                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           DEC 04 2018
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT

MICHAEL GAREDAKIS and TAMARA                     No. 17-16547
GAREDAKIS; M.G., a minor by and
through his guardian ad litem Michael            D.C. No. 4:14-cv-04799-PJH
Garedakis; et al.,

              Plaintiffs-Appellants,             MEMORANDUM*

 v.

BRENTWOOD UNION SCHOOL
DISTRICT; et al.,

              Defendants-Appellees.


                    Appeal from the United States District Court
                      for the Northern District of California
                    Phyllis J. Hamilton, Chief Judge, Presiding

                     Argued and Submitted November 16, 2018
                             San Francisco, California

Before: HAWKINS, GRABER, and THACKER,** Circuit Judges.

      Plaintiffs are the parents of special-needs minors. They sued the Brentwood

Union School District and some of its employees for violations of the Americans

      *
        This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
        The Honorable Stephanie Dawn Thacker, Circuit Judge for the United
States Court of Appeals for the Fourth Circuit, sitting by designation.
with Disabilities Act of 1990 ("ADA"), the Rehabilitation Act of 1973, and various

California laws; all claims relate to alleged abuse that Plaintiffs’ children suffered

at the hands of one of the District’s teachers. The district court granted summary

judgment to Defendants. The court also awarded nearly $600,000 in fees and costs

to Defendants under section 1038 of the California Code of Civil Procedure on the

ground that the state tort claims were "not brought in good faith and with

reasonable cause." In this appeal, Plaintiffs challenge the award of fees and costs.

We review a fee award under state law for abuse of discretion, except that we

review de novo whether reasonable cause to bring a claim existed under section

1038. Nuveen Mun. High Income Opportunity Fund v. City of Alameda, 730 F.3d

1111, 1128 n.10 (9th Cir. 2013). We vacate the award and remand.

      1. Under the ADA, defendants may recover fees only for defending against

frivolous claims. Here, the district court did not find that the ADA claims were

frivolous. Rather, the court found that the state tort claims were not brought "in

good faith and with reasonable cause" only because Plaintiffs did not present

timely written demands to the District, as required by state law. To the extent that

the fee award compensates Defendants for work pertaining to Plaintiffs’ ADA

claims, section 1038 conflicts with the ADA and is preempted. See Or. Coast

Scenic R.R. v. Or. Dep’t of State Lands, 841 F.3d 1069, 1072 (9th Cir. 2016)


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(reviewing the extent of preemption de novo); Hubbard v. SoBreck, LLC, 554 F.3d

742, 745 (9th Cir. 2009) (holding that the ADA preempts another California fee-

shifting statute to the extent that it authorizes defendants to recover fees for

defending against non-frivolous ADA claims); see also Kohler v. Presidio Int’l,

Inc., 782 F.3d 1064, 1070–71 (9th Cir. 2015) (refusing to overrule SoBreck in

reliance on a California Supreme Court case, because preemption is a question of

federal law).

      2. The award manifestly includes time spent defending against the ADA

claims. The district court mistakenly stated that the fee request (about $514,000)

did not include any time that counsel spent defending against the federal claims. In

fact, defense counsel stated that, for the most part, they could not segregate their

work on federal versus state claims, so they reduced the amount of time claimed

for the federal-and-state work in the aggregate by about half. The court never

assessed whether a reduction of only about half is reasonable in the face of

Defendants’ assertions that the state-law claims were obviously not brought "in

good faith and with reasonable cause." In addition, the court failed to observe that,

in some instances, counsel did not reduce the fee request at all. Compare, for

example, ER 979, reducing by half the time spent working on the motion for

summary judgment on March 1, 2016, with ER 979–80, making no reduction for


                                            3
time that the same lawyer spent working on the same motion on March 4 and 8,

2016. Similarly, the court awarded fees to Defendants for the full amount of time

spent on depositions, even though the lawyer who conducted the depositions

declared that the work performed on the state claims could not be distinguished

from that performed on the federal claims. ER 822, 889–91, 900, 907, 916–17,

924.

       3. The state-law claims of the Garedakis family were brought with

reasonable cause. This court reversed the summary judgment for Defendants as to

that family. Garedakis v. Brentwood Union Sch. Dist., 2018 WL 4849695, at *2

(9th Cir. Oct. 5, 2018) (unpublished).

       4. The state-law claims of the Rose and Razaqi families were brought

without reasonable cause. They concede that they did not present written claims to

the District before filing suit.

       5. With respect to the Jackson and Gullo families, the district court erred as

a matter of fact and as a matter of law. Both families submitted notices to the

District, which the District returned to them, unfiled, as untimely pursuant to

California Government Code section 911.3, despite the families’ assertions of

delayed discovery. The District did not, as the court stated, deny the claims.

When a public entity returns a claim as untimely (as distinct from rejecting the


                                           4
claim), the claimant may sue in court and allege compliance with the claim-

presentation requirement. Mandjik v. Eden Twp. Hosp. Dist., 6 Cal. Rptr. 2d 582,

586–87 (Ct. App. 1992); see also Ngo v. County of Los Angeles, 255 Cal. Rptr.

140, 142–43 (Ct. App. 1989) (holding that it is proper to file suit in court and

allege substantial compliance); Cal. Gov’t Code § 945.4 (precluding suit only if the

plaintiff presented a written claim that the public entity affirmatively rejected). On

de novo review, Nuveen, 730 F.3d at 1128 n.10, we conclude that the Jackson and

Gullo families had reasonable cause to file this action.

      VACATED and REMANDED. Costs on appeal awarded to Plaintiffs-

Appellants.




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