Charis Quatro v. Tehachapi Unified School Dist. ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 19 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHARIS QUATRO, No. 17-16210
Plaintiff-Appellee, D.C. No. 1:16-cv-01213-DWM
v.
MEMORANDUM*
TEHACHAPI UNIFIED SCHOOL
DISTRICT,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of California
Donald W. Molloy, District Judge, Presiding
Submitted November 13, 2018**
San Francisco, California
Before: FISHER and M. SMITH, Circuit Judges, and BUCKLO, District Judge.***
Tehachapi Unified School District appeals the district court’s award of
attorney’s fees to Charis Quatro, the parent of R.Q., who was the prevailing party
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Elaine E. Bucklo, United States District Judge for the
Northern District of Illinois, sitting by designation.
in an administrative due process hearing under the Individuals with Disabilities
Education Act. We have jurisdiction under 28 U.S.C. § 1291 and affirm.
1. The district court did not abuse its discretion in allowing Quatro to
present the testimony of Gustavo Cortes and Brenda Markham, whose names were
not included in Quatro’s initial disclosures, and by relying on their testimony as
part of Quatro’s case-in-chief. Even if Quatro should have disclosed Cortes’ and
Markham’s names earlier under Federal Rule of Civil Procedure 26(a)(1)(A)(i), we
can fairly discern from the record that the late disclosure was substantially justified
and harmless, and therefore excusable under Federal Rule of Civil Procedure
37(c)(1). See Conn. Gen. Life Ins. Co. v. New Images of Beverly Hills, 482 F.3d
1091, 1096 (9th Cir. 2007) (holding we may review the record independently to
determine if the district court has abused its discretion in applying Rule 37). It was
substantially justified because it was triggered by the District’s own late disclosure
of three declarations two weeks before trial, and it was harmless because each
party was able to present its arguments about the fee dispute. Although the District
says it was prejudiced, it has not identified any evidence it would have presented
had it been afforded earlier notice of the testimony.
2. The district court did not abuse its discretion in calculating the
lodestar using rates from outside the local market. See Barjon v. Dalton, 132 F.3d
496, 500 (9th Cir. 1997). Quatro presented ample evidence that local counsel was
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unavailable, including Quatro’s own declaration, the testimony of Cortes and
Markham, reports describing the limited access to legal representation in rural
California and declarations describing the lack of local attorneys who were willing
and qualified to represent clients in special education matters. The district court
reasonably determined that $450 was a reasonable hourly rate for attorney Andréa
Marcus.
AFFIRMED.
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