T.M.-J. v. Vallejo City Unified School District ( 2024 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 T.M.-J., No. 2:23-cv-02141-TLN-SCR 12 Plaintiff, 13 v. ORDER 14 VALLEJO CITY UNIFIED SCHOOL DISTRICT and FAIRFIELD SUISUN 15 UNIFIED SCHOOL DISTRICT, 16 Defendants. 17 18 This matter is before the Court on Defendant Vallejo City Unified School District’s 19 (“VCUSD”1) Motion to Dismiss. (ECF No. 15.) Plaintiff T.M.-J. has filed an opposition. (ECF 20 No. 16.) VCUSD has filed a reply. (ECF No. 18.) For the reasons set forth below, the Court 21 GRANTS VCUSD’s motion. 22 /// 23 /// 24 /// 25 /// 26 1 Defendant Fairfield Suisun Unified School District (“FSUSD”) is also a named Defendant 27 in this action. For ease of reference in referring to Plaintiff’s time spent in both school districts, the Court will refer to each school district by its own acronym. The Court will refer to VCUSD 28 and FSUSD collectively as “Defendants.” 1 I. FACTUAL AND PROCEDURAL BACKGROUND 2 This case arises from Plaintiff’s time spent as a student at VCUSD from the 2013-2014 3 school year through the 2017-2018 school year. (See ECF No. 1.) In short, Plaintiff alleges 4 VCUSD has unlawfully and discriminatorily denied him a free appropriate public education 5 (“FAPE”) as guaranteed by the Individuals with Disabilities Education Act (“IDEA”) and § 504 6 of the Rehabilitation Act. (Id.) 7 As of the filing of the Complaint, Plaintiff was 18 years old, in twelfth grade, and eligible 8 for special education. (Id. at 9.) During the 2012-2013 school year through the 2017-2018 school 9 year, Plaintiff completed first through sixth grade at Wardlaw Elementary School and Hogan 10 Middle School, both schools within VCUSD.2 (Id. at 9–24.) Plaintiff alleges his individualized 11 education plans (“IEPs”) and report cards reflected information about his significant academic 12 difficulties, especially in all areas of reading, but Defendants asserted Plaintiff’s deficits were due 13 to attentional issues and behaviors related to his diagnosis of attention deficit hyperactivity 14 disorder (“ADHD”). (Id. at 9.) Plaintiffs contend these “misrepresentations” resulted in his 15 parents’ lack of knowledge of the true reason for his academic deficits — a significant learning 16 disability. (Id.) 17 Plaintiff alleges that “Defendants’ failure to execute proven remedies to ensure [Plaintiff], 18 a student with a disability, has equal access to literacy is evidenced by the assessment data 19 collected by” VCUSD and FSUSD, Plaintiff’s progress on his IEP goals, report cards, and, more 20 broadly, the documentation by the State of California via the California Assessment of Student 21 Performance and Progress (“CAASPP”) and the School Dashboard. (Id. at 8.) Plaintiff sets forth 22 specific allegations with respect to each school year. (Id. at 10–23.) In the summer of 2018, 23 Plaintiff and his family relocated to Fairfield. (Id. at 23.) 24 On April 28, 2023, Plaintiff filed a Due Process Complaint with the California Office of 25 Administrative Hearings (“OAH”). (Id. at 35.) Plaintiff alleged VCUSD denied Plaintiff a FAPE 26 2 Although Plaintiff alleges VCUSD unlawfully discriminated against him starting in the 27 2013-2014 school year, Plaintiff sets forth allegations starting with the 2012-2013 school year. As Plaintiff’s claims are only with respect to the 2013-2014 through 2017-2018 school years, the 28 Court will only summarize Plaintiffs allegations starting with the 2013-2014 school year. 1 for the 2013 to 2014 through 2017 to 2018 school years, including extended school years, by: 2 failing to offer or provide an evidence-based structured literacy program; failing to provide appropriate goals in all areas of need; 3 failing to offer adequate and appropriate specialized academic instruction to address deficits in math, written expression, and 4 executive functioning; failing to offer assistive technology devices, software, and applications; failing to offer adequate 5 accommodations; failing to offer a behavior support plan and behavior services; and failing to offer extended school year services. 6 7 (Id. at 5.) On June 30, 2023, Administrative Law Judge (“ALJ”) Cole Dalton issued an order 8 granting Defendants’ motion to dismiss portions of the complaint. (Id. at 35.) The ALJ 9 determined the “allegations [were] limited by the two-year statute of limitations” and “[a]ll claims 10 preceding April 28, 2021 [were] time barred and dismissed.” (Id.) The ALJ ordered, among 11 other things, the motion to dismiss VCUSD as a party was granted and the matter would proceed 12 only against FSUSD. (Id. at 35–36.) Plaintiff appeals the ALJ’s order pertaining to the dismissal 13 of issues against VCUSD preceding April 28, 2021. (Id. at 36.) 14 Plaintiff filed the Complaint on September 28, 2023. (See id.) VCUSD filed the instant 15 motion to dismiss on January 26, 2024. (ECF No. 15-1.) Plaintiff filed an opposition on 16 February 7, 2024. (ECF No. 16). VCUSD filed a reply on February 20, 2024. (ECF No. 18.) 17 II. STANDARD OF LAW 18 A motion to dismiss for failure to state a claim upon which relief can be granted under 19 Federal Rule of Civil Procedure (“Rule”) 12(b)(6) tests the legal sufficiency of a complaint. 20 Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). Rule 8(a) requires that a pleading contain 21 “a short and plain statement of the claim showing that the pleader is entitled to relief.” See 22 Ashcroft v. Iqbal, 556 U.S. 662, 678–79 (2009). Under notice pleading in federal court, the 23 complaint must “give the defendant fair notice of what the claim . . . is and the grounds upon 24 which it rests.” Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007) (internal quotations omitted). 25 “This simplified notice pleading standard relies on liberal discovery rules and summary judgment 26 motions to define disputed facts and issues and to dispose of unmeritorious claims.” Swierkiewicz 27 v. Sorema N.A., 534 U.S. 506, 512 (2002). 28 /// 1 On a motion to dismiss, the factual allegations of the complaint must be accepted as true. 2 Cruz v. Beto, 405 U.S. 319, 322 (1972). A court is bound to give the plaintiff the benefit of every 3 reasonable inference to be drawn from the “well-pleaded” allegations of the complaint. Retail 4 Clerks Int’l Ass’n v. Schermerhorn, 373 U.S. 746, 753 n.6 (1963). A plaintiff need not allege 5 “‘specific facts’ beyond those necessary to state his claim and the grounds showing entitlement to 6 relief.” Twombly, 550 U.S. at 570. 7 Nevertheless, a court “need not assume the truth of legal conclusions cast in the form of 8 factual allegations.” U.S. ex rel. Chunie v. Ringrose, 788 F.2d 638, 643 n.2 (9th Cir. 1986). 9 While Rule 8(a) does not require detailed factual allegations, “it demands more than an 10 unadorned, the defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678. A 11 pleading is insufficient if it offers mere “labels and conclusions” or “a formulaic recitation of the 12 elements of a cause of action.” Twombly, 550 U.S. at 555; see also Iqbal, 556 U.S. at 678 13 (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory 14 statements, do not suffice.”). Moreover, it is inappropriate to assume the plaintiff “can prove 15 facts that it has not alleged or that the defendants have violated the . . . laws in ways that have not 16 been alleged.” Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 17 U.S. 519, 526 (1983). 18 Ultimately, a court may not dismiss a complaint in which the plaintiff has alleged “enough 19 facts to state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 697 (quoting 20 Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual 21 content that allows the court to draw the reasonable inference that the defendant is liable for the 22 misconduct alleged.” Id. at 680. While the plausibility requirement is not akin to a probability 23 requirement, it demands more than “a sheer possibility that a defendant has acted unlawfully.” 24 Id. at 678. This plausibility inquiry is “a context-specific task that requires the reviewing court to 25 draw on its judicial experience and common sense.” Id. at 679. 26 In ruling on a motion to dismiss, a court may only consider the complaint, any exhibits 27 thereto, and matters which may be judicially noticed pursuant to Federal Rule of Evidence 201. 28 See Mir v. Little Co. of Mary Hosp., 844 F.2d 646, 649 (9th Cir. 1988); Isuzu Motors Ltd. v. 1 Consumers Union of U.S., Inc., 12 F. Supp. 2d 1035, 1042 (C.D. Cal. 1998). 2 If a complaint fails to state a plausible claim, “‘[a] district court should grant leave to 3 amend even if no request to amend the pleading was made, unless it determines that the pleading 4 could not possibly be cured by the allegation of other facts.’” Lopez v. Smith, 203 F.3d 1122, 5 1130 (9th Cir. 2000) (en banc) (quoting Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995)). 6 III. ANALYSIS 7 Defendant argues the statute of limitations bars Plaintiff’s claims under the Individual 8 with Disabilities in Education Act (“IDEA”) and § 504 of the Rehabilitation Act. (ECF No. 15-1 9 at 4.) The Court will address each claim in turn, after reviewing the level of deference to be 10 afforded the ALJ’s decision. 11 A. Level of Deference to the ALJ’s Decision 12 In opposition to the instant motion, Plaintiff contends that little deference should be 13 afforded to the ALJ’s order, as the ALJ “failed to cite to or implement the applicable law,” 14 including Avila and its implementing cases. (ECF No. 16 at 17 (citing Avila v. Spokane Sch. Dist. 15 81, 852 F.3d 936, 941–44 (9th Cir. 2017)).) Plaintiff also contends “the ALJ never addressed why 16 parents’ attendance at IEP meetings, review of records, and observation of lack of progress meant 17 that Parents knew or should have known of a denial of FAPE under the IDEA prior to the 2021- 18 2022 school year,” and that prior to this year, Plaintiff’s parents relied upon VCUSD’s “explicit 19 and repeated statements that [Plaintiff’s] lack of progress was due to his deficits in attention, 20 focus, and other ADHD-related symptoms.” (Id. at 18 (emphasis in original).) In reply, VCUSD 21 notes that Plaintiff’s reliance on N.N. for the proposition that little deference should be given to 22 the ALJ’s decision is flawed. (ECF No. 18 at 6 n.4 (N.N. v. Mountain View-Los Altos Union 23 High School Dist., No. 20-cv-08010-VKD, 2022 WL 3109588 (N.D. Cal. Aug. 4, 2022) 24 (“N.N.”).) 25 “[J]udicial review in IDEA cases differs substantially from judicial review of other agency 26 actions, in which courts generally are confined to the administrative record and are held to a 27 highly deferential standard of review.” Ojai Unified Sch. Dist. v. Jackson, 4 F.3d 1467, 1471 (9th 28 Cir. 1993). The Ninth Circuit has stated that courts are to “treat a hearing officer’s findings as 1 ‘thorough and careful’ when the officer participates in the questioning of witnesses and writes a 2 decision ‘contain[ing] a complete factual background as well as a discrete analysis supporting the 3 ultimate conclusions.” R.B., ex rel. F.B. v. Napa Valley Unified Sch. Dist., 496 F.3d 932, 942 4 (9th Cir. 2007 (citing Park, ex rel. Park v. Anaheim Union High Sch. Dist., 464 F.3d 1025, 1031 5 (9th Cir. 2006).) “But neither the duration of the hearing, nor the ALJ’s active involvement, nor 6 the length of the ALJ’s opinion can ensure that the ALJ was ‘thorough and careful.’” M.C. by 7 and through M.N. v. Antelope Valley Union High Sch. Dist., 858 F.3d 1189, 1194 (9th Cir. 2017). 8 “[B]lind deference is not appropriate,” but rather “the district judge must actually examine the 9 record to determine whether it supports the ALJ’s decision.” (Id. at 1194 n.1.) 10 Here, it appears from VCUSD’s reply brief that no administrative hearing was held, but 11 rather Plaintiff affirmatively pleaded all the facts to establish his claims and the ALJ’s decision 12 was made on the briefing. (ECF No. 18 at 6 n.4.) Plaintiff does not provide any information to 13 the contrary. (See ECF No. 16.) To the extent Plaintiff relies on N.N. for the proposition that the 14 ALJ’s decision should not be afforded deference (see ECF No. 16 at 10 (citing N.N., 2022 WL 15 3109588), VCUSD is correct that the circumstances of both cases are different. (ECF No. 18 at 6 16 n.4.) In N.N., the facts were provided at an administrative hearing but in the instant matter 17 Plaintiff has affirmatively pleaded all facts. 18 Further, the Court finds that even though the ALJ did not explicitly state the Ninth 19 Circuit’s articulation of the statute of limitations in Avila, the ALJ did apply the correct legal 20 standard of the “discovery rule.” (See ECF No. 1-5 at 3.) 21 Finally, the ALJ’s written decision (at approximately 10 pages) is not particularly lengthy. 22 The ALJ’s decision seems to be solely based on the allegations in Plaintiff’s complaint and does 23 not refer to any witnesses. While the ALJ did address all the relevant issues, he only went 24 through some of the facts in Plaintiff’s complaint and largely provided a summary of the 25 allegations. Accordingly, the ALJ’s findings do not warrant the same deference afforded to 26 “thorough and careful” findings. 27 /// 28 /// 1 B. Claim One: Violation of the IDEA 2 VCUSD argues the OAH ALJ correctly determined Plaintiff’s allegations were barred by 3 the statute of limitations as to VCUSD. (ECF No. 15-1 at 5–15.) VCUSD argues: (1) Plaintiff’s 4 argument that his parents did not know or have reason to know of the facts underlying the basis 5 for the Due Process Complaint until three years after leaving VCUSD is not supported and 6 directly contradicted by the evidence; (2) Plaintiff’s argument that VCUSD’s 7 “misrepresentations” kept his parents from being able to file a Due Process Complaint is 8 meritless; and (3) Plaintiff does not cite to any authority to support his opinion the ALJ should 9 have considered the issue in connection with an evidentiary hearing. (Id.) The Court will 10 consider each of these arguments in turn. 11 i. Whether the Requirements of the IDEA and California Education 12 Code Have Been Met 13 The IDEA is intended “to ensure that all children with disabilities have available to them a 14 free appropriate public education.” 20 U.S.C. § 1400(d)(1)(A). “A FAPE is defined as an 15 education that is provided at public expense, meets the standards of the state educational agency, 16 and is in conformity with the student’s IEP.” Baquerizo v. Garden Grove Unified Sch. Dist., 826 17 F.3d 1179, 1184 (9th Cir. 2016) (citing 20 U.S.C. § 1401(9).) If a parent or agency initiates a 18 request for an initial evaluation to determine if the child has a disability, the local educational 19 agency must “conduct a full and individual initial evaluation” to determine whether the child has 20 a disability and the child’s educational needs. 20 U.S.C. § 1414(a)(1)(A)–(C). If the evaluation 21 determines that a child has a disability, a team including a local educational agency 22 representative, teachers, parents, and, sometimes the child, formulates an IEP. Id., § 23 1414(d)(1)(B). The local educational agency is required to conduct a reevaluation if it 24 “determines that the educational or related services needs, including improved academic 25 achievement and functional performance, of the child warrant a reevaluation,” or the child’s 26 parents or teacher request a reevaluation. Id., § 1414(a)(2)(A). The IDEA allows parents to file a 27 due process complaint “with respect to any matter relating to the identification, evaluation, or 28 educational placement of the child, or the provision of [FAPE] to such child.” Id., § 1 1415(b)(6)(A). The state educational agency or local educational agency conducts an impartial 2 due process hearing.3 Id., § 1415(f)(1)(A). The IDEA provides for judicial review in state courts 3 and federal district courts if a party disagrees with the administrative findings and decision. Id., § 4 1415(i)(2)(A). 5 The IDEA’s statute of limitations provides: 6 A parent or agency shall request an impartial due process hearing within 2 years of the date the parent or agency knew or should have 7 known about the alleged action that forms the basis of the complaint, or, if the State has an explicit time limitation for requesting such a 8 hearing under this subchapter, in such time as the State law allows. 9 20 U.S.C. § 1415(f)(3)(C) (“§ 1415(f)(3)(C)”) (emphasis added). The California Education Code 10 similarly provides that a request for a due process hearing “shall be filed within two years from 11 the date the party initiating the request knew or had reason to know of the facts underlying the 12 basis for the request.” Cal. Educ. Code § 56505(l) (emphasis added). The Ninth Circuit has 13 clarified that the IDEA’s statute of limitations articulated in § 1415(f)(3)(C) requires courts to 14 apply the discovery rule. Avila, 852 F.3d at 941–44. The Ninth Circuit held that “the IDEA’s 15 statute of limitations requires courts to apply the discovery rule without limiting redressability to 16 the two-year period that precedes the date when ‘the parent or agency knew or should have 17 known about the alleged action that forms the basis of the complaint.’” Id. at 944 (citing § 18 1415(f)(3)(C)) (finding the district court erred in barring Avilas’ claims arising two years prior to 19 the date the Avilas filed their due process complaint and remanding to the district court to address 20 when the Avilas “knew or should have known about the alleged action[s] that form[ ] the basis of 21 the complaint”). 22 VCUSD argues “Plaintiff’s Complaint is replete with allegations that establish his parents 23 knew, or certainly should have known, of the facts underlying the basis for the Due Process 24 Complaint” and the Complaint “makes it very clear that Plaintiff’s parents were kept apprised and 25 knew of his academic deficits and regressions throughout the entirety of the time he attended 26 VCUSD.” (Id. at 6, 9.) VCUSD notes that while it “strongly disputes Plaintiff’s claims and 27 3 In California, the Office of Administration Hearings (“OAH”) conducts these due process 28 hearings. 1 contends it fulfilled all obligations with respect to Plaintiff’s education, there is no question that 2 Plaintiff’s parents had all of the information needed to claim otherwise if they believed he was 3 being denied a FAPE.” (Id. at 9.) VCUSD notes the “ALJ considered the facts alleged in each 4 school year” and correctly ruled based on the allegations of Plaintiff’s Due Process Complaint 5 that his claims were barred by the statute of limitations. (Id. at 11–12.) 6 In opposition, Plaintiff contends that it was not until Plaintiff’s mother “worked with him 7 intensely in a one-to-one setting during independent study” and “was able to control for his 8 attentional issues,” that she found he was struggling to read. (ECF No. 16 at 14.) Plaintiff notes 9 that at this juncture his parents “became suspicious that the years-long account that [his] deficits 10 were solely related to his ADHD-related attention issues was potentially untrue, and ultimately 11 requested he be assessed for dyslexia.” (ECF No. 16 at 14.) Plaintiff cites to several district court 12 cases for the assertion that “a parent’s awareness of underlying facts, such as receipt of reports 13 and participation in the IEP process, does not demonstrate that their child required further 14 assessment for other learning disabilities because some issues require specialized expertise a 15 parent cannot be expected to have.” (Id. at 13 (citing N.N., 2022 WL 3109588; Jessica E. v. 16 Compton Unified Sch. Dist., No. CV16-04356-BRO (MRWx), 2017 WL 2864945 (C.D. Cal. May 17 2, 2017) (“Jessica E.”); J.R. by & through Perez v. Ventura Unified Sch. Dist., 668 F. Supp. 3d 18 1054 (C.D. Cal. 2023) (“J.R.”).) 19 In reply, VCUSD asserts that Plaintiff is effectively arguing that because VCUSD (and 20 FSUSD) did not diagnose Plaintiff with dyslexia, dysgraphia, or dyscalculia, his parents could not 21 have known of the facts underlying their Due Process Complaint. (ECF No. 18 at 3.) VCUSD 22 contends “Plaintiff’s parents did not learn any ‘new facts’ necessary to learn the basis for the 23 request for [the] due process hearing by doing independent study that they did not already know 24 during the time he was at VCUSD.” (Id. at 4.) VCUSD notes that Plaintiff’s parents concede 25 they were able to understand VCUSD denied Plaintiff a FAPE by working with him on 26 schoolwork, which did not require them to be “experts.” (Id.) VCUSD argues Plaintiff’s parents’ 27 “failure to do this before cannot negate their express knowledge[,] as shown by their own 28 allegations, of all necessary facts.” (Id.) VCUSD also notes that the cases upon which Plaintiff 1 relies are inapposite to the instant case. (Id. at 6–8.) 2 Here, the Court finds that Plaintiff knew or should have had reason to know about the 3 facts forming the basis of his Due Process Complaint in each of the school years between 2013 to 4 2014 through 2017 to 2018 while Plaintiff was at VCUSD. There were sufficient facts in every 5 school year for Plaintiff’s parents to observe that he was not making progress and he had 6 demonstrated difficulties specifically in reading and language. In some years, Plaintiff even 7 demonstrated regression. Plaintiff’s own factual allegations in the Complaint make this clear. 8 With respect to the 2013 to 2014 school year (second grade), Plaintiff’s report card 9 indicated he had deficits in all areas of reading, writing strategies and applications, language 10 conventions, and mathematics. (ECF No. 1 at 10.) In May 2014, VCUSD assessed Plaintiff and 11 found him eligible for special education services under the qualifying category of “other health 12 impairment.” (Id.) VCUSD’s 2014 Psychoeducational Assessment Report indicated deficits in 13 phonological awareness and decoding skills, which were significantly impacted by his difficulty 14 segmenting words. (Id.) Plaintiff’s teacher expressed he had difficulty with phonemic awareness, 15 reading fluency, and high frequency words, and a computer-generated report indicated follow-up 16 was needed in the area of a specific learning disability. (Id.) The same report was produced for 17 Plaintiff’s parents. (Id.) At an IEP team meeting on May 30, 2014, the IEP noted his present 18 level of performance did not provide grade level equivalencies but stated that Plaintiff was below 19 grade level. (Id. at 11.) The IEP provided goals in the areas of reading fluency, math, written 20 expression, and self-regulation. (Id.) VCUSD offered Plaintiff thirty minutes of specialized 21 academic instruction (“SAI”) four times per day. (Id.) Plaintiff had not made positive growth. 22 (Id. at 12.) Plaintiff required extended school year services. (Id.) 23 With respect to the 2014 to 2015 school year (third grade), Plaintiff’s report card noted he 24 continued to be below grade level in all areas of reading. (Id. at 13.) The comments noted he 25 began the school year at a “pre-primer” level in reading and ended the school year at the same 26 level. (Id.) The report card also noted Plaintiff was “unable to accurately and independently 27 solve word problems” and that his reading “fluency [was] below proficiency.” (Id. (emphasis 28 added).) At the annual IEP team meeting on February 27, 2015, the baseline of the reading 1 fluency goal noted Plaintiff could read 50 first-grade words in one minute, which would mean his 2 reading skills were at approximately a first-grade level (in third grade). (Id.) Plaintiff has not 3 made positive academic growth and his testing showed a regression in the area of reading. (Id. at 4 14.) Plaintiff required extended school year services. (Id.) 5 With respect to the 2015 to 2016 school year (fourth grade), at the annual IEP team 6 meeting on February 26, 2016, the IEP noted Plaintiff had not met any of his goals from the 7 preceding IEP, he was still reading at a mid-first-grade level, and he made no progress over the 8 prior year. (Id. at 15.) Plaintiff had not made positive growth since first grade and his testing 9 showed regression. (Id. at 16.) Plaintiff required extended school year services. (Id.) Plaintiff’s 10 2016 CAASPP results indicated he was “below standard” in reading and mathematics. (Id.) 11 Plaintiff’s 2015-2016 report card noted he needed reminders to focus during instruction, arrived 12 unprepared, needed to complete work in a timely manner, that he was reading at second-grade 13 level, and he was promoted to fifth grade but that intervention was recommended. (Id.) Plaintiff 14 did not make adequate progress during the 2015-2016 school year. (Id.) 15 With respect to the 2016 to 2017 school year (fifth grade), Plaintiff’s first trimester report 16 card comments noted his reading fluency was “28/110” (it is unclear whether this was a word list 17 or a reading passage with 110 words). (Id. at 17.) Plaintiff teacher noted he was making limited 18 progress in all academic areas and that he had a limited vocabulary. (Id.) Plaintiff’s second 19 trimester report card comments noted his fluency had dropped to “24/131” (similarly uncertain 20 with respect to what this means). (Id. at 18.) Plaintiff’s teacher noted: “I’m sure if he decides to 21 do better, we will see the desired improvement next trimester.” (Id.) VCUSD’s triennial 22 Psychoeducational Assessment Report noted Plaintiff had average verbal abilities, average spatial 23 abilities, and below average nonverbal reasoning abilities. (Id. at 19.) VCUSD’s Academic 24 Assessment Report indicated regression since 2014 in six subtests and reading at a first-grade 25 level. (Id. at 19-20.) At the annual IEP meeting on February 28, 2017, the IEP noted Plaintiff 26 met his reading comprehension at a second-grade level but this was not consistent with his 27 academic assessment indicating reading at a first-grade level. (Id. at 20.) Plaintiff had not made 28 positive growth since the first grade and his testing showed regression. (Id. at 21.) Plaintiff 1 required extended school year services. (Id.) Plaintiff’s report card at the end of the year 2 reported his reading fluency score was “18/139” (similarly uncertain with respect to what this 3 means). (Id. at 21.) This was a regression from the beginning of the school year. (Id.) Plaintiff 4 did not make adequate progress during the 2016-2017 school year. (Id. at 22.) 5 With respect to the 2017 to 2018 school year (sixth grade), at the annual IEP meeting on 6 February 23, 2018, VCUSD placed Plaintiff in a special day class. (Id. at 23.) Plaintiff had not 7 made positive growth since first grade and his testing showed regression. (Id. at 24.) Plaintiff 8 required extended school year services. (Id.) Plaintiff did not make adequate progress during the 9 2017-2018 school year. (Id.) 10 Based on the foregoing allegations with respect to each school year, it is evident that 11 Plaintiff knew or should have had reason to know about the facts forming the basis of his Due 12 Process Complaint while he was at VCUSD. The ALJ provides an adequate summary of 13 Plaintiff’s allegations in total: 14 On these facts, Parents attended IEP meetings, received report cards, and reviewed assessments with the IEP team. Parents observed, on 15 a yearly basis that [Plaintiff] did not progress appropriately and that testing showed regression. On this basis, the face of the complaint 16 alleges facts demonstrating that Parents knew or had reason to know of the facts underlying the basis of [Plaintiff’s claims against 17 VCUSD]. 18 (ECF No. 1-5 at 6.) Accordingly, the Court finds that Plaintiff’s parents knew or should have had 19 reason to know about the facts forming the basis of his Due Process Complaint anywhere from 20 five to nine years before Plaintiff ultimately filed it with OAH on April 28, 2023. (ECF No. 1 at 21 35.) 22 The Court finds the case law Plaintiff cites in support of his proposition that “a parent’s 23 awareness of underlying facts, such as receipt of reports and participation in the IEP process, does 24 not demonstrate that their child required further assessment for other learning disabilities because 25 some issues require specialized expertise a parent cannot be expected to have” to be inapposite. 26 (See ECF No. 16 at 13.) 27 /// 28 1 With respect to N.N., Plaintiff contends the court addressed the “knew or had reason to 2 know” discovery rule and noted that “the pertinent question in the matter was when the parent 3 knew or had reason to know of the school district’s alleged denial of a [FAPE] under the IDEA, 4 not necessarily when she became aware of student’s condition or that the school district acted or 5 failed to act.” (Id. at 9 (emphasis in original) (citing N.N., 2022 WL 3109588, at *23).) Plaintiff 6 appears to argue N.N. stands for the proposition that an individual “knew or has reason to know” 7 of a school district’s alleged denial of FAPE when he or she becomes aware “the school district 8 could have assessed [a] student for special education” or when notified of “a right to request a due 9 process hearing.” (Id. at 10.) Plaintiff is incorrect. In N.N., defendant contested application of 10 the discovery rule and the court applied Avila’s standard, concluding the parties did not “seriously 11 dispute” plaintiff mother “reasonably knew or had reason to know of [defendant’s] alleged failure 12 to provide [plaintiff student] with a FAPE by May 1, 2018,” when she requested a special 13 education assessment and had already consulted with an educational consultant and education law 14 attorney. N.N., 2022 WL 3109588, at *24. The court does not state the point at which an 15 individual “knew or had reason to know” is when an individual becomes aware of the right to 16 request a due process hearing or to be assessed for other learning disabilities, as Plaintiff seems to 17 suggest. (See ECF No. 16 at 13.) In the instant matter, application of the discovery rule and the 18 standards articulated in Avila are applicable and VCUSD does not contest application of this 19 standard. (ECF No. 18 at 6.) 20 With respect to Jessica E., Plaintiff argues again “the ‘knew or had reason to know’ date 21 stemmed from the date the parent knew of an alleged denial of FAPE,” and that some issues 22 “require[ ] specialized expertise a parent cannot be expected to have.” (ECF No. 16 at 10 (citing 23 Jessica E., 2017 WL 2864945, at *5–6).) It is true that the Jessica E. court notes that “whether a 24 parent knew or had reason to know stems from when parents know of an alleged denial of FAPE, 25 ‘not necessarily when the parents became aware that the district acted or failed to act.’” Jessica 26 E., 2017 WL 2864945, at *7 n.3. However, VCUSD is correct that “there was, and continues to 27 be, far more than the mere fact that Plaintiff’s parents participated in the IEP process that supports 28 the ALJ’s decision,” as 1 Not only was there five years of IEP processes at VCUSD that Plaintiff’s parents were involved in, there were also numerous 2 assessments of Plaintiff showing lack of progress and regression, communications from teachers regarding Plaintiff’s lack of progress 3 and regression, and Plaintiff’s own acknowledgement that each and every year he was at VCUSD, he did not make adequate progress. 4 5 (ECF No. 15-1 at 12.) Further, Plaintiff argued before OAH that his parents “did not know or 6 have reason to know of these denials of FAPE before the 2021-2022 school year, when [they] 7 worked with him closely while he was on independent study and discovered that he still had 8 significant reading deficits even when his behavioral deficits were addressed.” (ECF No. 1-3 at 9 8.) Plaintiff alleges in his Complaint that his mother moved him to an independent study program 10 to see if that would enable him to attain passing grade, and she suspected Plaintiff’s reading 11 deficits were not due to attention as she provided him with one-to-one instruction. (ECF No. 1 at 12 31, 33.) It was only after this point that Plaintiff’s mother requested that he be assessed for 13 dyslexia. (Id. at 33.) First, by Plaintiff’s own admission, his mother did need to have specialized 14 expertise to ascertain that there might have been a denial of FAPE. Second, the Court finds that 15 Plaintiff’s parents do not allege that they learned any new facts through the process of the one-to- 16 one independent study that they did not already know during the time Plaintiff was at VCUSD. 17 Many years of report cards, standardized test scores, and IEP reports clearly demonstrate that 18 Plaintiff was not making progress and had demonstrated difficulties specifically in reading and 19 language. 20 Finally, with respect to J.R., Plaintiff does not assert how the facts of the instant case are 21 parallel to the facts in J.R. and just states that there was a “case that rendered a decision on this 22 same subject.” (ECF No. 16 at 11–12 (citing J.R., 668 F. Supp. 3d 1054).) Plaintiff summarizes 23 J.R., noting the statute of limitations was tolled “due to the school district’s failure to explain and 24 disclose to parents information necessary to doubt [the school] district’s improper diagnosis of 25 student” and since autism was suspected, the school district’s “failure to assess the student for 26 autism resulted in denial of FAPE to student in violation of [the] IDEA.” (Id. at 11 (citing J.R., 27 668 F. Supp. 3d 1054).) Plaintiff also notes the ALJ in that case “failed to explain why the 28 information parents had (regarding their child’s diagnosis or lack of diagnosis) should have led 1 the parents to suspect their child required a further diagnosis or assessment.” (Id.) The Court 2 finds J.R. is inapposite to the facts of the instant case. Here, Plaintiff does not plead any facts of 3 suspected disability that was consciously ignored by VCUSD. In J.R., the school district failed to 4 assess in all areas of suspected disability not all areas of possible disability. 668 F. Supp. 3d 5 1054. VCUSD is also correct that Plaintiff ignores the fact that he alleges FSUSD assessed him 6 and identified him as having a specific learning disability on February 11, 2020, three years 7 before he ultimately filed his Due Process Complaint. (ECF No. 18 at 7–8; see also ECF No. 1 at 8 27.) The Court agrees that at a minimum Plaintiff “knew or should have known” about the facts 9 underlying his Due Process Complaint by at least that date. 10 ii. Whether an Exception to the Statute of Limitations Applies 11 The IDEA sets forth two exceptions to its statute of limitations. The statute of limitations 12 does not apply to a parent if the parent was prevented from requesting a due process hearing 13 because of: (1) “specific misrepresentations by the local educational agency that it resolved the 14 problem forming the basis of the complaint;” or (2) “the local educational agency’s withholding 15 of information from the parent that was required . . . to be provided to the parent.” 20 U.S.C. 16 1415(f)(3)(D); see also Cal. Educ. Code § 56505(1). 17 VCUSD asserts that “Plaintiff has not alleged and cannot allege any facts that VCUSD 18 made any specific misrepresentation to Plaintiff’s parents that it had resolved any problem 19 forming the basis of the” Due Process Complaint. (ECF No. 15-1 at 14.) VCUSD also notes that 20 “Plaintiff again also fails to explain what ‘misrepresentations’ and ‘withholdings of information’ 21 were made that prevented him from filing a Due Process Complaint for the five-year period from 22 when Plaintiff left VCUSD and when he finally filed the Due Process Complaint.” (Id. (emphasis 23 in original).) In opposition, Plaintiff again rests his argument on J.R. and argues VCUSD and 24 FSUSD misrepresented to his “parents the extent of his disabilities, whether through intentional 25 misrepresentation or omissions, which information related to [his] eligibility for special education 26 as a student with a specific learning disability, including his characteristics consistent with a 27 student who has dyslexia, dyscalculia, and dysgraphia.” (ECF No. 16 at 16 (citing J.R., 668 F. 28 Supp. 3d at 1074–75).) Plaintiff contends VCUSD never assessed him for these deficits and 1 needs, and therefore his “parents were left to rely upon the purported expertise” of both VCUSD 2 and FSUSD, “which in turn, prevented them from requesting a due process hearing, thereby 3 tolling the statute of limitations since 2013.” (Id. at 16–17.) 4 Here, the Court finds that Plaintiff’s Complaint does not allege facts sufficient to establish 5 that his parents were prevented from filing a Due Process Complaint because of VCUSD’s 6 “specific misrepresentations” or a “withholding of information.” See U.S.C. § 1415(f)(3)(D). In 7 J.R., the court found the ALJ erred by rejecting plaintiff student’s argument that defendant school 8 district misrepresented and/or withheld its findings regarding “its obligation to assess in all areas 9 of suspected disability,” thereby tolling the statute of limitations. 668 F. Supp. 3d at 1073, 1075. 10 The court concluded that defendant school district “did not disclose, but knew, that best practices 11 required further assessment [for autism] as early as 2012,” and that defendant school district “was 12 required to explain why it did not suspect autism even though reliable scientific methods 13 indicated this conclusion was, at the very least, premature.” Id. at 1074–75 (emphasis omitted). 14 The court noted that these reports “omitted key information” that prevented student plaintiff’s 15 parents from suspecting autism and, even worse, another report “specifically misrepresented that 16 [defendant school district] had appropriately assed J.R. for autism and concluded that he did not 17 have it.” Id. at 1075 (emphasis omitted). The court stated, therefore, even if plaintiff’s parents 18 began to suspect scores on the tests used to measure autism spectrum disorders “required further 19 assessment, they were reasonably led to believe such assessment had taken place.” Id. 20 In contrast, Plaintiff does not allege that VCUSD made specific misrepresentations that it 21 resolved the problem forming the basis of his Due Process Complaint (his specific learning 22 disability), nor does he allege VCUSD withheld information from his parents that was required 23 under the IDEA to be provided to his parents. (See ECF No. 1.) Plaintiff alleges the following in 24 his Complaint with respect to either a “withholding of information” and/or a “material 25 misrepresentation” of the extent of Plaintiff’s learning disability: 26 • 2013-2014 School Year: “By failing to provide either accurate present levels of 27 performance, or appropriate goals, including in the areas of phonemic awareness and 28 reading decoding, it was not possible for [Plaintiff’s] parents to have adequate information 1 upon which to be informed members of the IEP team.” (Id. at ¶ 49.) 2 • 2014-2015 School Year: “Because [VCUSD] did not provide [Plaintiff’s] parents with 3 adequate information concerning his present levels of performance and actual reading 4 abilities, they did not know the extent of his learning disability. In addition, [VCUSD] 5 personnel consistently reported to [Plaintiff’s] parents that his deficits were due to an 6 attention issue and did not report the learning disability.” (Id. at ¶ 63.) 7 • 2015-2016 School Year: “On February 26, 2016, [VCUSD] convened [Plaintiff’s] annual 8 IEP team meeting. [VCUSD] continued to assert [Plaintiff’s] difficulties in reading were 9 due to attentional issues . . . [Plaintiff] had a significant learning disability, but his parents 10 were not informed of this.” (Id. at ¶ 69.) 11 • 2016-2017 School Year: “[Plaintiff’s] teacher reported that he was making limited 12 progress in all academic areas and that he had a limited vocabulary. Moreover, [Plaintiff] 13 was blamed for his academic deficits, with his teacher noting that ‘once he can focus and 14 concentrate on his learning tasks and takes his studies more seriously, we will see 15 improvements in his academics.’” (Id. at ¶ 84.) “His teacher noted, ‘I’m sure if he 16 decides to do better, we will see the desired improvement next trimester.’” (Id. at ¶ 87.) 17 VCUSD’s triennial Psychoeducational Assessment Report was “inadequate,” as it “failed 18 to consider whether there was another cause for [Plaintiff’s] inability to read, aside from 19 attention deficits.” (Id. at ¶¶ 88–91.) “[VCUSD’s] failure to conduct an adequate 20 assessment was itself a material misrepresentation of [Plaintiff’s] needs.” (Id. at ¶ 92.) 21 Plaintiff’s “teacher again blamed him for his lack of progress, noting that he ‘needs to 22 improve his attitude towards school and his studies. School is fun but it is not all play. 23 Most importantly, he needs to be more organized, motivated, and want to learn to be 24 successful in middle school.’” (Id. at ¶ 107.) 25 The Court does not find that these statements by Plaintiff’s teachers or VCUSD amount to 26 a “material misrepresentation” or a “withholding of information” regarding his learning disability. 27 It appears from Plaintiff’s allegations that at times Plaintiff’s teacher stated that if he were to 28 work on his attentional issues, there would be improvements in his academics. However, Plaintiff 1 does not allege that at any point his teacher or VCUSD represented to him or his parents that his 2 attentional issues were the sole cause of his academic regression and/or failure to progress. As 3 stated previously, Plaintiff’s parents had many years of report cards, standardized test scores, and 4 IEP reports to clearly demonstrate that Plaintiff was not making progress and had demonstrated 5 difficulties specifically in reading and language. Further, VCUSD is correct that Plaintiff has not 6 alleged “any facts of any withholding of information that VCUSD was required to provide that 7 resulted in Plaintiff’s parents being prevented from filing a Due Process Complaint.” (ECF No. 8 18 at 9.) The Court therefore finds that neither of the exceptions under the IDEA to toll the 9 statute of limitations applies in the instant matter. See 20 U.S.C. 1415(f)(3)(D); see also Cal. 10 Educ. Code § 56505(1). 11 Based on the foregoing, the Court GRANTS VCUSD’s motion to dismiss Claim One. 12 The Court has serious doubts as to Plaintiff’s ability to allege further facts to establish one of the 13 foregoing exceptions to the IDEA’s statute of limitations. However, given the liberal standard in 14 favor of granting leave to amend, the Court cannot definitively state at this juncture that 15 amendment would be futile. See Lopez, 203 F.3d at 1130. Accordingly, the Court will grant 16 leave to amend on Claim One. 17 iii. Consideration of the Issue in Connection with an Evidentiary 18 Hearing 19 VCUSD asserts that Plaintiff contends, without citation to any supporting law, “that the 20 ALJ ‘was required to weigh the evidence on the statute of limitations issue at an evidentiary 21 hearing.’” (ECF No. 15-1 at 15 (citing ECF No. 1 ¶ 232).) VCUSD contends there is “simply no 22 law that requires an ALJ to conduct an entire evidentiary hearing to find facts that Plaintiff has 23 already [pleaded] in his own Complaint.” (Id.) Plaintiff does not address this issue in its 24 opposition (see ECF No. 16) and therefore concedes the argument. The Court therefore declines 25 to address this argument. 26 C. Claim Two: Violation of § 504 of the Rehabilitation Act 27 VCUSD argues Plaintiff’s § 504 claim will have the same “knew or had reason to know” 28 standard applied to determine the statute of limitations accrual date, and therefore the same 1 | analysis applicable to the IDEA claim is applicable to the § 504 claim. (ECF No. 15-1 at 16.) 2 | VCUSD contends that because Plaintiff failed to file within two years of the date his parents 3 | knew or had reason to know of the facts supporting the basis for his claim, the § 504 claim fails 4 | too. Ud.) Plaintiff does not address this issue in its opposition (see ECF No. 16) and therefore 5 | tacitly concedes this argument as well. 6 Based on the foregoing, the Court GRANTS VCUSD’s motion to dismiss Claim Two. 7 | Because the Court finds that amendment would be futile, Claim Two is also dismissed without 8 | leave to amend. See Lopez, 203 F.3d at 1130; Gardner v. Martino, 563 F.3d 981, 990 (9th Cir. 9 | 2009) (finding no abuse of discretion in denying leave to amend when amendment would be 10 | futile). 11 IV. CONCLUSION 12 Based on the foregoing, the Court hereby GRANTS VCUSD’s motion to dismiss (ECF 13 | No. 15) with leave to amend. Plaintiff may file an amended complaint, only to cure the 14 | deficiencies addressed in Claim One, not later than thirty (30) days from the electronic filing date 15 | of this Order. Defendants shall file a responsive pleading not later than twenty-one (21) days 16 | from the filing date of the amended complaint. If Plaintiff opts not to amend the complaint, the 17 | Court will dismiss the action and close the case. 18 IT IS SO ORDERED. 19 | DATE: September 30, 2024 20 21 22 7, 23 TROY L. NUNLEY 34 CHIEF UNITED STATES DISTRICT JUDGE 25 26 27 28 19