Moser v. Bret Harte Union High School District (366 F. Supp. 2d 944, 2005)

ORDER RE: SANCTIONS FOR ATTORNEY’S VIOLATIONS OF DUTY OF CANDOR AND NOT TO IMPEDE, OBSTRUCT, OR TO VEXATIOUSLY MULTIPLY PROCEEDINGS

WANGER, District Judge.

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. atV2.

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 evidentia-ry 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 Plaintiffs 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 Plaintiffs 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.

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.

III. 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.

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 International 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. Hartman Corp., 496 U.S. 384, 110 S.Ct. 2447, 110 L.Ed.2d 359 (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).

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); cf. 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).

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. & KB. Investments, 326 F.3d 1096, 1109; In re Grantham Bros., 922 F.2d 1438, 1442 (9th Cir.1991), 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.2d 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).

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, 107 S.Ct. 2607, 96 L.Ed.2d 557 (1987) (district courts have clear statutory authority to promulgate rules governing the admission and conduct of attorneys who appear before them).

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; (C) 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. Securities Litig. v. Keegan Management Co., 78 F.3d 431, 435 (9th Cir.1996). 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) (“[Recklessness 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 Aleros 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, 100 S.Ct. 2455, 65 L.Ed.2d 488 (1980); Primus Auto. Fin. Services v. Botarse, 115 F.3d 644, 648 (9th Cir.1997); Yagman v. Republic Ins., 987 F.2d 622, 628 (9th Cir.1993) (In sanctioning counsel, “[e]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 malafides, 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, 100 S.Ct. 2455.

IV. ANALYSIS

Lozano, Smith’s, Ms. Yama’s, and the District’s actions in these proceedings have greatly increased the work of Plaintiffs 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 mischar-acterization 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. 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” Plaintiffs 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.”

Regardless of Plaintiffs 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 Plaintiffs undisputed fact: “argument and conclusion. Misstates testimony. J. Moser did not testify that Plaintiffs 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 “plaintiffs 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 Plaintiffs 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 Plaintiffs undisputed fact, AR 3783, states exactly what Plaintiff contends it states: “Valleeito 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 Plaintiffs 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 Plaintiffs 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. Plaintiffs 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” Plaintiffs 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 Plaintiffs 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 narcolep-tics; 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-eognitive or neuro-developmental delay.

(9) Defendant objects to Plaintiffs 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: T 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 Plaintiffs 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 Plaintiffs undisputed facts # 32 and # 33.

These objections deterred the finding of genuinely undisputed facts.

(11) Defendant objects to Plaintiffs undisputed fact # 38, which states, “10/25/94 Robert’s mother was understandably confused by the October 1994 process, seeing Robert as ‘semi-qualified,’ 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” Plaintiffs 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 Plaintiffs 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 Plaintiffs statement of undisputed facts. Defendant and its attorneys continued to make similar frivolous objections throughout their “amended response and opposition to Plaintiffs 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.” UF57, Doc. 72.

Mr. Smith’s testimony contradicts Defendant’s claim. 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-Reyno-so, Plaintiffs sophomore learning director, “communicated with Plaintiffs 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.

(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.

(4) According to Defendant, “Mr. Smith, the school counselor, and the learning director, Saundra Wimberly, tracked Plaintiffs 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.

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 Plaintiffs 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 Plaintiffs 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 Plaintiffs 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 Kin-near 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 lp5 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 Plaintiffs 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 (Plaintiffs 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/or 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, Plaintiffs 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 Plaintiffs 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 Sil-cox testified that, at the October 199k 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. Plaintiffs 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 Plaintiffs 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 Plaintiffs 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 Sileox’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 Plaintiffs 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 Plaintiffs 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 873:18-22.

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 sime 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 Mend 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 Mend 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 i