Free Response in Opposition to Motion - District Court of California - California

Case 3:08-cv-00412-L-JMA

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Filed 03/19/2008

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MILLER BROWN & DANNIS 301 EAST OCEAN BOULEVARD SUITE 1750 LONG BEACH, CA 90802

SUE ANN SALMON EVANS, State Bar No. 151562 [email protected] DEBORAH L. UNGAR, State Bar No. 207763 [email protected] ANAHID HOONANIAN, State Bar No. 196679 [email protected] MILLER BROWN & DANNIS 301 East Ocean Boulevard, Suite 1750 Long Beach, CA 90802 Telephone: (562) 366-8500 Facsimile: (562) 366-8505 Specially Appearing for Defendant Encinitas Union School District UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA B.M., a minor by and through R.M., Plaintiff, v. Encinitas Union School District, Defendant. Case No. 08 CV 412 L JMA DECLARATION OF ANAHID HOONANIAN IN SUPPORT OF ENCINITAS UNION SCHOOL DISTRICT'S OPPOSITION TO PLAINTIFF'S APPLICATION FOR ORDER SHORTENING TIME FOR THE HEARING OF THE MOTION FOR STAY PUT PLACEMENT Dept : Judge : Courtroom 14 Honorable M. James Lorenz

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Complaint Filed: March 4, 2008 Complaint Served: March 6, 2008

I, Anahid Hoonanian, declare: 1. I am special counsel with the law firm of Miller Brown & Dannis and

an attorney licensed to practice in the State of California. The Encinitas Union School District ("District") is specially appearing in the above-entitled matter. I am one of the attorneys for the District and I have personal knowledge of the matters

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DECLARATION OF ANAHID HOONANIAN IN SUPPORT OF ENCINITAS UNION SCHOOL DISTRICT'S OPPOSITION TO PLAINTIFF'S APPLICATION FOR ORDER SHORTENING TIME

Case 3:08-cv-00412-L-JMA

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MILLER BROWN & DANNIS 301 EAST OCEAN BOULEVARD SUITE 1750 LONG BEACH, CA 90802

stated within this Declaration unless stated upon information and belief. If called upon as a witness I could and would testify competently to the matters stated herein. 2. The District is only specially appearing for purposes of opposing

Plaintiff's application for order shortening time for the hearing of a motion for stay put placement. 3. The District was served with Plaintiff's Complaint on March 6, 2008,

and responsive pleadings are due on March 26, 2008. 4. The District has not filed its responsive pleadings or otherwise

appeared in the action. 5. At 3:22 p.m., on Thursday, March 13, 2008, Drew Massey, counsel for

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Plaintiff B.M., a minor by and through R.M. ("Plaintiff"), telephoned me and left me a voice mail message stating that he had served the District with a Complaint appealing the administrative hearing decision involving his client B.M. and the District. His voice mail stated Mr. Massey wanted to talk to me because Plaintiff would be filing a stay put motion and requesting an order shortening time. Mr. Massey's voice mail also stated that he had a Guardian Ad Litem Order and Application for Use of Pseudonyms that he wanted to fax over and he wanted to know if I would accept such a fax from him. 6. I called Mr. Massey back the same afternoon to clarify his requests.

When I asked Mr. Massey for the basis of a stay put motion, he would not provide one. Instead, Mr. Massey stated there were many letters that had gone back and forth on that issue. Mr. Massey did not give me any information regarding when and where the application or motion would be filed. 7. With the exception of the Complaint served on the District on March 6,

2008, Plaintiff has not served the District with any documents, including Plaintiff's Application For Order Shortening Time For The Hearing Of The Motion For Stay Put Placement.
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DECLARATION OF ANAHID HOONANIAN IN SUPPORT OF ENCINITAS UNION SCHOOL DISTRICT'S OPPOSITION TO PLAINTIFF'S APPLICATION FOR ORDER SHORTENING TIME

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MILLER BROWN & DANNIS 301 EAST OCEAN BOULEVARD SUITE 1750 LONG BEACH, CA 90802

8.

I have informed Counsel for Plaintiff orally and in writing that we do

not agree to accept service of documents via facsimile or U.S. Mail, as the District has not appeared yet. 9. On March 14, 2008, I wrote Timothy Adams, counsel for Plaintiff, to

inform him that while he may send copies of the Petition and Order for Appointment of Guardian Ad Litem and Application for Use of Pseudonyms to my attention via facsimile, we do not agree to accept service by facsimile for the purposes of these two documents or any future filings, as the District has not yet appeared in the action. A true and correct copy of the March 14, 2008 letter is attached hereto as Exhibit 1. 10. On the same day, I wrote Drew Massey to confirm our telephone

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conversation regarding his proposal to provide me with courtesy copies of the Petition and Order for Appointment of Guardian Ad Litem and Application for Use of Pseudonyms. A true and correct copy of my letter to Drew Massey dated March 14, 2008 is attached hereto as Exhibit 2. I informed him once again that while he may send the two documents to my attention via either facsimile or U.S. Mail., we do not agree to accept service by facsimile or by mail for the purposes of these two documents or any future filings, because the District has not yet appeared in the action. 11. On March 17, 2008, I wrote Drew Massey, counsel for Plaintiff and

reiterated that the District has not yet appeared in this action, and as such, the only means for Plaintiff to accomplish service upon the District is by personal service upon the District, not facsimile or mail to counsel for the District. A true and correct copy of the March 17, 2008 letter to Drew Massey is attached hereto as Exhibit 3. 12. The Proof of Service attached to Plaintiff's Application For Order

Shortening Time For The Hearing Of The Motion For Stay Put Placement indicates
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DECLARATION OF ANAHID HOONANIAN IN SUPPORT OF ENCINITAS UNION SCHOOL DISTRICT'S OPPOSITION TO PLAINTIFF'S APPLICATION FOR ORDER SHORTENING TIME

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MILLER BROWN & DANNIS 301 EAST OCEAN BOULEVARD SUITE 1750 LONG BEACH, CA 90802

the District was not properly served. Rather, Plaintiff provided the undersigned with copies of the documents via U.S. Mail and facsimile. 13. The District has never ceased funding B.M.'s in-home ABA services.

Even after B.M.'s parents, in violation of the January 2007 Settlement Agreement, removed him from school-based services at Flora Vista Elementary School, the District continued to honor its obligation under the Settlement Agreement by funding the in-home ABA program. A true and correct copy of the Settlement Agreement is attached hereto as Exhibit 4. 14. Even after the issuance of the administrative hearing decision on

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January 30, 2008, the District has not ceased funding the in-home ABA services. The District has continued to receive invoices from the in-home ABA service provider and it has continued to make payments on invoices received. 15. The District has never stated or threatened to stop funding stay put

services, including the in-home ABA therapy set out in the January 2007 Settlement Agreement. 16. Upon review of the application and motion papers I wrote to Plaintiffs'

attorney, Timothy Adams, requesting that he withdraw his application and motion on the grounds that it was procedurally and substantively improper. Attached hereto as Exhibit 5 is a true and correct copy of the March 19, 2008 letter to Mr. Adams. As of the time this opposition was filed, we had received no response from Mr. Adams. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed this 19th day of March, 2008, at Long Beach, California.

/s AH ANAHID HOONANIAN
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DECLARATION OF ANAHID HOONANIAN IN SUPPORT OF ENCINITAS UNION SCHOOL DISTRICT'S OPPOSITION TO PLAINTIFF'S APPLICATION FOR ORDER SHORTENING TIME

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