. The IEP addendum, AR 4001, is dated 1/13/98. The IEP addendum form
states, “Considered a part of the IEP written on ‘10/6/97.’” AR 4001 (10/6/97 is filled
in). The following changes are described on the form, “add two periods a day, 48
minutes a period, five days a week for study skills to Robert’s schedule. This
change will begin at semester 10/98. Continue with goals from the IEP 10/6/97.” AR
4001. The addendum is signed by Mrs. Moser. Ms. Wimberly (listed as
“administrator”) signed the addendum on 1/16/98. Ms. Haskell signed the
addendum on 1/13/98. Ms. Oneto signed the addendum and did not include a date.
See AR 4001. Three school officials signed this form, not the entire IEP team. The
IEP team which met May 28, 1998, consisted of: Mrs. Moser, Robert Moser,
Superintendent Wilamek, Mr. Randall (math teacher), Ms. Haskell (Resource
Specialist), Scott Black (Department of Rehabilitation), Nancy Stephens (District’s
Attorney), Ms. Wimberly (Learning Director), Ms. Graves (Plaintiff’s attorney), Sonya
Bach (nurse), and Dr. Mills (District’s Special Education Director). Mrs. Moser
testified that the schedule change did not occur through an IEP meeting, instead
she “met with Patti [Haskell] in . . . the classroom.” AR 1910:6-12. Ms. Haskell’s
handwritten notes indicate that the schedule change was made unilaterally: “mom
asked about an hr a week. I said the IEP was 30 minutes a week and we would
change that to 1 hr a day [.] [illegible] mom about addendum to change to 48
minutes a day five x a week[, mom] wants update on classes. Sent home addendum
for signature.” AR 3998.
(10) An IEP “exit meeting” was convened on May 28, 1998. Doc. 72 UF 175.
Defendant claims the IEP team determined Plaintiff had met all IEP goals and
objectives. Doc. 72 UF 175.
Page three (of five) of the 5/28/98 “exit” IEP report contains a copy of the 10/6/97
IEP plan “goals and objectives.” Handwritten notes, completed by Patty Haskell,
show Robert had not met 3 of the 5 objectives listed under the “study skills” goal
section. AR 3834. However, the very next page (#4 of 5 in 5/28/98 IEP report), a
blank version of the 10/6/97 “goals and objectives” page has the sentence “district
believes goals and objectives have been met” scrawled across the page. AR 3835.
At best, Defendant misstates the record by only including one of two contradictory
sections of the exit IEP report.
(11) Defendant alleges Plaintiff provided a diagnosis of narcolepsy “after
graduation.” Doc. 72 at ¶186.
The District had notice of the narcolepsy diagnosis on May 28, 1998, as noted on
the IEP “health update” dated May 28, 1998. AR 2779: “Health concerns:
narcolepsy, recently diagnosed – to be confirmed;” signed by school nurse Sonia
Bach.
(12) Defendant’s Undisputed Fact #7 states, “On April 19, 1989, an IEP team
determined Plaintiff was eligible for special education services by a resource
specialist for 1 hour per week through the 5th grade.” (Emphasis added). IEP pp.
4395-4397; IEP May 1991, pp. 4387-4394.
The IEP at AR 4394 specifically states Robert is to see the resource specialist “up
to 60 min daily,” not once per week.
(13) Defendant’s Undisputed Fact #8 states, “In 6th grade, Plaintiff’s services were
reduced to 45 minutes” citing IEP, May 1992, pp. 4379-4381.
AR 4379 states RSP (Resource Services) beginning May 28, 1992, ending January
1993 “one 45 min session 5x each week in written language.”
(14) Defendant’s Undisputed Fact #29 states, “During this IEP meeting, Mrs. Moser
stated that Plaintiff’s physician was considering a diagnoses of chronic fatigue
syndrome. Nurse was to communicate with doctor regarding physical condition,”
citing IEP 10/25/94, 4273; Olsen-Miller 737:17-25; 738:9-11; Harrison 1293:12-13;
Sylcox 854:15-17; Olsen-Miller Notes, 3825-3826. The gist of this assertion was that
no diagnosis of chronic fatigue syndrome had been made as of the October 1994
IEP meeting.
Defendant’s own 1994 IEP report, written evidence and hearing testimony contradict
its claim. The IEP states: “Robert has a history of mono – Dr. Says he now has
Chronic Fatigue Syndrome – nurse will communicate [with] Dr. re: his physical
condition.” AR 4273. Nurse Silcox testified that, at the October 1994 IEP meeting
she believed Robert had been diagnosed with CFS and was eligible for special
education. AR 854:15 855:14. Nurse Silcox wrote a letter to Robert’s doctor, Dr.
Lake, on November 1, 1994, which states:
I am writing you on behalf of Robert’s teachers who continue to be concerned
about Robert’s apparent tiredness and continued lack of interest in any activity –
physical or mental.
I was concerned that he [Robert] might be depressed until I talked with his mother
and she explained that he had mononucleosis and is now diagnosed with Chronic
Fatigue Syndrome. Would you please send us more information on this diagnosis
and prognosis . . . .
If you would rather call than write me please do. Thank you for your help.
AR 4270.
According to Nurse Silcox, she understood Robert to have CFS at the beginning of
his freshman year:
Q: And when he [Dr. Lake] called, do you recollect specifically that he said Chronic
Fatigue Syndrome or did he say they were doing further testing?
A: He said Chronic Fatigue Syndrome. Questions by Defendant’s attorney, Ms.
Stephens, AR 872:21-24.
Q: At this point, was he [Dr. Lake] finished with his testing or was he, was the
diagnosis still in progress?”
A: As far as I knew, the diagnosis was inclusive. That he [Dr. Lake] had decided
that was his diagnosis.
Questions by Defendant’s Attorney, Ms. Stephens, AR 873:22-27. Plaintiff’s
attorney, Mrs. Graves, elicited the same response:
Q: So, when you were speaking with him [Dr. Lake], were you, under the
impression that Robert did have Chronic Fatigue Syndrome:
A: Yes.
AR 880:2-4. Nurse Silcox considered her November, 1994 telephone conversation
with Dr. Lake sufficient documentation of the diagnosis:
Q: In your letter, do you ask him [Dr. Lake] for a written diagnosis or did you tell
him that a phone call would be fine as well?
A: I have found that doctors sometimes felt that [the phone] was much more
expedient and with documenting what he said over the phone, I felt that was
sufficient . . . .
Q: And, did you push him to put something in writing at that point?
A: No.
AR 880:5-22.
Plaintiff points out that in Defendant’s June 21, 2001, Brief at p. 4:22-24 addressing
whether Plaintiff’s CFS was being “considered” or was actually diagnosed, in a
Further Brief dated August 20, 2001, the word “inclusive” was changed to
“inconclusive,” which misrepresented the status of the CFS diagnosis.
(15) Defendant’s undisputed fact #31 states, “Subsequent to IEP meeting, Nurse
Silcox contacted Dr. Lake regarding Plaintiff’s medical condition and information on
diagnoses or prognoses concerning chronic fatigue syndrome. In addition, Nurse
Silcox discussed with family regarding vitamin supplements. Ms. Moser indicated she
was not interested in vitamin therapy. Defendant’s Undisputed Fact #32 states, “In
November 1994, Nurse Silcox spoke with Mr. Lake who indicated that he was
running a few more lab tests on Plaintiff to make sure he was not anemic. Dr. Lake
also indicated that testing of Plaintiff for mononucleosis was not conclusive and that
he was continuing testing and the diagnosis was still in progress. They also
discussed vitamin therapy.” Letter, p. 3393; Silcox 874:1-12. Defendant’s
undisputed fact #34 states, “district going to provide whatever supports possible
until Mom got diagnosis.” Defendant’s undisputed fact #35 states, “staff was
provided information regarding chronic fatigue syndrome.” Doc. 72.
The statements taken together show Defendant was attempting to misleadingly
imply that the CFS diagnosis was still in progress. The letter and Nurse Silcox’s
testimony were about the mononucleosis diagnosis, not the CFS diagnosis. The
letter cited at AR 3393 is a letter from Nurse Silcox dated November 10, 1994, to
Mrs. Moser, which states, in its entirety:
Dear Mrs. Moser: Dr. Lake called and told me he will be running a few more lab
tests on Robert to make sure that he is not anemic and that his organs are working
properly. He feels that retesting later for mononucleosis is not conclusive as once
this test results show positive, which they will once he has had mono, they will
always show a positive result. In this case a positive result is not always conclusive
or active disease.
I asked Dr. Lake about vitamin supplements for Robert, explaining that you stated
he was not a very good eater. He said that a multivitamin tablet without iron would
be a good idea for Robert. He stated that he had never heard of the body not
producing its own vitamins after having taken a vitamin pill. Please discuss the
vitamin issue with Dr. Lake if you continue to have questions regarding their use.
Please call me if I can be of further assistance.
Nurse Silcox’s cited testimony at 874:1-12 is solely about the mononucleosis
diagnosis, not the CFS diagnosis.
(16) Defendant’s undisputed fact #30, listed under 9th grade (1994-1995) states,
“In response to parents’ concern regarding chronic fatigue syndrome, District staff
offered accommodations, including shorter day, no P.E. or electives, transportation,
and classes in personal development and study skills taught by special education
resource specialist, Ms. Olsen-Miller, in order to monitor Plaintiff’s progress and
provide assistance with written expression. The personal development class and the
study skills class provided by resource specialist who would serve both special
education students and “at-risk” regular education students. Olsen-Miller 746:22-
26; 748:3-5; 759:1-2; 781:4-8; Silcox 863:5-12; Harrison 1288:4-27; Olsen-Miller
759:1-2; 775:22-24; Silcox 881:12-18; Harrison 1355:1-4; Olsen-Miller Notes 3825-
3826.
The record contradicts most of Defendant’s claims. Robert was not offered a
shortened day until his second semester when he transferred to a small
continuation-type high school in Arnold, closer to home. AR 291; 4262. Robert was
not provided transportation until his sophomore year, after his mother specifically
requested transportation services, when she learned from a neighbor that Robert
had the right to the accommodation.
AR 4253; Doc. 72, ¶48 at 13. The school placed Robert in a resource specialist’s
class held in the early morning, at a time Robert’s CFS made it difficult for him to
attend. The school was aware of Robert’s CFS and its effect upon his ability to
attend morning classes. See, e.g., Ingrid-Olsen testimony, AR 750:13. Robert was
not exempted from P.E. until his sophomore year. AR 4226; 867. At Arnold, Robert
was required to keep a P.E. log of activity, the same requirement of every student at
Arnold. AR 4262. Plaintiff points out, and the record confirms, that Robert did not
receive any special written language instruction from Ingrid Olsen-Miller:
Q: Did you – you focused your efforts with him on written language?
A: Most of the time it was just progressive works caught up [sic]. He was so
overwhelmed at times. And most of it was in a written form. So, there was assistance
with that, as well as getting caught up.
Q: Did you have time to deal with the spelling concerns particularly the mother had
had?
A: (unintelligible) Sometimes Robert wasn’t always happy with my hovering over his
shoulders, typical teenager. (Laughter) Sometimes he wanted to be left alone, but I
attempted to assist whenever I could.
AR 749:4-13.
(17) At the end of his first semester of 9th grade Plaintiff’s mother transferred her
son from the District High School to Arnold High School without alerting Bret Harte
High School staff or discussing her decision with anyone. Smith, 1444:10-19.
The cited testimony does not support this claim:
Graves: Do you recall finding out at any point why, uh, Robert had transferred to
Arnold High School?
Smith: No.
Graves: Do you recall finding out at any point how they got him in?
Smith: Pardon me?
Graves: Do you recall ever – at any point receiving anything about how things had
gone for Robert at Arnold High School?
Smith: Not until he was getting ready to come back to Bret Harte.
Graves: And then what did you hear?
Smith: Um, that he was coming back.
The claim is a direct falsehood. Testimony from Ingrid Olsen-Miller indicates she
and Mr. Smith were both aware of
Robert’s transfer sometime in November or early December:
I. Olsen-Miller: Well, he responded and I don’t remember if I spoke to him initially in
about the middle of November, or the end of November, or the first couple of days in
December, but sometime in there I approached him for the first time and it – at that
time he informed me that it looked like Robert would be attending Arnold High the
second semester at parents request.
AR 745:1-6.
(18) Defendant’s undisputed fact #44 states: “Plaintiff missed 16 days in the 9th
grade year, which was ‘real good’ for
Plaintiff.” Wilamek 373:18-22.
Mr. Wilamek’s testimony, AR 373:14-22, states Robert was absent for 16 days
during his second semester of 9th grade, at Arnold High School:
Wilamek: This is the attendance from Arnold High School.
Stephens: OK. You can see it’s obviously been sanitized and only Robert Moser’s
name is left on there.
Wilamek: Um hum.
Stephens: What was his attendance? How would you characterize his attendance
in the ninth grade?
Wilamek: Real good. I mean, he was there a semester and he missed 16 days.
Stephens: OK. So missing 16 days is average, or -
Wilamek: Well, a little bit above average. But for Robert, it’s real good.
(19) Defendant’s undisputed fact #125 states: “October 8, 1997, American
Government instructor indicates Plaintiff refused to keep notebook. . . .” Notes, p.
4075.
This “undisputed fact” is an exaggeration. Mrs. Moser testified:
Moser: I never had a problem with Mr. Randall. He provided the work or came over
or Robert could call him on the phone. They worked it out with each other, and even
if Robert was very sick, he made sure that Robert got the core of what he needed to
know, but he didn’t have to do any of the extra.
…
Stephens: OK. What is it about those [Mr. Overton’s] accommodations that you
disagreed with, other than the fact that you did not want to have Robert, uh, ask a
friend for the assignment if he were away for one or two days?
Moser: And that I would pick it up. Uh, what did you ask me again?
Stephens: What other things did you object to in terms of the accommodations that
are listed here, other than the one you said before about not wanting Robert to ask
a friend for the assignment?
Moser: Uh, I don’t think I had any, we didn’t have any problems in Mr. Overton’s
class. [Emphasis added].
…
Stephens: It sounds like Patti was kind of like a central figure, uh, in helping to
coordinate things, Ms. Haskell, is that correct?
Moser: Very necessary and central person. Yes. She put a lot of time, was very
nice.
Stephens: . . . And then, we have accommodations from Ms. Oneto on the same
page? Did you have objections to some of those accommodations?
Moser: No. I was wondering why that [sic] notes weren’t put on the, on the
American Government class? But anyways, uh, these aren’t, this isn’t the 504 plan
that we signed, or we talked about when we met with the teachers, but, in general, I
guess it’s the same. Do I have any problems with any of this?
Stephens: Uh-huh.
Moser: Well, I had to go get, first, the schoolwork out of it, that brown binder that
she talked about, in the classroom, and that was kind of difficult, so, eventually, I
got, I was able to get Patti, got the information and then, I, instead of trying to
contact all of these teachers, Patti became the one that, you know
Stephens: Okay.
Moser: – I think Patti had to contact them, which I think would make it easier for
Patti, it would have been nice if they didn’t see Robert, just send it to Patti, and
then, I pick it up.
Stephens: Uh-huh. Okay. But as far as the accommodations of English, you didn’t
have a problem with that? The last one, of course, is the, uh, physics program. And I’
m not going to go through this again, because I think we spent a lot of time on this,
but these are the accommodations. Uh, you can see at the bottom of the page, uh,
that, uh, all of the teachers signed this document. But you did not sign this
document?
Moser: No. I’ve never seen this document until today.
Stephens: So, we have to assume that Ms. Wright did not share this document with
you, would that be correct?
Moser: Yes. Stephens: If you had seen this document, would have have signed it?
Moser: No.
Stephens: And the reason?
Moser: Because I don’t agree with, uh, a student being responsible, and like I said
before, if Robert was not there, I need to get the work as soon as possible, and, uh,
what other reason here? Uh, I must have lost my train of thought. [Emphasis added].
Stephens: Okay, well, I think you have sort of a sense, Mrs. Moser, of what you’re
requesting.
Moser: And I would have to have seen Patti on here be the coordinator on this. …
Stephens: When you met, when you came in to meet with some of the teachers,
did they, uh, discuss some of these accommodations with you at that time when you
came in for a 7:30 a.m. meeting?
Moser: Yes, we went over, it was a different paper, though. We had a different
paper.
Stephens: . . . Did Ms. Wright, so Ms. Wright didn’t even tell you that that
document existed? That’s your testimony?
Moser: I don’t remember.
Stephens: Okay. And you don’t have any recollection that she advised you not to
sign it?
Moser: Oh, I know she didn’t tell me to sign it or not, I know I wouldn’t sign it by
what’s in there.
J. Moser, 1979-1983:26.
(21) Defendant’s undisputed fact #167 states: “Plaintiff believes he has the ability to
advocate for himself.” R. Moser 2232:1-19.
The cited testimony does not support this generalized statement as Robert stated
he was still uncomfortable about doing it.
Hearing Officer: Okay. Okay. Just one last question. Jack Pool today testified that
he recently had a meeting with you and your Mom and another counselor at
Columbia – Paul, I think his name was. And you talked about, I guess about self-
advocacy a little bit.
R. Moser: Um-hum.
Hearing Officer: Do you feel that you know where to go to get help when you need
it at Columbia?
R. Moser: Um, I think I know where to go, yeah.
Hearing Officer: Okay. There were some discussion [sic] about you needed [sic] to
talk to your instructors
R. Moser: Yeah.
Hearing Officer: – if you have a problem or if you need an accommodation. Do you
feel more comfortable doing that now or –
R. Moser: I feel a little more comfortable. I’m still uncomfortable about doing it.
Hearing Officer: Um-hum. Have you done that this semester with your instructors?
R. Moser: I’ve done it with one of my instructors.
Hearing Officer: And how did it work out?
R. Moser: It’s working out good.
(22) Defendant’s undisputed fact #169 states, “Mr. Randall saw Plaintiff 2 to 3 times
per week and 1 to 2 times per week after school and on weekends. Randall, 1790:3-
9.
The cited testimony is from Dr. Patterson and deals with what Dr. Patterson would
have done: “. . . Well and included uh, information. Now because there is the
possibility that Robert might have been other health impaired, uh, knowing what we
know from the record at this point in time, I probably would have talked to some
teachers and, uh, asked to come in to view Robert across the day a couple of times,
I would have attained his attendance records to see is there a . . .”
(23) Defendant’s undisputed fact #171 states, “Algebra II was not particularly
challenging, so Plaintiff was advanced to trigonometry. Plaintiff understood concepts
of trigonometry very well. In fact, if Plaintiff attended college, he could take pre
calculus.” Randall 1390:24-26; 1391:14-16; 1400:2-11; Randall 1401:1-3.
The cited testimony is as follows:
Randall 1390:24-26:
Randall: I’m gonna guess 15-20. Mainly were relatives.
Stephens: Did he have friends there, too? Randall. Yes.
Randall, 1391:14-16:
Randall: Yes. He was in a regular algebra 2 class and math is one of the areas
where I think Robert has a strong aptitude. And, the course wasn’t particularly
challenging for him. That’s one of the reasons . . .
1400:2-11:
Randall: Yeah. Um, the concern I had with what he has done in trig is that the
material for which he was present for which he did work, he grasped it very well.
Uh, but there were – because of the absences and because of the homework,
there were some topics, some chapters that he had huge holes. And I did not
penalize him for not having that material, but evaluated him based on the materials
he did achieve.
Stephens: Did he have the opportunity to, uh, contact you to – for some tutoring to
make up these deficits?
Randall: Yes.
1401:1-3:
Randall: Yes. We discussed that. He and I discussed it where when he went to
college that the course to continue with would probably be a precalculus class, and
that some of the topics would be ones that he saw . . .
Testimony not cited does indicate Robert was advanced to trigonometry without
meeting the prerequisite (AR 1391:17-23).
(24) Defendant’s undisputed fact #173 states, “Plaintiff was on medications during
his senior year which changed 5-7 times, but failed to inform school. J. Moser 1938:
21-24.
This statement is untrue. The cited testimony does not support the contention that
Plaintiff did not inform the school. The citation also ignores Ms. Stephens’ comments
and Mrs. Moser’s testimony just prior, where Mrs. Moser specifically states she told
the school about the medication changes. The cited testimony is:
Stephens: At this point, I don’t think I need them. How many times would you say
that the medications were changed during Robert’s senior year?
Moser: Five or seven times.
The entire exchange, including the cited testimony, is:
Ms. Stephens: I think that there’s evidence that, uh, Mrs. Moser testified earlier
that, uh, Dr. Stoke had prescribed various medications to deal with depression and
some of these, uh, medications, I think were, what I would call, heavy-duty
medications in terms of psycho-tropic, uh, drugs and that schools should be notified
that the child is going to be taking these kinds of drugs. So, that’s why I wanted to
know if there was ever any attempt to contact the schools about this.
Hearing Officer: You may answer the question.
Moser: Uh, I know that I wrote a letter asking him to, uh, the school asked me to do
something like that, so, I wrote a letter and I think only Dr. Lee responded to the
school. And then, when, when he started taking different medication, I came in and
told Sandy as it went along like we’re changed to a different medication, ‘cause she
was very, Sandy is very kind and I felt like she cared, if I came in and told her what
was going on. She was a very nice counselor. So, I have the names of the drugs if
you want them.
Stephens: At this point, I don’t think I need them. How many times would you say
that the medications were changed during Robert’s senior year?
Moser: Five or seven times.
Stephens: Five to seven? Moser: I couldn’t tell you exactly. [Emphasis added].
(25) Defendant’s Undisputed Fact #197 states, “Based on Dr. Trotter’s review of
records and conversations with the Mosers, he believes that since Robert was within
normal expectations for his grade level, he probably would not be afforded special
education services under other health impairment criteria, but he would perhaps be
eligible probably for 504 plan accommodations.” Trotter, 283:22-24; 284:10-16.
Defendant mis-cites testimony and omits Dr. Trotter’s comments just prior to the
cited testimony where he says he is speaking “in generalities” and “hypothetically”
as to “if Robert was doing within normal expectations for his grade level . . .” Dr.
Trotter does not state that “he believes that since Robert was within normal
expectations for his grade level.” Trotter, 283:22-24, states:
Graves: Okay. Based on your review of the records and conversations with the
Mosers, how long do you think Robert would have been eligible to be treated as an
OHI student under IDEA?
Trotter: Well, as long as he was in school, and then I don’t know how the junior
college component how they – how their student services . . .
Trotter, 284:10-16, states:
Graves: The general testing?
Trotter: Yeah, he was functioning, you know, despite his illness, he was managing
to process more information quite well. We can only conjecture if he wasn’t, how well
he would be doing. But he still met the threshold of average performance.
Graves: Okay.
Trotter: In my understanding, we’re saying that he wouldn’t be lost in a [regular
class].
Not cited by Defendant are the prior lines of testimony on page 284, by Dr. Trotter:
Graves: Oh, I’m talking about before you came on board. How long – how many –
at one point do you think he became eligible as an OHI student?
Trotter: Well, again, it’s based on the – you know, again I can only talk
hypothetically, not specifically to Robert’s case. But if he was doing within normal
expectations for his grade level, he probably would not be afforded special ed
services under OHI, but he would perhaps be eligible for probably 504 plan
accommodations. But these are generalities, okay, not specific to this case,
because I was not part of the IEP team. [Emphasis added].
(26) Defendant’s Undisputed Fact #217 states, “deficit in spelling did not affect
plaintiff’s writing competence” and cites “Patterson, 1279:1-12.”
Dr. Patterson was Plaintiff’s expert. The cited testimony was from Michael Harrison,
Defendant’s school psychologist, not Dr. Patterson. Michael Harrison’s full testimony
on the issue, at AR 1279:12-27, 1280:8-12, does not support Defendant’s
generalized claim:
Harrison: There seemed to be a deficit in spelling, but it did not seem to be having
a significant effect on his writing competence. It seemed to be more related to
spelling itself.
Graves: Okay. And did you notice errors in his writing itself?
Harrison: Um – that would have been scored by the resource specialist. And when I
look at just the results of that testing, um, what was told to me and what was
demonstrated by the formal results of the test was that his writing skills were within
the average range.
Graves: Okay. Was he making any grammatical errors that you’re aware of?
Harrison: That would – that would need to be, I would want the resource specialist,
the person who had actually given that test to speak to –
Graves: Okay. And were you able to review the actual sample of the writing he had
produced for that test?
Harrison: Hm hmm. Hmm. I saw, um, copies of a –
Graves: Okay. And do you know where those will be now? Harrison: I think I
passed them up even . . . . Harrison: I don’t believe that I was given any of that in
preparation for this, um, it would be typical in an IEP meeting that I would look over
the results the resource specialist had, um, I think the only thing I’ve seen written
out is just results of the – the from the previous ability test, (unintelligible) tests that
has been given.
///
3. Misstatements and Mischaracterizations of Applicable Law
(1) Counsel stated in her July 31, 2002, brief:
Procedural flaws do not automatically require a finding of a denial of FAPE. (See,
W.G. v. Board Trustees of Target Range School District, 960 F.2d 1479, 1484 (9th
Cir. 1992). In fact, the U.S. Supreme Court defined what is meant by a ‘free
appropriate public education’ and concluded that the IDEA does not require that a
student be provided with the best available special education services or that the
services maximize each child’s potential. It also concluded that the basic floor of
opportunity provided by the Act consists of access to education which provides
some educational benefit.
Doc. 80, Def.’s Memo re Summary Judgment, at 31:15-21.
Defendant’s partial presentation of IDEA case law ignores and obfuscates the
central role procedural safeguards play, which counsel, as an educational law
specialist, should know are the basic tenets of established IDEA case law. The case
counsel cites does say that procedural defects are not per se violations, but the
complete citation states: “Procedural flaws do not automatically require a finding of
a denial of a FAPE. However, procedural inadequacies that result in the loss of
educational opportunity, or seriously infringe the parents’ opportunity to participate
in the IEP formulation process clearly result in the denial of a FAPE.” W.G. v. Board
of Trustees of Target Range School Dist. No. 23, 960 F.2d 1479, 1484 (9th Cir.
1992) (emphasis added).
Counsel’s selective partial citation is misleading and attempts to obscure the rule
regarding procedural safeguards and instead create the false impression that
minimal educational benefit is the only measure of what constitutes a FAPE, when
the applicable case law says no such thing:
When a district fails to meet the procedural requirements of the Act by failing to
develop an IEP in the manner specified, the purposes of the Act are not served, and
the district may have failed to provide a FAPE. The significance of the procedures
provided by the IDEA goes beyond any measure of a child’s academic progress
during the period at issue. As the Court in Rowley said, “Congress placed every bit
as much emphasis upon compliance with procedures giving parents and guardians
a large measure of participation” at every step “as it did upon the measurement of
the resulting IEP.” Rowley, 458 U.S. at 205-06.
W.G. v. Board of Trustees of Target Range School Dist. No. 23, 960 F.2d 1479,
1485 (9th Cir. 1992). Plaintiff’s portrayal of Rowley as simply requiring a minimum of
“some educational benefit” to the exclusion of procedural safeguards severely
mischaracterizes the law, in what can only be interpreted as an intentional attempt
to mislead the court. Counsel’s conduct goes far beyond the vigorous advocacy of
distinguishing cases or holdings harmful to its position; counsel actively
misrepresents the basic standard by which IDEA cases are judged.
(2) Counsel stated in her brief of June 4, 2001, that Plaintiff could not be
reimbursed for the purchase of a computer, internet access fees, and counseling
because “20 U.S.C. § 1412(a)(10)(C)(iii) requires that the parents give written
notice to the District before they can be reimbursed for educational services
unilaterally purchased.” Doc. 25, Def.’s Brief re De Novo Review, at 36:21-26.
Counsel repeats this claim in its opposition to Plaintiff’s Motion for Summary
Judgment. See Doc. 87 at 34:5-10.
Review of the citation from the IDEA and the context in which it is made reveals that
counsel seriously mischaracterized the law. First, the cited text only discusses a
situation where the child is enrolled in private school without the consent of the
public agency. 20 U.S.C. § 1412(a)(10)(c). Second, there may be a denial of
reimbursement for private school fees if the parents did not notify the public agency
prior to the child’s removal from public school. 20 U.S.C. § 1412(a)(10)(C)(ii and iii).
Third, the parents have to be notified of the requirements under this section. 20 U.S.
C. § 1412(a)(10)(C)(iv). Plaintiff did enroll in private school; he was not removed
from public school; he was not seeking private school fees; and there is no
evidence his mother received any kind of notice from Defendant about the
requirements. The cited portion of the IDEA does not say what Counsel suggests it
says. Plaintiff explained in detail why counsel’s statement of the law was wrong in
the reply of October 15, 2001. See Doc. 44, Pl.’s Answer to Evidentiary Objection at
55:1-22. Yet, on August 15, 2002, Defendant’s counsel reiterated the identical
(wrong) characterization of the law in the exact same language, verbatim. See Doc.
87, Def.’s Opposition re Summary Judgment at 34:5-10.
Lozano, Smith attempts to explain away this mischaracterization as a mere
“mistake.” Lozano, Smith’s explanation is untenable given the repeating of this
misstatement of law after it was challenged.
(3) Counsel also suggests that accommodations that satisfy Section 504 of the
Rehabilitation Act would satisfy IDEA requirements. Doc. 41, Def.’s Further Brief re
Do Novo review, at 12:7-11 (“There is no law preventing regular education
accommodations, being developed as part of a Section 504 plan, to be written as a
document separate and away from the IEP process. Moreover, the 504
accommodations were subsequently adopted by the IEP team as part of Plaintiff’s
IEP”). Defendant attempts to perpetuate this deception in the opposition to Plaintiff’s
Motion for Summary Judgment by claiming the District provided a FAPE based upon
those accommodations allegedly made under Section 504 of the Disability Act. See
Doc. 87, at 24:4-20.
This is plainly not the law as discussed in detail in the Memorandum Decision and
Order. See Doc. 102. A school has no leeway to substitute a 504 Plan for required
IEP/IDEA services. “Both sections 504 and IDEA have been interpreted as requiring
states to provide a free appropriate public education to qualified handicapped
persons, but only IDEA requires development of an IEP and specifically provides for
transition services to assist students [to] prepare for a post-high school
environment. See 20 U.S.C. § 1401(a)(20). Under the statutory scheme, the school
district is not free to choose which statute it prefers.” Yankton School District v.
Schramm, 93 F.3d 1369, 1376 (8th Cir. 1996). “[T]he District should have devised
an IEP to meet [the student’s] unique needs in compliance with the provisions of the
IDEA, and its proposed plan under § 504 of the Rehabilitation Act was not an
adequate substitute.” Muller ex rel. Muller v. Committee on Special Educ., 145 F.3d
95, 105 (2d Cir. 1998).
(4) Adaptive Physical Education Requirements (APE)
Defendants argued in their June 4, 2001, brief at p. 26:18-22:
APE is the most restrictive form of physical education and is not provided unless
(1) a student cannot participate in regular physical education classes to support his
equal participation; (2) modifications cannot be made to the student’s regular
physical education; and (3) specially designed physical education would not be
appropriate.
Plaintiff rejoined that 5 Cal. Cr. C. § 30515 in truth provides:
[c]onsultative services may be provided to pupil, parents, teachers, or other school
personnel for the purpose of identifying supplementary aids and services of
modifications necessary for successful participation in the regular education
program or specially designed physical education programs [in special day classes].
Defendant’s argument that APE services required Robert be exempted rather than
aided by APE to access physical education was at the least a distortion, if not a
misrepresentation of the law, which encourages APE services to teach students to
work around limitations to facilitate participation activities with non-disabled peers.
(5) Standard for Entitlement to Extended School Year Services.
Defendant, in opposition to summary judgment at p. 27:9-12, argued that extended
school year services are only warranted for students who face regression, in the
event that services are interrupted. Defendant argued that Robert did not need
“extensions” into the summer and should be judged by what he completed by the
end of the school year, based on Defendant’s claim that California’s ESY regulation
provides that “ESY services are provided when ‘an interruption of the pupil’s
educational programming may cause regression.’”
To the contrary, regulation does not require proof of regression and in substance
calls for extended school year services to be provided to each individual with
exceptional needs who has unique needs and requires special education and
related services in excess of the academic year. Such individuals have handicaps
likely continued indefinitely or for a prolonged period and interruption of the pupil’s
educational programming may cause regression, when coupled with limited
recoupment capacity, rendered impossible or unlikely the student will attain the level
of self-sufficiency and independence that would otherwise be expected in view of his
or her handicapping condition. The lack of clear evidence of such factors may not
be used to deny an individual an extended school year program if the Individual
Education Program team determines the need for such a program and includes
extended school year in the individualized education program pursuant to
subsection (f). As Plaintiff correctly notes, under federal law, regression-recoupment
is not the standard for availability of ESY services. Johnson by and through Johnson
v. Independent School Dist. No. 4 of Bixby, Tulas County, Okla., 921 F.2d 1022,
1027-28 (10th Cir. 1990) (citing Alamo Heights Ind. Et. School Dist. v. State Board
of Education, 790 F.2d 1153, 1158, fn.3 (5th Cir. 1986).
(6) Whether Robert’s Parents Were Barred From Reimbursement By Failure to
Provide Notice To the District Before Making Expenditures On Robert’s Behalf.
Defendant argued that 20 U.S.C. § 1421(1)(10)(C)(iii) requires parents to give
written notice to the District before they can be reimbursed for educational services
unilaterally provided and that Robert’s parents did not give Defendant
District such notice. Brief filed June 4, 2001, p. 36:24-26. The reference section
does not require advance written notice before reimbursement for educational
services unless the student previously received special education and related
services under the authority of a public agency and are removed by parents to be
enrolled in a private elementary or secondary school without the consent of or
referral by the public agency, and the parents seek reimbursement for the cost of
that enrollment. The written notice requirement only applies if parents have been
given notice of the requirement. Here, there is no showing Defendant ever gave
such notice. 20 U.S.C. § 1412(a)(10)(c)(iv)(IV).
This section of law did not become applicable in California until January 1, 1999,
after it was added to federal law by Stats. 198, c. 691 (S.B. 1686). After notice of
the error, Defendant continued to advance the argument.
B. Attacks on Plaintiff and Plaintiff’s Counsel.
Separate from the distortions and misrepresentations detailed above, Ms. Yama
and Lozano Smith engaged in ad hominem attacks on Plaintiff, suggesting he had a
bad attitude and was a malingerer. They also attacked Plaintiff’s counsel with
accusations she was mischaracterizing the record and falsely attributed arguments
in the federal case to Plaintiff that Plaintiff’s counsel did not advance.
C. Elaine Yama
Ms. Yama has submitted a separate brief and declaration which attempts to explain
that the misstatements and frivolous objections were due to either mistake,
misunderstanding, or carelessness. See Yama Decl., Doc. 132 and Yama
Supplemental
Decl., Doc. 154. Ms. Yama contends she misunderstood the nature of the
proceedings and did not realize they were to be conducted as a “standard summary
judgment motion,” with separate statements of undisputed facts. Id. Ms. Yama
contends she believed she was merely submitting a statement of chronological
facts, and that in this statement she could state “any fact which had a scintilla of
evidence in support of it,” regardless of credibility issues or the strength of evidence
to the contrary. Id.
In support of this explanation, Ms. Yama points to her December 7, 2001, letter to
the Court where she proposed an alternate method of proceeding with summary
judgment. See Doc. 132, Exh. B. Ms. Yama proposed that:
Each party submit a ‘Chronological Statement of Material and Relevant Facts,’
following a format similar to that set forth in this Court’s Local Rule 56-260. The
Chronological Statement of Material and Relevant Facts shall enumerate discretely
each specific material and relevant fact and cite the particular portions of the
administrative record relied upon to establish that fact.
Yama Decl., Doc. 132, Ex. B, at 2. The letter also made two other substantive
proposals: “Chronological Statement of Material and Relevant Facts will be filed with
a Brief” and “Failure to support a fact or disputed fact by appropriately citing to the
administrative record, will result in a finding that the fact is unsupported and it will be
disregarded by the Court.” Yama Decl., Doc. 132, Ex. B, at 2.
By this letter, Ms. Yama sought to create an unorthodox procedure which she claims
partially excuses two areas of improper conduct. Ms. Yama points to her suggestion
that all facts had to be cited to the administrative record, as justification for her
patently frivolous objections to Plaintiff’s statement of simple, indisputable
background facts. Ms. Yama also explains her misstatements and
mischaracterizations of the administrative record and law were based on her “belief”
that the existence of some faintly colorable evidence was sufficient to substantiate a
“fact” for inclusion in the Chronological Statement of Material and Relevant Facts in
the face of much stronger evidence contradicting that “fact.” As she has stated, “I
understood that the parties were not submitting undisputed facts, as would normally
be the case with a summary judgment motion. Accordingly, I never referred to my
statement of facts as ‘undisputed’ facts.” Yama Decl. Doc. 132 at 2:20-22 (emphasis
in original).
Ms. Yama also states without explanation that she “assumed that the Court agreed
and understood that the statements would not constitute a true effort to set forth
‘undisputed facts.’” See P&A by Yama, Doc. 134 at 23-25. As a seventh year
associate Ms. Yama should have had enough experience with the courts to know
that once she proposed a significant and unproductive departure from the Federal
Rules of Civil Procedure, by informal correspondence to the court, she had no basis
to “assume” the court’s lack of response to her letter request was acceptance of
that proposal, absent a court order. Counsel may not offer: “here is my proposition,
if I don’t hear from you within x number of days I will assume you agree or have no
objections.” Ms. Yama’s contention that she believed she had court approval of her
unprecedented request is untenable. Ms. Yama’s explanation ignores that in her
very same December 11, 2001, letter to the court, she also suggested that the
parties be limited to 50 facts and 15 pages. Yet her submission of Defendant’s
chronological statement of facts included 221 facts in 30 pages. This submission
indicates that either Ms. Yama was picking and choosing which of her December 11,
2001, suggestions she “assumed” the court had accepted, or she is simply
attempting to excuse the inexcusable by presenting this letter as a post hoc
rationalization.
The latter is more likely true given Ms. Yama’s letter to the court, dated July 26,
2002, which accompanied Defendant’s submission of an amended Response to
Plaintiff’s Separate Statement of Chronological Facts.7 See Doc. 155. On July 26,
2002, Ms. Yama states:
After reading the Court’s most recent decision, Defendant’s counsel now
understand that they misinterpreted the Court’s order. Defendant’s counsel
believed that the procedure to be utilized in this review of the hearing officer’s
decision was a format of modified summary judgment. However, it now understands
that the Court ordered a formal summary judgment procedure. Defendant’s counsel
apologize for its misinterpretation and any inconvenience to the Court or Ms.
Graves that our misinterpretation may have caused.
To conform to the Court’s order, Defendant therefore provides the enclosed
Amended Response to Plaintiff’s Statement of Chronological Facts . . . .
The Amendment consists of exchanging the words, “No Response” to
“Undisputed.” Also, the Amendment consists of adding the word “Disputed” prior to
all other responses, to which Defendant objected and/or responded.
Id.
Ms. Yama’s letter admits she knew that the proceedings were governed by the
FRCP applicable to summary judgment. Ms. Yama modified Defendant’s Response
to Plaintiff’s Separate Statement of Chronological Facts based upon her
understanding. Defendant’s modified response continues to include the many
frivolous and vexatious objections listed by the Court in both its Memorandum
Opinion on the Motion for Summary Judgment (Doc. #102) and the Court’s Order to
Shaw Cause (Doc. #101). Ms. Yama could have corrected Defendant’s Response
and Objections to Plaintiff’s Statement of Chronological Facts and Defendant’s own
Separate Statement of Chronological Facts by submitting a similarly amended
statement or an errata, to correct those statements of fact that were not supported
by the record. She consciously chose to do neither.
7 Ms. Yama inexplicably neglects to include a copy of this correspondence with her
declaration in response to the Order to Show Cause, another omission of relevant
facts.
For example, one of the “disputed facts” pointed out in Ms. Yama’s July 26, 2002,
letter is fact #16, which Defendant “changed from ‘no response’ to ‘disputed’
because Defendant did not realize the conflict in the date referenced.” See Doc.
155. This very objection is noted in the Order to Show Cause (Doc. #6 at 27) as
“confusing at best and misleading at worst” because the date on the doctor’s P.E.
excuse note clearly states Mr. Moser was seen August 1994, yet Defendant’s
amended response attempts to suggest the diagnosis was on the date the doctor’s
note was signed, in 1995. This was done despite unequivocal reference to the
diagnosis date as August 1994. It is impossible to interpret this objection as
anything other than intentionally misleading, especially when combined with the
letter to which it is attached.
Ms. Yama’s attempts to excuse her behavior by contending she was operating
under the assumption that the hearing officer “accurately described” the facts in the
administrative record is not credible. See Doc. 134 at 10:10-16. The review was “de
novo;” Ms. Yama knows the standards governing de novo review and the case law
which holds that while deference is given a hearing officer’s fact findings, that
deference is only given if the hearing officer does a thorough and complete job.
Adams v. Oregon, 195 F.3d 1141, 1145 (9th Cir. 1999); see also, Doc. 102 at 114.
Any deference due the hearing officer’s decisions regarding the law is irrelevant to
Ms. Yama’s misstatements of fact. Any deference due the hearing officer’s findings
of fact is made moot by Ms. Yama’s actual knowledge that her characterizations of
factual issues she included in the Motion for Summary Judgment pleadings were, at
a minimum, highly suspect. By the time Ms. Yama received Plaintiff’s complaints
about her misstatements in the Trial De Novo briefs, as well as two letters
requesting Defendant correct the record with the Court, she waived any entitlement
to rely upon allegedly incorrect findings of fact provided by the hearing officer.8
Assuming, arguendo, that Ms. Yama’s reliance on the SEHO hearing officer was in
good faith, a party is responsible for innocent, good faith mistakes of law or for
carelessness of counsel, because reasonable inquiry would reveal a mistake, and
counsel who is careless has not made reasonably inquiry. Lloyd v. Schlag, 884 F.2d
409, 412 (9th Cir. 1989). Ms. Yama’s alleged “reliance” on the SEHO officer’s
recitation of the record is also not reasonable under the circumstances, given: 1)
the Hearing Officer apparently wrote his decision without the benefit of a transcript
of the hearing; and 2) Defendant’s misstatements of fact cite the transcript
(administrative record), not the Hearing Officer’s erroneous decision. See, e.g.,
Doc. 68.
8 Neither Ms. Yama nor Lozano Smith point out which misstatements they made that
were allegedly repeated from the Hearing Officer’s decision. The bulk of facts
contained in the Hearing Officer’s opinion are in his “Background Section,” not in
the “Findings of Fact and Conclusions of Law” to which Ms. Yama and Lozano Smith
contend deference is owed. Given that the briefs cite the administrative record in
support of the misstated facts, and not the Hearing Officer’s opinion, the argument
is specious.
Ms. Yama contends she “made a number of mistakes” in the papers she submitted,
but that these were “honest mistakes resulting from her confusion,
misunderstandings, incorrect assumption, and her failure to double check her
factual citations.” Doc. 134 at 1:24-28. However, taken as a whole, Ms. Yama’s
pattern of practice does not support the position that she was merely negligent in
her reading of the record. Plaintiff’s counsel made numerous objections to Plaintiff’s
statements (some correct, many incorrect) citing to the text of the administrative
record. To then turn around and claim that defense counsel’s own
mischaracterizations are due to her lack of familiarity with the record or a failure to
carefully cite to the record is disingenuous.
While isolated errors or misstatements might be excused given the size of the
record, the sheer volume of misstatements coupled with the fact that they
universally favor the Defendant suggests a concerted attempt to distort the record
to make it say what it does not. For example, in addressing the sample of issues
listed in the Order to Show Cause, Ms. Yama admits she overstated or incorrectly
stated the evidence at least seven times and made a mistake in her interpretation,
reading, or note taking with regard to the administrative record approximately
seventeen times. Ms. Yama admits her objections to Plaintiff’s facts were “hyper
technical,” i.e., frivolous, improper or unclear at least six times. She acknowledges
that on at least four occasions she objected to obviously indisputable facts simply
because Plaintiff did not cite to the record, based on her self-suggested assumption
that the proceedings would not be subject to the federal rules of civil procedure
governing a summary judgment motion (an assumption which has since been
disproved by Ms. Yama’s July 26, 2002, letter acknowledging she understood the
nature of the proceedings).
Taken as a whole, Ms. Yama admits she made mistakes, misinterpreted the
evidence, overstated the facts or made hyper- technical or improper objections
approximately thirty-four times. These examples are limited to the instances of
problems listed in the Order to Show Cause. The only reasonable inference that
can be drawn is that Ms. Yama and her law firm intended to obstruct at every step
and stand education law on its head. A filing is frivolous under Rule 11 if it is
unreasonable when viewed from the perspective of a competent attorney admitted
to practice before the district court. G.C. & K.B. Investments, 326 F.3d 1096, 1109;
In re Grantham Bros., 922 F.2d 1438, 1442 (9th Cir.); Zaldivar, 780 F.2d at 831.
A negligent or too attenuated examination of the record would not result in the
extremely skewed view of the record Ms. Yama presented. Her presentation was
carefully constructed to omit or minimize adverse facts, e.g., portions of transcripts
were cited out of context to support made-up facts, that, when viewed in their
entirety, contradict the true record. It is obvious Ms. Yama clearly scrutinized the
record to explicitly cite only portions of it, or to refer to testimony favorable to the
District, but was only “mistaken” when she misrepresented the remainder of the
record, her explanations are not credible. “A district court confronted with solid
evidence of a pleading’s frivolousness may in circumstances that warrant it infer that
it was filed for an improper purpose.” Townsend v. Holman Consulting Corp., 929 F.
2d 1358, 1365 (9th Cir. 1990).
Counsel found ways to ostensibly conform record references to support Defendant’
s case by misreading context, omitting critical facts, and sometimes by simply stating
the opposite of what was in the record. This kind of disinformation is insidious
because it was provided by an officer of the court. It created a greater burden on
plaintiff and the court. Defendant’s counsel treated the law with the same contempt
for accuracy. Attorneys have a duty to actively advocate on behalf of their clients
but they have no duty to misrepresent facts or misstate law. Rule 11 creates and
imposes on a party or counsel an affirmative duty to investigate the law and facts
before filing; Rachel v. Banana Republic, Inc., 831 F.2d 1503, 1508 (9th Cir. 1987)
and further obliges an attorney to dissuade a client from pursuing specious claims,
to avoid possible sanctions by the court, as well as unnecessary costs of litigating a
worthless claim. Mohammed v. Union Carbide Corp., 606 F.Supp. 252 (E.D. Mich.
1985).
Ms. Yama repeatedly states that the administrative record and the appeal process
was so difficult and confusing that these factors significantly contributed to her
“mistakes.” While the administrative record was voluminous and in many cases
duplicative, the standards by which a district court reviews a hearing officer’s
decision are clearly set out in easily accessible case law, as is evidenced by
Defendant’s invocation of one (but not all) of those standards in its summary
judgment brief. It is not credible to suggest a seventh year associate, practicing for
three years in education law, could not keep the record straight and address the
issues raised by Plaintiff.
It is difficult to ascertain whether counsel has taken seriously the duty of honesty
and candor owed to the Court. Every time a party submits a filing, the attorney
personally certifies the contents both as to reasonable factual investigation and
legal research. See Fed. R. Civ. Pro. 11(b). This professional responsibility
transcends the role of advocate and duty to the client if the two conflict.
Ms. Yama’s declaration and brief in response to the Order to Show Cause give the
impression she is a neophyte lawyer who was unable to grasp the complexity of the
case or record and made a few errors due to her misunderstanding of the
specialized nature of the law, the proceedings and the record. This portrayal is
belied by the history of the case and Ms. Yama’s experience. Ms. Yama is not a first
year attorney, she is a seventh year attorney – in some firms she would already be
a principal. She has been practicing in the area of education law for over three
years, for a law firm which holds itself out as a leading specialist in California in this
area of law.
Assuming, arguendo, that a seventh year attorney is somehow not experienced
enough to understand the nature of a summary judgment proceeding or to verify
the record facts or the law underlying her legal arguments, as an attorney licensed
to practice law in the State of California, Ms. Yama had an ethical obligation to ask
for help and get instructions from her superiors if she truly could not deal with the
“complexities” of the case. Rule 11 creates and imposes on a party or counsel an
affirmative duty to investigate the law and facts before filing. Rachel v. Banana
Public, Inc., 831 F.2d 1503, 1508 (9th Cir. 1987).
What is hard to understand is Ms. Yama’s alleged inability to understand the
background of the case before submitting briefs, verifying statements of fact against
the record, and asking for help, if she needed it. All of these actions, Ms. Yama now
contends she will take in the future, are actions that should be second nature to a
seventh year associate. It should not require an Order to Show Cause proceeding
and prospect of sanctions to actuate professional responsibilities.
Ms. Yama’s contention that this is not a situation where she “knowingly concealed
material facts or knowingly asserted a frivolous position,” (Doc. 134 at 12-13) is
simply untrue given the evidence discussed in this order. Ms. Yama still does not
candidly accept responsibility for her actions, instead she repeatedly states only
that “mistakes were made.” See Doc. 134. Her assertions that the “pressure of
private practice” requires that mistakes will inevitably be made, demonstrate her
complete lack of understanding of her ethical responsibilities as an officer of the
court or the serious nature of this proceeding and the allegations against her. Ms.
Yama’s contention that while the “mistakes” she made “may be the result of a
certain degree of carelessness, they do not involve the type of recklessness
required to warrant [Sect.] 1927 sanctions,” is contradicted by the evidence. Ms.
Yama made more than a few “mistakes” and was much more than simply “careless.”
She was reckless. She systematically distorted the record and repeatedly ignored
Plaintiff’s objections and warnings that she was doing so.
In fact, Ms. Yama’s declaration in response to the Order to Show Cause, in at least
two instances evidences that she still doesn’t “get it.” Ms. Yama contends Defendant’
s Fact #37 is supported by the testimony of Mr. Smith, that he, himself, was not
aware of Robert’s transfer to Arnold High School. Doc. 134 at 17:5-15. Defendant’s
fact #37 states: “[a]t the end of his first semester of 9th grade Plaintiff’s mother
transferred her son from Bret Hart High School to Arnold High School without
alerting Bret Harte High School staff or discussing her decision with anyone.” Ms.
Yama’s explanation ignores the actual language used in reciting this fact –
defendant doesn’t say Mr. Smith was not alerted, Defendant says: 1) none of Bret
Harte’s staff was alerted; and 2) Mrs. Moser didn’t discuss her decision to transfer
Robert “with anyone.” Citing to Mr. Smith’s testimony does not excuse the falsity of
this statement. Ms. Olsen-Miller had actual knowledge of Robert’s transfer. Whether
or not she actually discussed it with Mr. Smith, and whether that creates some
conflict in the facts, is irrelevant. Defendant claimed “no one knew of the transfer,”
however Defendant’s own employee, Ms. Olsen-Miller expressly admitted she knew
of Robert’s transfer to Arnold in at least November or December. This is a direct
falsehood; Ms. Yama’s explanation only exacerbates it.
Regarding Plaintiff’s fact #96, Ms. Yama admits her objection was “overly technical”
because she believed “it was proper to object to Plaintiff’s contentions if they did not
constitute a verbatim recitation of the evidence.” Ms. Yama now realizes that if the
statement she objected to was substantively supported by the evidence, she should
not have objected to it. Ms. Yama attributes her “over technical” objection to her
“limited experience.” A seventh year associate’s explanation that this error was due
to limited experience is patently unreasonable.
Taken as a whole, Ms. Yama’s repeated misstatements of the facts, frivolous
objections, and mischaracterizations of law, when combined with the fact that she
was placed on notice of her transgressions no less than four times by Plaintiff’s
counsel, throughout the painful progress of trying to get the summary judgment
motions before the court for decision,9 cannot be interpreted as anything other than
a bad faith attempt to mislead the Court, obscure the real facts of the case, to
obstruct, and/or harass the Plaintiff. This was an effort to either wear down the
Plaintiff or to win a victory for Lozano Smith’s client that was clearly unjustified by
either the facts or the law.
9 In many instances, Plaintiff provided very specific examples of misstatements and
citation to the correct section of the record, which provided Ms. Yama, Lozano Smith
and Defendant with an easy guide to correct these misrepresentations.
These actions violated provisions of Rule 11(b)(1), (3), and (4), as well as § 1927.
Ms. Yama has been involved in at least four other special education cases. Graves
Decl., Doc. 151, at 1:23. In California, Lozano Smith is a self-proclaimed major firm
in the education law field. It can only be hoped that these practices are not the
standard mode of operation for Lozano Smith attorneys, due to their potential to
materially harm other special education plaintiffs.
Ms. Yama’s protestations that she never meant to submit any incorrect, improper, or
misleading pleading (Doc. 134 at 2:1824), nor did she mean to harass opposing
counsel, rings hollow, given: 1) the express notice she was given that she was doing
so; 2) the numerous opportunities she had to review and correct the falsifications
contained in the pleadings repeatedly pointed out by opposing counsel; and 3) the
repetitive nature and extent of her “errors.”
Ms. Yama’s claim that there was no other Lozano Smith attorney to help her
understand the administrative record is equally unavailing. See Doc. 134 at 4:6-8.
According to the District’s responses to Plaintiff’s interrogatories, Ms. Yama made
no attempt to contact the District’s attorney who handled the administrative hearing
and was presumptively intimately familiar with that record. At least two other Lozano
Smith attorneys were “of record” on the pleadings. There is no suggestion the
District’s attorney was unavailable for consultation over the course of this litigation.
Ms. Yama states she is unlike those attorneys who have received Rule 11 sanctions
for ongoing or repeated conduct and she does not believe in “pushing the ethical
envelope.” This case is entirely about Ms. Yama, Lozano Smith and Bret Harte
Unified School District “pushing the ethical envelope” and engaging in ongoing and
repeatedly deceptive and obstructive conduct throughout the case’s several year
history.
Ms. Yama claims that she acknowledged responsibility for her mistakes by
accepting, without objection, the corrective measures voluntarily imposed upon her
by the Lozano Smith firm. However, in this order to show cause proceeding, she
repeatedly attempts to attribute her breaches to inexperience and confusion (as a
seventh year associate specializing in education law). This calls into question the
bonafides and true extent of her acceptance of responsibility for her conduct.
When an attorney repeatedly and vexatiously presents “facts” and “law” to the Court
that are plainly wrong or misleading, which needlessly prolong and multiply the
summary judgment proceedings and materially increase the burden on the Court,
bad faith can be inferred. Appropriate sanctions can be imposed under the authority
of both 28 U.S.C. § 1927 and the inherent authority of the Court. Ms. Yama’s
admissions that she did not review the pleadings or the record before submitting her
objections and misstatements of disputed facts, shows she acted unreasonably. Any
competent attorney would have made such an investigation, as required under Rule
11 to determine the accuracy of the statements of undisputed facts, the law, and
grounds for objections. The substance of Ms. Yama’s opposition is not that she has
fully and unequivocally accepted responsibility for her breaches of duty and the
rules of professional conduct.
Sanction authority exists under Rule 11(b)(1), (3) and (4) for the frivolous
objections, misstatements of fact and law contained in her Summary Judgment
pleadings under 28 U.S.C. § 1927 and the Court’s inherent power, for her steadfast
refusal to correct these errors when faced with repeated objections and explicit
notice that her papers were inaccurate and misleading, in violation of her duty of
truth and candor to the Court. It is reasonable to infer that Ms. Yama should have
known that her efforts amounted to obstruction of the just resolution of the case and
harassment of the Plaintiff.
D. Lozano Smith
Lozano Smith characterizes itself as a “recognized leader” in special education law
in California and that it provides training seminars for special education attorneys
and administrators. Mr. Fulfrost, the managing partner of Lozano Smith’s Santa
Monica Office was heavily involved in the early stages of this case and is an expert
in special education and students with disabilities. See www.lozanosmith.com,
accessed October 11, 2004. Mr. Smith is a former Senior Deputy County Counsel
for Fresno County Schools and has been practicing law for 24 years. Id. Mr. Sklar
was admitted to the bar in 1995 and lists his specialty as Education Law. Id. Ms.
Yama practices law with a primary focus in special education and has assisted
school districts with IEP meetings, mediation and due process hearings and has
presented at workshops related to special education in California. Id. Mr. Fulfrost,
Mr. Smith, and Mr. Sklar further all actively worked on this case at various times as
detailed by Plaintiff’s submission filed February 25, 2004, pp. 2:5-4:4, and the
submission filed November 5, 2003, pp. 5:23-6:10 and 7:17-8:12.
Lozano Smith contends that the mistakes made in this case are the result of Ms.
Yama’s actions and Ms. Yama’s actions alone. See Doc. 137, Lozano Smith Memo
re OSC, 3:7-15. Mr. Smith has stated that Ms. Yama was an experienced attorney
who he felt (based on an active working relationship over a four year period) could
handle the case and submit pleadings without direct supervision. See Smith Decl., 2:
3-3:2. Lozano Smith appears to argue that because it previously provided Ms. Yama
with “sufficient training” and “supervision,” the firm has not engaged in bad faith
sanctionable conduct. Lozano Smith ignores the fact that Ms. Yama was not the only
attorney who signed misleading pleadings and it ignores the repeated objections
and warnings from Plaintiff about its malfeasance.
The various papers filed with the Court were signed by no less than three Lozano
Smith attorneys: Edward Sklar, Elaine Yama and Michael Smith, a founding
shareholder. In fact, Ms. Yama states she did not write, but merely incorporated, the
distorted and incorrect legal arguments from the Trial De Novo brief written by Mr.
Sklar.10 See Doc. 154. This raises question whether a culture of misrepresentation
and deception exists at Lozano Smith, if an attorney more senior than Ms. Yama
(who already has seven years experience), submitted the previously discussed
misleading and inaccurate legal papers.
10 Such actions violate Rule 11. See Rachel, 831 F.2d at 1508.
Lozano Smith contends, without citation, that recklessness alone is not enough for
sanctions under 28 U.S.C. § 1927. Doc. 136 at 5:11 and at 6:9-11. This is not
entirely accurate. Under Fink v. Gomez, 239 F.3d 989 (9th Cir. 2001), the Ninth
Circuit recently reconciled its prior cases and stated: “[R]ecklessness suffices for §
1927, but bad faith is required for sanctions under the court’s inherent power.” Id.
(Emphasis added.)
Lozano Smith appears not to fully recognize the severity of the problems created by
its lack of professionalism or still believes that it and Ms. Yama have not “really”
breached their professional responsibilities. Lozano Smith argues Ms. Yama’s
actions were careless or inadvertent, but not in bad faith, because she did not
knowingly or recklessly raise a frivolous argument or argue for the purpose of
harassing her opponent. Doc. 136 at 5:20-23. This argument is untenable given the
substantial evidence that Ms. Yama had ample notice and opportunity to correct the
mistakes which were expressly identified by Plaintiff’s counsel, yet repeatedly
submitted by Defendant’s counsel to the Court.
Lozano Smith also reiterates Ms. Yama’s specious argument that she relied on the
Hearing Officer’s characterization of the facts of the case. Id. at 5:24-27. Contrary to
this assertion, Ms. Yama cited to the administrative record and the hearing
transcript, not the hearing officer’s decision, to support her misstatements of fact.
Their claim is specious that it is the hearing officer’s fault. Lozano Smith and Ms.
Yama were not entitled to rely on the hearing officer’s errors in reciting facts, when
the available evidentiary record was to the contrary and should have been their
reference source for de novo judicial review.
Lozano Smith contends that it was entitled to rely upon the Hearing Officer’s legal
and factual conclusions based on 5 C.C.R. 308511 and, therefore, because the
Hearing Officer reached a “legal conclusion” that the accommodations provided
under Section 504 of the Rehabilitation Act of 1973 . . . fulfilled the District’s
obligations under the Individuals With Disabilities Education Act,” the law firm
engaged in no wrongful conduct by arguing that 504 accommodations satisfy IDEA.
See Doc. 150 at 2:4-7. Lozano Smith’s post hoc explanation does not accurately
describe the errors included in its Motion for Summary Judgment brief nor does it
accurately describe the Hearing Officer’s findings.
The Hearing Officer never determined “that the accommodations provided under
Section 504 of the Rehabilitation Act of 1973 . . . fulfilled the District’s obligations
under the Individuals With Disabilities Education Act.” See Doc. 150 at 2:4-7. The
Hearing Officer determined the District denied Robert a FAPE, i.e., the District did
not fulfill its obligations under IDEA. See AR 2243-2253a at 2251. The Hearing
Officer went on to say that, despite this denial of a FAPE, “Robert suffered no
education prejudice from the District’s failure,” and Robert was therefore “not
entitled to relief in the form of compensatory education.” The Hearing Officer
concluded (erroneously) that Robert was performing at the college level and was
therefore not in need of compensatory education. At no point did the Hearing
Officer find that Section 504 accommodation fulfills IDEA requirements – with
respect to Robert, or in general.
11 Lozano Smith incorrectly cited this statute simply as “section 3085 of the
California Code of Regulations,” requiring a search through the entire Code outline
and multiple sub-outlines to eventually find the statute referred to by Lozano Smith.
The correct citation is 5 C.C.R. 3085.
The offending presentation of law and facts regarding this particular issue begins
on page 30 and continues through page 31 of Defendant’s Points and Authorities in
Support of its Motion for Summary Judgment, Doc. 80. Lozano Smith states, “While
the Hearing Officer did determine that there was a ‘procedural’ denial of a FAPE in
Plaintiff’s sophomore and junior years . . ., substantively, the finding was made that
Plaintiff was provided a FAPE based on the accommodations and services provided
to Plaintiff under Section 504 of the Rehabilitation Act of 1973.” (Emphasis in
original). Lozano Smith then states IDEA promises Plaintiff no more than “an
educational benefit.” Id. at 31:10. Under a section headed “The Law” Lozano Smith
provides citations regarding the appropriate measure of compensation under IDEA
and then continues:
In the case at bar, Plaintiff was provided with services that allowed him to graduate
from high school in the standard four-year time period. The Hearing Officer, after
considering and carefully evaluating all of the evidence, determined that the Plaintiff
suffered no educational detriment and was afforded an educational benefit. The
IDEA promises him no more.
Recent special education decisions deny a remedy where, despite procedural error,
there was no adverse educational impact. South Portland School Dept., 22
IDEL4256 (Me, 2000) . . .
Procedural flaws do not automatically require a finding of a denial of FAPE. (See, W.
G. v. Board of Trustees of Target Range School District, 960 F.2d 1479, 1484 (9th
Cir. 1992). In fact, the U.S. Supreme Court defined what is meant by a ‘free
appropriate public education’ and concluded that the IDEA does not require that a
student be provided with the best available special education services or that the
services maximize each child’s potential. It also concluded that the basic floor of
opportunity provided by the Act consists of access to education which provides
some educational benefit.
Under Gregory K., the Ninth Circuit upheld the appropriateness of a District’s
placement if it was reasonably calculated to provide a student with educational
benefits. Gregory K., supra, at 1314.
Doc. 80, Def.’s Memo re Summary Judgment, at 31:7-23 (emphasis added).
Under the next section headed, “Eligibility,” Lozano Smith states:
At the hearing, Defendant did not believe Plaintiff was eligible for special education
services under any criteria of IDEA, Plaintiff’s disability of CFS was recognized as a
disability which actively limited Plaintiff’s ability to learn. As such, disability is defined
under Section 504 of the Rehabilitation Act of 1973 [citation]. Based on this
disability the District believed it provided Plaintiff a FAPE, by implementing
appropriate accommodations and services to meet his unique needs, as required by
the Rehabilitation Act. [Citation]. Nonetheless, whether Plaintiff was receiving
educational assistance pursuant to the IDEA or Section 504 of the Rehabilitation
Act, the question remains: was the student receiving an educational benefit from the
District which addressed Plaintiff’s unique needs? Here, Plaintiff’s disability has
always been symptoms based upon his chronic fatigue syndrome. His needs are no
different under the IDEA or the Rehabilitation Act of 1973. In fact, the FAPE
requirement of the Rehabilitation Act is similar to the requirements of the IDEA. The
Hearing Officer determined that Plaintiff was eligible under the IDEA and then
appropriately examined the evidence to determine whether Plaintiff received an
educational benefit or whether he was owed compensatory education services. The
facts clearly show, and the Hearing Officer correctly found[,] that [sic] District
implemented the necessary accommodations and services, and Plaintiff was
provided an educational benefit. Thus, he does not require any additional education.
Id. Lozano Smith went beyond mere vigorous advocacy for its client. It intentionally
omitted the full citation as discussed infra,12 which contained law contrary to its
position and it intentionally argued that 504 accommodations were equal to
Compliance under the IDEA.
The Memorandum Opinion and Order in the underlying action, Doc. 102, thoroughly
discusses a school district’s complete lack of discretion to not comply with the IDEA
as opposed to substituting alleged performance under Section 504 of the
Rehabilitation Act. See Doc. 102 at 159-160. This is more than coincidence – legal
interpretations hold section 504 simply cannot replace IDEA: “Both section 504 and
IDEA have been interpreted as requiring states to provide a free appropriate public
education to qualified handicapped persons, but only IDEA requires development of
an IEP and specifically provides for transition services to assist students [to]
prepare for a post high school environment. See 20 U.S.C. § 1401(a)(2). Under the
statutory scheme, the school district is not free to choose which statute it prefers.”
Id. at 1376. See also Muller v. Committee on Special Education of the East Islip
Union Free Sch. Dist., 145 F.3d 95, 105 (2d Cir. 1998) (once a student is entitled to
benefits under IDEA, the district “should have devised an IEP to meet [the student’s]
unique needs in compliance with the provisions of IDEA, and its proposed plan
under Section 504 of the Rehabilitation Act was not an adequate substitute.”).
12 “Procedural flaws do not automatically require a finding of a denial of a FAPE.
However, procedural inadequacies that result in the loss of educational opportunity,
or seriously infringe the parents’ opportunity to participate in the IEP formulation
process clearly result in the denial of a FAPE.” W.G. v. Board of Trustees of Target
Range School Dist. No. 23, 960 F.2d 1479, 1484 (9th Cir. 1992) (emphasis added).
It is difficult to comprehend what part of “no choice” Lozano Smith does not
understand when it states there is a “dearth of definitive guidance from the courts
as to whether Section 504 accommodations could under any circumstances provide
FAPE in lieu of services written into an IEP, particularly in the Ninth Circuit.”13 Doc.
150 at 3. While Lozano Smith claims justified deference to the Hearing Officer’s
decision on the issue, the section of its brief subject to sanctions does not quote an
explicit misstatement of law by the Hearing Officer that Lozano Smith repeats;
Lozano Smith independently mischaracterizes the law, including an intentional
exclusion of applicable case law stating the opposite principle. Lozano Smith
intentionally asserted 504 accommodations are legally equivalent to compliance
under the IDEA, despite clear law to the contrary. Lozano Smith’s argument that Ms.
Yama’s and its own actions are not bad faith evidences a failure to understand or
acknowledge the history of this case and to refuse to accept responsibility for what
occurred.
13 The cases cited above are not from the Ninth Circuit, however, they provide
explicit guidance on the issue and cannot be interpreted to mean anything other
than what they say. Lozano Smith’s “no guidance” argument is specious and
provides no basis for misstating the law or mischaracterizing the facts.
Lozano Smith had actual notice as early as 2001 that there were issues regarding
its potential wrongdoing in this case. On November 8 and November 26, 2001,
Plaintiff’s attorney notified Lozano Smith attorneys Edward Sklar, Elaine Yama and
Michael Smith, of their multiple transgressions with respect to misciting the
administrative record. See Graves Decl. Regarding Evidence, Doc. 151, Exh. D and
E. Plaintiff twice explicitly requested that Lozano Smith correct its misstatements to
the court and at least one time Plaintiff threatened to submit a motion for sanctions
on the issue.14 Id. Yet Lozano Smith took absolutely no action in response and
continued to misrepresent the record in its later Summary Judgment briefs.
Many of the misstatements of law and fact are incorporated in both sets of
Defendant’s briefs – and the first set was apparently not written by Ms. Yama. At
least one of the documents (cited above for misstating facts and law) was personally
signed by Michael Smith, a founding shareholder of Lozano Smith. See Doc. 87,
Def.’s Opposition re Summary Judgment at 30. Mr. Smith’s statement that he simply
“glanced at the document,” made editorial changes and signed it violates Rule 11.
The rule is designed to “eliminate the defense of personal ignorance of defects in a
paper challenged as unmeritorious.” See Zaldivar, 780 F.2d at 830 (“The Rule
admits of no exceptions to the requirement that all reasonable attorneys will read a
document before filing it in court.”).
14 Plaintiff’s warnings were directed to Defendant’s Trial De Novo briefs –
apparently submitted by Mr. Sklar.
More importantly, the problems with counsel’s conduct were referenced by Plaintiff
in his filings throughout the course of the case, yet Lozano Smith made no
investigation or attempt whatsoever to correct the problems, despite Plaintiff’s direct
requests that it do so. When Lozano Smith faxed to the District a copy of Ms. Grave’
s November 8, 2001, letter threatening sanctions if the firm did not correct its
misrepresentations to the court, Mr. Sklar of Lozano Smith, stated to the District,
“Received from Maureen Graves. Nothing really to respond to, but call me if any
questions.” See attachments to Doc. #150.
It is incomprehensible that none of the three defense attorneys of record paid any
attention to Plaintiff’s letters accusing Lozano Smith and its client of misconduct and
threatening a sanctions motion. It is equally incomprehensible that: 1) Mr. Sklar felt
there was “nothing to respond to” in Plaintiff’s letter threatening a sanctions motion
for Lozano Smith’s abusive practices; and 2) that the same misstatements made in
the Trial De Novo briefs were repeated in the Summary Judgment briefs despite
Plaintiff’s detailed complaints.
Lozano Smith’s and Ms. Yama’s culpability is aggravated by the fact that their one
and only response to Plaintiff’s accusations of misconduct came in their Reply Brief
where they assert that they have been “nothing but honest and candid with the
court.” Doc. 91 at 1:20-23. Lozano Smith and Ms. Yama reviewed the Plaintiff’s
accusations and dismissed them. Such conduct is inconsistent with their proclaimed
sincerity, characterizing the misstatements made in the briefs as “mistakes” or due
to a “misunderstanding” or “confusion” surrounding the procedures and the large
administrative record.
Lozano Smith is a purported expert in this area of law; it knows the laws, knew its
client had no legitimate legal basis for its position, and apparently believed the
Court would accept their misrepresentations and rubber stamp the Hearing Officer’s
erroneous decision.
Ignorance is no defense. Zaldivar, 780 F.2d at 830. Lozano Smith’s malfeasance
was clearly and repeatedly drawn to their attention by Plaintiff. Yet Lozano Smith
deliberately ignored the notice it received, assuming the Court would be too busy or
too indifferent to take the time necessary to find the truth.
Based on the totality of the circumstances, there is no way to interpret Lozano Smith’
s submissions of multiple misleading pleadings under the signature of no less than
three attorneys as anything other than a bad faith attempt to mislead the Court
about the facts and the law to gain the advantage of prevailing without regard to the
true facts and accurate statements of the law. Given Lozano Smith’s steadfast
refusal to address any of Plaintiff’s repeated complaints about its malfeasance
(other than to flatly deny it in one Summary Judgment brief, see Doc. 91 at 1), no
other conclusion can be drawn but that its actions were in bad faith to harass the
Plaintiff and to obstruct the ascertainment of truth in this case. That Lozano Smith is
an expert in this area of law only compounds the severity of its violations. See
Worrell v. Uniforms To You & Co., 673 F.Supp. 1461, 1465 (N.D. Cal. 1987) (“That
counsel with extensive experience in the area of labor and employment law could
assert such an erroneous view of the law regarding Title VII raises a strong
inference that there was an improper purpose behind the pleadings.”). Lozano
Smith assigned Jerome Behrens, Esq., a respected and competent member of their
firm to address the Order to Show Cause proceedings. Mr. Behrens had no
knowledge of or participation in any of the conduct nor did he have any
responsibility for the firm’s handling of the case. This, however, does not excuse the
firm’s ethical obligations.
Lozano Smith’s actions are sanctionable under Rule 11(b)(1), (3) and (4) for
submitting pleadings asserting meritless objections and false statements of facts.
Lozano Smith’s actions are also sanctionable under 28 U.S.C. § 1927 and the Court’
s inherent power, for bad faith attempts to mislead the Court, and to obstruct and
multiply the proceedings, and to harass the Plaintiff.15
Lozano Smith is being sanctioned under Rule 11 for the frivolous objections,
misstatements of fact and law contained in its Trial De Novo and Summary
Judgment pleadings. Lozano Smith is being sanctioned under 28 U.S.C. § 1927 and
the Court’s inherent power, for its bad faith steadfast refusal to correct these errors
when faced with repeated, explicit notices that it was conducting itself unethically, in
violation of its duty of truth and candor to the Court, and its efforts to harass the
Plaintiff.
15 At a minimum, Lozano Smith’s actions amount to sanctionable recklessness and
knowing conduct in that it ignored repeated warnings it was misrepresenting the
facts and in fact is was misrepresenting the facts.
E. Defendant, Bret Harte Unified School District
Defendant Bret Harte Unified School District chose not to submit its own briefs
regarding the Order to Show Cause, or to separately appear, despite it being
named in the Order to Show Cause.16 Defendant did, however, answer fifteen
interrogatories authorized by the Court and propounded by Plaintiff, which
document the District’s significant involvement in this case and actual knowledge of
and receipt of notice during the proceedings, of its attorneys’ misconduct.17
In answer to Interrogatories 3 and 13, Defendant admits it received Ms. Graves’
November 8, 2001, letter, the first of the two by Plaintiff calling upon Defendant to
stop misstating the record and to correct its misstatements with the Court. This letter
threatens a motion for sanctions absent corrective action by Lozano Smith. See
Graves Declaration Regarding Evidence, Doc. 151, Exh. G at 6 and 19. However, in
direct contradiction to its answer to Interrogatory Number 8, the District states:
I did not receive a copy of the correspondence dated November 8, 2001, from
Plaintiff’s counsel, Ms. Maureen Graves, and I was not provided that document by
Lozano Smith. Since I did not receive a copy of the correspondence from Plaintiff’s
counsel dated November 8, 2001, I did not respond to any of the allegations of
misrepresentation of fact and law contained therein.
Id. at 13. Lozano Smith has submitted fax transmission confirmation sheets showing
that it faxed and Defendant did indeed receive this letter. See attachments to Doc.
150.
16 The court raised the issue of conflict between the District and its attorneys in the
OSC matters.
17 The answers to these interrogatories were submitted by Plaintiff’s counsel. See
Graves Decl. regarding evidence, Doc. 151, Exhibit G.
In answer to Interrogatory Number 5, the District admits it read the Trial De Novo
Briefs submitted on its behalf as well as Plaintiff’s reply brief (which contains
numerous complaints about Defendant’s misrepresentations). See Graves Decl.
Regarding Evidence, Doc. 151, Exh. G at 10-11. In answer to Interrogatory Number
6, Defendant admits it read the brief but claims it did so after the brief was submitted
to the Court, and therefore, the District “did not attempt to correct any
misstatements of fact or misleading representations on factual matters.” Id., Exh. G
at 12-13. Defendant’s statement that because the briefs were already submitted to
the Court it made no effort to correct any misstatements contained in the briefs, is
an abdication of the duty of candor any party owes the court. In-house counsel
reviewed the briefs and, as an attorney licensed to practice law in California, is
under the same ethical responsibilities as Defendant’s outside counsel to see that
only truthful and accurate information is submitted to the Court.
The District, as a party, has a duty to be honest and to correct any factual errors, to
notify its attorneys to enable them to file corrections or amended papers and to
ensure the same mistakes were not repeated in future pleadings. Rule 11 applies to
parties as well as their counsel. See Rachel v. Banana Republic, Inc., 831 F.2d
1503, 1508 (9th Cir. 1987).
In answer to Interrogatory Number 9, the District admits it was provided a copy of
Plaintiff’s November 26, 2001, letter and addresses its discussion of the settlement
issues contained in this letter.18 However, the District ignores that portion of the
Interrogatory that inquires, “Please describe, in detail, the District’s review of and
response to the settlement correspondence dated November 26, 2001, and the
allegations regarding misrepresentations of fact and law contained therein.” Graves
Decl. Regarding Evidence, Doc. 151, Exh. G at 13-14 (emphasis added). The
District provides no response regarding what steps it took to correct the
misstatements of fact contained in its pleadings after a second notification from
Plaintiff on November 26, 2001. From Defendant’s evasive answer it is inferred that
the District purposefully took no steps to correct any misstatements it found in the
first round of briefs and intentionally let its counsel continue to repeat those
misstatements in the later Motion for Summary Judgment briefs.
The District took a hard line position, despite its obvious and knowing violations of
IDEA, and chose to wait until after Summary Judgment was granted against it before
it settled with Plaintiff. The District was entitled to a hearing on summary judgment
and is not being sanctioned for asserting its position on the merits of plaintiff’s
claims.
The District had an obligation to correct the many factual misstatements contained
throughout its papers, especially since it was given notice by plaintiff regarding
allegations of misconduct and because it had its own in-house attorney review these
briefs and Plaintiff’s letters. By not correcting the errors contained in the initial Trial
De Novo briefs, despite notice of such errors, the District joined the bad faith
perpetration of those falsehoods in the subsequent briefs submitted to the Court.
“Bad faith” exists, not only in the actions that led to the lawsuit, but also in the
conduct of the litigants. Roadway Express, 447 U.S. at 766.
18 The District also acknowledges receipt of this letter in answer to Interrogatory
Number 11. See id.
The only reasonable conclusion is that the District intentionally chose to ignore the
warnings it received that it was misrepresenting the truth to the Court, in an effort to
mislead the Court and to prolong the proceedings in the hope that Plaintiff would
give up. The District’s conduct rises to bad faith. The power to sanction the District
exists under Rule 11, § 1927, and the Court’s inherent authority. See Roadway
Express, 447 U.S. at 766.
The District should be sanctioned under the Court’s inherent powers for its bad faith
efforts to deceive the court by not addressing and correcting the obvious
misstatements of fact contained in its Trial De Novo briefs and by allowing these
errors, and others specified above, to be perpetuated in their Summary Judgment
briefs. This conduct was obstructive and manifestly multiplied the proceedings.
F. Nature of Sanctions
Lozano Smith has submitted declarations that it recognizes the seriousness of its
conduct in this case and has or will conduct attorney training in ethics and that Ms.
Yama has been disciplined by the firm due to her misconduct. These “voluntary”
actions are appropriate and recognized as a good faith effort to address the harm
perpetrated on the system of justice. These remedial actions are inadequate to
redress the totality of the harm visited upon the plaintiff and the legal system.
Lozano Smith, Ms. Yama and the District all engaged in egregious conduct, whether
by commission or omission. Their “solution” does not recompense Plaintiff for his
increased litigation costs caused by their malfeasance,19 or the unjustified burden
on the Court, nor provide the necessary deterrent effect.
The actions of Lozano Smith significantly increased the Court’s work on the case,
both in the effort required to identify and verify the numerous misstatements in the
pleadings in order to resolve the underlying issues on the merits, but separately to
address the ethical violations in the Order to Show Cause proceedings and this
decision.
The submissions of Ms. Yama, Lozano Smith and the District belie true
comprehension of the seriousness of their transgressions against Plaintiff, the Court
and the justice system. The District evinced no interest in these proceedings and
was intentionally unwilling to truthfully or completely answer the Interrogatories
propounded by Plaintiff under Court order. The evasive and contradictory answers
by the District indicate a complete lack of respect for the judicial process. In respect
to these Order to Show Cause proceedings, the District, which was severally noticed
as a respondent, did not even send its own independent representative or
separately address the Court’s questions about the improper conduct that was used
on its behalf in an attempt to gain advantage over the Plaintiff. The District was
represented by its own attorney in the underlying case, independent of Lozano
Smith, which is more disturbing. The District reviewed and sought to benefit from its
litigation counsel’s misconduct, and has ignored its responsibility to respond in this
proceeding. Despite noting the appearance of conflict between Lozano, Smith, Ms.
Yama, and the District in this proceeding, the District remained silent. The District
must be independently sanctioned.
19 It is acknowledged that Lozano Smith offered Plaintiff’s attorney $15,000 for
attorney’s fees to cover these costs and that Plaintiff deferred to the Court the
resolution of any monetary sanctions.
IV. CONCLUSION
The totality of the sanctioned conduct visits an unendurable burden on the justice
system in the name of misguided advocacy. It is appropriate that a public record be
made of this conduct for the purpose of deterrence, particularly as it implicates
unacceptable written advocacy and obstruction which violates rules of court and
professional conduct, forcing an opposing party and the court to spend inordinate
time addressing such issues.
For the reasons above stated, IT IS ORDERED:
1. Ms. Elaine Yama, Lozano Smith and Bret Harte Unified School District, as a party,
engaged in bad faith litigation tactics through their systematic and repeated
misstatements of the record, frivolous objections to Plaintiff’s statement of facts, and
repeated mischaracterizations of the law.
2. Under FRCP Rule 11, 28 U.S.C. § 1927, and the Court’s inherent powers, Ms.
Yama is ordered to personally pay Plaintiff and his counsel $5,000 for the increased
costs and expenses related to causing Plaintiff’s need to repeatedly respond to
Defendant’s blatant misrepresentations, throughout the four year history of this
litigation; Ms. Yama is PUBLICALLY REPROVED and ordered to attend 20 hours of
CLE ethics training in programs approved by the California State Bar Association by
December 31, 2005, and must submit proof of such training to the Court by
December 31, 2005; training received by Ms. Yama while this decision was pending
will count towards this requirement. Proof of training must be submitted when the
training is complete, not piecemeal.
3. Under Rule 11, 28 U.S.C. § 1927, and its inherent powers, Lozano Smith is
ordered to pay Plaintiff and his counsel $5,000 for the increased costs and
expenses related to Plaintiff’s need to repeatedly respond to Ms. Yama’s
misrepresentations, and briefs on which partners of the firm were appearing
counsel, throughout the four year history of this litigation. Lozano Smith is
PUBLICALLY REPROVED. Lozano Smith is further ordered to provide a minimum of
6 hours of CLE ethics training for all its associates and shareholders, in programs
approved by the California State Bar Association, by December 31, 2005, and must
submit proof of such training to the Court by January 30, 2006; training received
while this opinion was pending will count towards this requirement. Proof of training
must be submitted when the training is completed, and not piecemeal.
4. Under Rule 11 and the Court’s inherent power, Bret Harte Unified School District,
a party, is ordered to pay to plaintiff Robert Moser the sum of $5,000 for his
expense, inconvenience, and delay for its role in obstruction, delay in relief, and
unnecessarily multiplying the proceedings in this case.
The payment of such sanctions shall be made within forty (40) days following the
date of service of this decision by the clerk of court.
A copy of this decision shall be served on the California State Bar Association by
the Clerk of Court.
SO ORDERED.
DATED: January 12, 2005
Oliver W. Wanger
UNITED STATES DISTRICT JUDGE